Rajendran vs State

R. Mala, J.—The Criminal Appeal is arising out of the judgment of conviction and sentence, dated 20.06.2006 made in S.C.No. 449 of 2005 on the file of the Additional District and Sessions Judge, F.T.C.No. III, Madurai, whereby the accused were convicted and sentenced as follows:

The case of the prosecution is as follows:

(i) P.W.1 Muniyasamy is the father of the injured Ramar, P.W.2. Both P.W.1 and P.W.2 are working as Tri-cycle riders. On 04.02.2005 at 3.15 p.m., when P.W.1, the father of P.W.2 and P.W.2 returning from their work to take lunch, due to the previous enmity between A1 Rajendran and P.W.2 Ramar, A1, with a common intention to murder P.W.2, uttered the words to do away him and A3 assaulted P.W.2 on his head with sickle. The juvenile accused Kalidass assaulted P.W.2 with knife on his left hand. P.W.2 became unconscious. P.W.1 made a hue and cry. At that time, the accused threatened them and made criminal intimidation. P.W.1 taken his son P.W.2 to the hospital through an Auto with the help of one Chandran.

(ii) P.W.9, Dr. Jeyaraj, who is the casualty doctor has treated P.W.1 at 3. 50 p.m. At that time, it was stated that P.W.2 was alleged to be assaulted by six persons with Aruval at 3.20 p.m. on 04.02.2005 at Moolakarai bus stop. He has also mentioned the following injury found place in his body.

10x5x5 cm cut injury in occipital region He issued A.R.copy Ex.P8 and sent intimation to the concerned police.

(iii) P.W.15, Mr.Abdul Kaboor, Sub Inspector of Police, Keeraithurai Police Station, on 05.02.2005, at 00.15 hours, received the intimation from the Government Rajaji Hospital and he gone to the hospital. Since P.W.1 was unconscious, he recorded the statement of P.W.1 and reduced the same in writing and the complaint is Ex.P1. Based on the complaint, he registered a case in crime No. 98 of 2005 for the offence under Sections 147, 148, 341, 307 and 506(ii) of I.P.C. and prepared Ex.P.15, printed F.I.R. P.W.15, He put up the file before the Inspector of Police for investigation.

(iv) P.W.16 Kandasoruban, Inspector of Police took up the investigation and on 05.02.2005 at about 01.15, he gone to the place of occurrence and prepared Ex.P.16 observation mahazer and drew Ex.P17 rough sketch in the presence of P.W.6 Sathiyanathan and P.W.7 Raja. He examined the witnesses Suresh, Kanagaraj, Lakshmi, Muniyasamy, Senthooram and Mani and recorded their statements. He gone to Government Rajaji Hospital and examined the victim Ramar and recorded his statement and also examined some other witnesses and recorded their statements. He recovered the bloodstained lungie M.O.3 and bloodstained white shirt shirt M.O.4 in the presence of the witnesses P.W.5 Kandavelu and P.W.4 Muniyasami under Ex.P18, seizure mohazer.

(v) On 09.02.2005, he conducted further investigation and at 15.00 p.m., on information, he arrested the accused A3 and A5 at the Anupanadi Housing Board junction in Chinthamani Road in the presence of Kandavelu P.W.5 and Sakthi and recorded their confession statements. The admitted portion in the confession statement of A3 is Ex.p19. As per Ex.P19, he recovered the sickle M.O.1, under Ex.P20 seizure mahazer. He also sent M.O.1 to the concerned court under Form 95. Athatchi near the eastern side of Anupanadi water tank, which was used for the commission of offence by A3 and sent the same to the Court under Form 95 Ex.P21. Thereafter, he gone for strong escort to Chennai.

(vi) P.W.15 searched the accused A1, A2 and A4 and on information, at 20. 00 hours, he arrested the accused at Kuranguthoppu near Keeraithurai and recorded the confession statement of A1 and sent the accused to the Court for remanding them to judicial custody.

(vii) Thereafter, P.W.16 Inspector of Police gave a requisition Ex.P.13 for sending the material objects for chemical analysis and P.W 10 Mahalakshmi received the requisition Ex.P9 as and sent the same for chemical examination under Ex.P 14 and received the chemical reports Ex.P11 and 12 and Serological report Ex.P10. Thereafter, P.W.16 examined the doctor, who treated P.W.2 and obtained wound certificate Ex.P8. After completion of due investigation, he filed the charge sheet against the accused under Sections 147, 148, 341, 342, 324, 326, 307 and 506(ii) read with 149 of I.P.C.

