Rabi vs State

P. Murgesen, J.—This Criminal Appeal is directed against the judgment passed in S.C. No. 74 of 1997 on the file of the Additional Sessions Judge, Kanyakumari District at Nagercoil, dated 11.03.2002.

The appellant is the first accused and the respondent is the complainant.

The case of the prosecution is as under:

P.W.1-Vincent is the resident of Kallankuzhi, Marthandanvilai. The deceased Ponnappan was his brother. P.W.2-Palaiyan is the resident of Kallankuzhi and he is an agriculturist. P.W.3-Chelliahkan and P.W.4-Singarayan are also the residents of Kallankuzhi. P.W.5-Robinson is the resident of Manalikarai, Christhavapuram. P.W.6-Lazer is the resident of Vayanadu. The deceased''s wife is the sister of P.W.6. P.W.7-Christudhas is the resident of Kallankuzhi and he is a coolie worker. P.W.8-Kanagappan is the resident of Anaiyadi and he is also a coolie worker. P.W.9-Rasaiyan is the resident of Kallankuzhi. P.W.10-Thangam is the wife of the deceased Ponnappan.

The deceased Ponnappan is the husband of P.W.10 and elder brother of P.W.1. P.W.6 is the elder brother of P.W.10, and brother-in-law of the deceased. The first accused is the paternal uncle''s son of P.Ws.10 and 6. On 28.06.1993 at 11.30 p.m., the deceased and P.W.1 went to Mavaravilai to arrange labourers. While they were returning from Mavaravilai to their house, the occurrence took place. The first accused-Rabi obstructed the deceased and attacked him with Vettukathi (sic), the second accused-Raja @ Sam Selvakumar attacked the deceased with a rod (sic), the third accused-Rajathambi attacked the deceased with a rod (sic). The fourth accused-Thangamani was present in the place of occurrence. When the first accused attacked the deceased repeatedly, the cuts fell on the fourth accused. Also, the cuts made by the second and the third accused on the deceased fell on the fourth accused.

There were cases between the prosecution witnesses and one Chelladurai with regard to a land dispute even before two years of the date of occurrence. The second accused-Raja, who is an Advocate, intervened in the matter and made a compromise between them and in the result, the deceased Ponnappan was directed to pay an amount, but he did not pay the amount. So there was an enmity between them. On the date of occurrence, there was no light failure, which is evident from the evidence of P.W.13-Raj, who was the Switch Operator in the Panchayat Office of Kallankuzhi.

After the occurrence, P.W.1 took the deceased in a car driven by P.W.11, to Kottar Government Hospital. The deceased Ponnappan was admitted in the Kottar Government Hospital, Nagercoil at about 01.15 a.m. on 29.06.1993 and at that time, he was unconscious. P.W.14-Dr.Sornam examined the deceased and found the following injuries:

30 cm x 1 cm x depth not probed due to bleeding. Brain comes out on the back. Oblique incised wound from the right eyebrow (nc) the left parietal region depth from right side to left bleeding present.

Ex.P8 is the Accident Register issued for the treatment given to the deceased by P.W.14. Thereafter P.W.14 gave intimation about the admission of the deceased to the hospital, to Police under Ex.P9.

P.W.25-Chandrasekaran was the First Grade Constable in the Kottar Police Station. On receipt of Ex.P9 from the hospital, he went to the Kottar Government Hospital and recorded the statement from P.W.1 at about 01.50 a.m. on 29.06.1993. Thereafter P.W.25 gave information to P.W.26, who was the Head Constable of Thiruvettar Police Station, since the place of occurrence falls within the jurisdiction of Thiruvettar Police Station. P.W.26, on receipt of the information from P.W.25 and the statement of P.W.1, registered a case in Crime No. 409 of 1993 at about 05.30 hours on 29.06.1993 under Sections 341 and 324 IPC and prepared Ex.P23-printed First Information Report and sent the same to the Judicial Magistrate, Padmanabhapuram and the concerned officials. Thereafter, the investigation was taken over by P.W.27-Sub-Inspector of Police of Thiruvettar Police Station. He took up the case for further investigation at about 06.45 a.m. on 29.06.1993. P.W.27 thereafter, visited the scene of occurrence at about 07.30 hours on that day in the presence of witnesses and prepared Ex.P2-Observation Mahazar and Ex.P24-Rough Sketch in the presence of P.W.3 and one Balu. Thereafter P.W.27 recovered M.O.2-Blood-stained earth and M.O.3-Sample earth under the cover of Ex.P3-Athakshi.