The learned Judge after following the procedure, framed necessary charges against the accused. Since the accused pleaded not guilty, the Court examined P.W.1 to P.W.16 and marked Exs.P.1 to P.21 and M.O.1 to M.O.4. Accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied the same and stated that a false case has been foisted against them.

On considering the oral and documentary evidence, the learned Sessions Judged convicted the accused and sentenced him as stated above.

Challenging the conviction and sentence passed by trial Court, Mr.D.Sasikumar, learned counsel for the appellants 1 to 4 would submit that the trial Court has not properly framed the sixth charge, since A3 was charged under Section 307 of I.P.C., whereas the charge under Section 307 read with 149 of I.P.C. has been framed against only four persons for formed an unlawful assembly and the charge had to be framed against five persons and hence, the conviction against A1, A2, A4 and A5 under Section 307 read with 149 of I.P.C. illegal and prayed for acquittal.

The learned counsel for the appellants would submit that the alleged occurrence is said to have been taken place on 04.02.2005 at 3.15 p.m and the complaint has been registered on 05.02.2005 at 00.40 a.m and hence, there is a delay in preferring the complaint. He would further submit that even though the place of occurrence is a public place and the occurrence had been taken place at 3.15 p.m. and independent witnesses were available, no independent witnesses were examined.

He would further submit that the evidence of P.W.1, who is the father of victim P.W.2 is not reliable and there is enmity between P.W.2 and A1. P.W.2 is facing criminal case in C.C.No. 763 of 2004, which is pending and the same has been proved by way of examining P.W.12 and hence, because of the said previous enmity, a false case has been foisted against these appellants.

Added further, He would submit that the trial Judge has not given a specific finding for common intention to execute an unlawful and illegal act. To substantiate their argument, they relied on a decision of the Apex Court in Shaji and Others Vs. State of Kerala, and also submitted that ingredients of Section 307 of I.P.C. has not been made out against A3 and there are contradictions between the evidence of P.W.9, Dr.Jeyaraj, who treated P.W.1 at an earlier stage and P.W.13 Radiologist, who has categorically stated that P.W.12 has not sustained any fracture, whereas, P.W.9 has stated that P.W.2 sustained fracture in occipital region and he has given wound certificate stating that the same is grievous in nature and that factum has not been considered by the trial Court.

The learned counsel for the appellants would further submit that the recovery has not been proved by the prosecution and no bloodstain has been found place in M.Os.1 and 2 and the ingredients of Section 506(ii) of I.P.C. has also not been proved by the prosecution beyond reasonable doubt and hence, they prayed for acquittal of the appellants.

Mr.G.R.Swaminathan, learned counsel appearing for the 5th appellant would submit that he is adopting the argument of the learned counsel appearing for the appellants 1 to 4. He further added that A5 is none other than the brother-in-law of A1 to A4 and because of the previous enmity, all the family members of A1 has been roped. Sine A5 is the brother-in-law of A1 and he is innocent and that factum was not considered by the trial Court.

He would further submit that the non examination of independent witnesses is fatal to the case of prosecution and the non examination of Chandran, who helped P.W.1 to transport P.W.2 to the hospital and the Auto driver is also fatal to the case of prosecution and that fact has also not been considered by the trial Court and therefore, he prayed for giving the benefit of doubt in favour of A5 and prayed for acquittal.

Resisting the same, Mrs.S.Prabha, the learned Government Advocate (Crl. Side) assisted by Mr.R.Venkateswaran, learned counsel for the de facto complainant would submit that the non examination of the independent witnesses is not a fatal to the case of prosecution. To substantiate her argument, she relied on a decision in Ashok Kumar Chaudhary and Others Vs. State of Bihar, . She would further submit that the trial Court has correct considered the common object that all the 7 persons have way laid P.W.2 and except A3, other accused facilitate A3 to commit the offence and convicted A3 for the offence under Section 307 of I.P.C. and convicted A1, A2, A4 and A5 for the offence under Section 307 read with 149 of I.P.C.

She would further rely on a decision in State of M.P. Vs. Kashiram and Others, and submit that there is no necessary that the injury sustained by the victim is a fatal in nature. She would further submit that when P.W. 2 was admitted in hospital, he has stated that he was assaulted by 6 persons with sickle and knife and that factum has been rightly considered by the trial Court.

She would further state that P.W.5 Kandavel is a chance witness and even though, he is the relative of P.W.2, his evidence cannot be eschewed and to substantiate the same, she relied on the unreported decision of the Supreme Court in Mano Dutt and Another Vs State of Uttar Pradesh and prayed for confirming the conviction and sentence and dismissal of the appeal.