In the mean time, the fourth accused-Thangamani, who also sustained injuries in the attack, was admitted in the Kottar Government Hospital, Nagercoil. He was treated by P.W.17-Dr. P. Kandappapillai. P.W.17 found as many as 12 injuries on A-4 and issued Ex.P14-Wound Certificate to that effect. The injuries as stated in Ex.P14 are as under:

1) An incised wound of 2x1x1cm over the lower 1/3 of right forearm.

2) An abrasion of 1x1cm over the middle 1/3 of the right forearm with swelling.

3) Contusion of 3x2cm over the right hand.

4) Abrasion of 1x1cm over the posterior aspect of right arm (nc)

5) An abrasion 1 x. cm over the middle of the lateral aspect.

6) An incised like wound of 8x1x1cm over the middle of scalp (partial region)

7) A lacerated wound of 1x1cm over the lateral aspect of left eyebrow.

8) A contusion of 10x6cm over the lateral aspect of left side of chest.

9) A lacerated wound of 2x1x. cm over the posterior aspect of left elbow.

10) A contusion of 6x2cm over the left lateral aspect of thigh.

11) Fullness of abdomen with tenderness.

12) An incised wound of 5x2x1cm over the (nc) border of left little fingers on its base.

P.W.19-Velappan, who was the constable attached to Kottar Police Station, on receipt of intimation from the hospital, went to the hospital and recorded the statement from A-4 under Ex.P19 at about 09.30 hours on 29.06.1993 and forwarded the intimation and statement to Thiruvettar Police Station. P.W.23 was the Head Constable in the Thiruvettar Police Station at that time. On receipt of the statement of the fourth accused, he registered the case in Crime No. 410 of 1993 at about 18.00 hours on 29.06.1993 under Sections 147, 148, 452, 323 and 324 IPC and prepared Ex.P21-Printed F.I.R.

At about 12.45 hours on 29.06.1993, the deceased Ponnappan died.

P.W.15-Dr. Radhakrishnan gave death intimation under Ex.P11. P.W.20, on receipt of the death intimation, forwarded the same to Thiruvettar Police Station at about 17.30 hours on that day. On receipt of the death intimation of the deceased, P.W.23, who was the Head Constable in the Thiruvettar Police Station, altered the case in Crime No. 409 of 1993 to Section 302 IPC and prepared Ex.P20- Express Report.

P.W.27-Sub-Inspector of Police in the Thiruvettar Police Station, conducted inquest over the body of the deceased at 7.30 a.m. on 29.06.1993 and prepared Ex.P25-Inquest Report. Thereafter, he gave a requisition under Ex.P12 to conduct post mortem over the body of the deceased through P.W.22-Constable. P.W.16-Dr.Muthuraj, attached to the Kottar Government Hospital, on receipt of Ex.P12, conducted post mortem on 30.06.1993 and issued Ex.P13-Post Mortem Certificate. It is stated in the Post Mortem Certificate as under:

Appearances found at the Post Mortem:

A male body lies on back. Moderately nourished sym with the following external injury:

1) A small abrasion over the anterior surface of the elbow joint 2cm x 1 cm.

2) A sutured wound running obliquely from the right outer end of the eyebrow partly over the right frontal bone; left parietal bone 30cm in length. Eyelids closed. Heart 350g C/s. Chambers empty. Lungs Right 600 gms. Left 500 gms. C/s congested Hyoid bone intact. Stomach 150 gms c/s Stomach empty. Liver 1900G. C/s congested. Spleen 150gms C/s Congested. Kidneys 200G. C/s congested. Brain 1400G C/s congested. Skull (torn) of the skin over the scalp blood clot (large) seen over the (torn) parietal bone. A fracture seen from the right orbit passing upwards & backwards across the right frontal bone extending to the left parietal bone 25cm in length.

On dissection of the skull bone the brain matter found cut in the left parietal lobe and right frontal lobe over the upper surface. (sic) Blood clot seen over the brain surface more on the left side 150ml of blood in the Cranial cavity.

Thereafter, P.W.28-Inspector of Police took up further investigation in the matter and examined the witnesses on 08.07.1994. Then, P.W.29-Inspector of Police took up the case for further investigation. After completing the investigation, he filed the charge sheet against the accused on 17.02.1995 under Sections 341 and 302 r/w 34 IPC.

Before the Trial Court, P.Ws.1 to 29 were examined and Exs.P1 to P26, D1 to D16 and M.Os.1 to 6 were marked. On consideration of the evidence on record, the Trial Court convicted the first accused u/s 341 IPC and sentenced to undergo one month S.I.; convicted the first accused u/s 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- in default to undergo 1 year imprisonment. The Trial Court acquitted the accused 2 to 4.

Challenging the conviction and sentences imposed by the Trial Court, the present Criminal Appeal has been filed by the appellant/first accused.

The motive as projected and portrayed by the prosecution is that there was a dispute between the deceased Ponnappan and one Chelladurai. The second accused, who is an Advocate, interfered in the matter and made a compromise and in that compromise, the deceased Ponnappan was directed to pay an amount, but he did not pay the amount. So there was an enmity between them. The difference of opinion was spoken to by P.W.10-the wife of the deceased, and P.W.12.

Evidence of P.W.10 would show that there was no civil dispute between the deceased Ponnappan and Chelladurai, but it is the evidence of P.W.12 that there was a civil case between them. Admittedly, P.Ws.1, 7 and 12 are having number of criminal cases. Even P.W.12 was detained under the Goondas Act and he was having 5 criminal cases in his credit. P.Ws.1, 7 and 12 are accused in various cases. Apart from that, they are having number of cases. According to the prosecution, the dispute was between the deceased Ponnappan and one Chelladurai. Here it has to be noted that the said Chelladurai was not examined. If the deceased Ponnappan was not prepared to pay the amount as per the settlement, A-1, A-3 and A-4 need not have any grievance over the non- payment of the amount, because the dispute was only between the deceased Ponnappan and one Chelladurai. The non-examination of the said Chelladurai is a defect in the case of the prosecution.

The second accused gave the complaint against the complainant-party which has been registered under Ex.P22 in Crime No. 389 of 1993 on the file of the Thakkalai Police Station. In this case, there is a doubt about the scene of occurrence as raised by the Senior Counsel. The complainant-party claimed that they were returning from Mavaravilai to Kallankuzhi Road. The Investigating Officer said that there was no necessity for them to come to the scene of occurrence at that time. Though the witnesses claimed that they went to secure some persons for carrying out some work, the non-explanation on the side of the prosecution as to why they have chosen a different route when there was a straight road to the house, creates a doubt in the case of the prosecution.

Learned Senior Counsel appearing for the appellant/first accused has stated that the theory of securing the persons for work is not correct. According to the prosecution, the occurrence took place in the road and the same is depicted in the Sketch as No. 1. The fourth accused''s house is situated 30 feet from the scene of occurrence, but the prosecution claimed that blood- stained earth was recovered from the scene of occurrence. P.W.11 is the taxi driver, engaged in removing the victim from the scene of occurrence to the hospital. His evidence would disclose that the deceased Ponnappan was taken from the house of the fourth accused. The deceased Ponnappan had no business to enter into the house of the fourth accused. There was no necessity for P.W.11 to depose against the prosecution witnesses. His evidence nails the case of the prosecution. It is clear from his evidence that the victim was removed from the house of the fourth accused. The occurrence took place in the night. The complainant party has no business to enter into the house of the fourth accused. On behalf of the fourth accused, a complaint was given under Ex.P21 in Crime No.410 of 1993 on the file of the Thiruvettar Police Station, which would show that the complainant party entered into the house of the accused and attacked them. That case was not investigated by the Investigating Officer according to law. When such a serious allegation was mentioned, P.W.7 was not enquired by the Police as regards how A-4 sustained injuries. So, that case was not disposed according to law. This would go to show that the Investigating Officer did not investigate the case properly. A-4 sustained 12 injuries. According to the prosecution, there are few injuries sustained by A-4, but on the other hand, he sustained 12 injuries in which 1 injury was grievous in nature and 4 ribs were broken. This all would go to show the force with which the attack was made on A- 4, but A-1 and A-3 would not have delivered such a huge blow on A-4, who is their own father, when he alleged to have intervened in the attack. So, the theory of the prosecution that A-4 sustained injuries when he intervened in the attack, falls to the ground. Moreover, P.W.1 admitted in his evidence that A-4 was aged 75 years at the time of occurrence and he was not in a position to walk. P.W.1 also admitted that A-4 sustained only 5 to 6 injuries. When A-4 was not in a condition to walk, the case of the prosecution that A-4 intervened in the attack cannot be true. Therefore, the case of the prosecution that an old man who was in immobile condition was assaulted by his sons, cannot be true. So, the non-explanation of the injuries on A-4 and the shifting of the scene of occurrence, would clearly demolish the case of the prosecution. The motive attributed is not established in the manner known to law.

Further, the learned Counsel for the appellant/first accused raised a doubt about the origin of F.I.R. P.W.25 admitted that, once he receives a complaint, he would make an endorsement as to what was recorded by him. He also admitted that in the words endorsed in the F.I.R. relating to Crime No. 281 of 1993 and that of Ex.P1 are different. As per the evidence of P.W.25 he would not have received the complaint from the victim. Moreover, in Ex.P1, the signature is not that of P.W.25. On the same day, he received another complaint from A-4 which has been marked as Ex.D11. He admitted that the signature in Ex.D11 is correct. A comparison of Ex.P1 and Ex.D11 would show that the signatures in both these documents, varies. He admitted the variation of signatures in both these documents. Both the F.I.Rs have been endorsed by him. Further, his name is Chandrasekar and he will not write his name as "Chandan" in the records, but it is shown as "Chandran" in Ex.P1. When P.W.25 was assertive that he will not sign as "Chandran" in the Government records, the presence of the name "Chandran" who was said to have recorded the statement, would show that F.I.R. is not true. So, when the F.I.R. itself is suspicious, the entire case of the prosecution is bound to fail.

Learned Senior Counsel appearing for the appellant/first accused relied on the judgments of the Hon''ble Supreme Court in State of Punjab v. Mohri Ram and Ors. 1994 Scc (Cri) 737 and in Marudanal Augusti v. State of Kerala 1980 Scc (Cri) 985 and argued that since the F.I.R. itself is held to be fabricated, the entire prosecution''s case would collapse.

It is seen from the evidence on record that the complainant-party are having number of cases to their credit. There are 15 Nos. of F.I.Rs filed on the side of the defence which would show that the eye-witnesses are involved in the criminal cases. Further the evidence of P.W.16-the Doctor, who conducted post mortem over the body of the deceased, would shake the case of the prosecution. He said that the victim sustained one injury in the forehead. In this case, the weapon is shown as "Vettukathi". The doctor opined that the injuries would have been caused by a bent weapon, but the injuries sustained by the deceased, would show that there is a doubt about the weapon produced on the side of the prosecution. Further, the doubt raised by the doctor, as stated above, is not answered on the side of the prosecution. This also creates suspicion in the case of the prosecution.

Learned Counsel appearing for the appellant/first accused, has submitted that the F.I.R. reached the Court belatedly. The F.I.R. was lodged on 29.06.1993 at 05.30 a.m., but it reached the Court only at 6.55 p.m. on that day. The distance between the Police Station and the Magistrate''s Court is not far off, but the F.I.R. reached the Court belatedly. For this, no convincing reason was adduced on the side of the prosecution. Further the complaint given by the accused-party was not investigated properly.

In the facts and circumstances recited above, we are clearly of the view that the prosecution has not come up with the true story. It has suppressed the facts. If that be the case, the whole prosecution story would stand on quicksand. The prosecution has failed to establish its case beyond reasonable doubt. It is a well-settled principle of law that if two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted. Therefore, the conviction and sentences imposed on the appellant/first accused are liable to be set aside.

In the result, the conviction and sentences imposed on the appellant/first accused are set aside and the appellant/first accused is acquitted of all the charges levelled against him. Accordingly, the Criminal Appeal is allowed.