I have considered the rival submissions made by both sides and the materials available on record.

The admitted facts are that A1 to A4 are own brothers and A5 is the brother-in-law of A1 to A4. P.W.1 is a father of P.W.2, who is the victim/injured.W.3 is another son of P.W.1. P.W.4 is the Sambandhi of P.W.2. P.W.5 Kandavel is alleged to be the attestor and he is also the son-in-law of P.W.1. Even though P.Ws.3 to 5 are the relatives of P.W.2, they are not eye witnesses. The only eye witnesses examined before the trial Court are P.W.1 and the injured P.W.2.

The point to be decided by this Court as to whether P.W.1 was an eye witness and his evidence is reliable?

The learned counsel for the appellants would submit that P.W.1 was not an eye witness. He has implicated at a later point of time. He has not taken his son to the hospital and he has not prevented the occurrence. If really, he was an eye witness, he might prevent the incident and that factum was not considered by the trial Court. He has also taken me through the deposition of P.W.1 and culled out some portion and submits that even though both P.W.1 and 2 are working as Tri-cycle riders, they go to their working place independently and returned. But, according to P.W.1, on the date of occurrence, both P.W.1 and 2 were returning to their house for taking lunch. In such circumstances, this Court has to scrutinise the evidence of P.W.1 and decide as to whether P.W.1 was an eye witness.

A perusal of the evidence of both chief and cross examination of P.W.1 would show that his evidence is not reliable for the reason that he has stated in his evidence that he has taken his son to the hospital with the help of one Chandran by Auto, whereas, neither the said Chandran nor Auto driver has been examined. Even in his evidence, he has stated that his son has sustained bleeding injury and his clothes also sustained bloodstained, neither the bloodstained clothes of P.W.1 has been recovered. During the investigation only, in the presence of P.W.4 Muniyasamy and another witnesses, M.Os.3 and 4 were seized, which contained blood Group ''B'' belongs to P.W.2. Furthermore, A.R. Copy shows that P.W.2 was brought to the hospital at 3.50 p.m. only by P.W.5 Kandavel, who is the brother-in-law of P.W.1.

As per the evidence of P.W.12, Palanichamy, Sub Inspector of Police, on the basis of the complaint given by A1, he registered a case against P.W.2 in crime No. 220 of 2004 for the offence under Section 244, 341, 324, 506(ii) of I.P.C. and after due investigation, charge sheet has been filed, which was taken as file in C.C.No. 763 of 2004, which is pending before the learned Judicial Magistrate No. IV, Madurai, which shows that there is enmity between both the family members regarding money transaction, even though they are distant relatives. In such circumstances, I am of the view that the evidence of P.W.1 is not cogent and trustworthy and it is not reliable and the same is discarded.

Now, this Court has to decide as to whether the evidence of P.W.2 is reliable? P.W.2 is an injured eye witness. It is true that there is enmity between both the family members of P.W.2 and A1. The alleged occurrence is said to have taken place on 04.02.2005 at 3.15 hours and P.W.2 was admitted in the hospital by P.W.5 Kandavel. At that time, it was specifically mentioned that P.W.2 was assaulted by six known persons with sickle and knife. In the A.R.Copy issued by the doctor, who treated P.W.2, it was specifically mentioned that he was assaulted by six known persons by sickle at 3.20 p.m. On 04.02.2005 at Moolakarai Bus stop. In the A.R. Copy, the doctor has not stated as to whether P.W.2 was conscious at the time of admission, whereas, he has mentioned that pulse rate is 78 and B.P is 110/70 and 10x5x5 cm cut injury in the occipital region.

Now, this Court has to decide as to whether as per the version of the defence counsel, the relatives of A1 have been falsely roped into the case as if P.W.2 has sustained injury. It is true that P.w.9 Dr.Jeyaraj, in his cross examination, has fairly conceded that there is a possible to sustain the injury, if a sharp edged object falls on his head.

A perusal of P.W.2''s evidence would show that there is enmity between both the family members of P.W.2 and A1. In an earlier version, he stated that six persons assaulted him. But, in his evidence, he has stated that he was assaulted by A3 with M.O.1, which is not contained any bloodstained. Furthermore, to prove the confession and recovery, P.W.5 Kandavel has been examined. Even though, he has cited as eye witness, he turned hostile and his signature alone has been marked as Ex.P4 and P5. Therefore, the confession and recovery has not been proved by the prosecution beyond reasonable doubt. Considering the chief and cross examination and also the evidence of doctor, who has falsified the evidence of P.W.2, I am of the view that the evidence of P.W.2 is not natural, cogent and trustworthy and hence, the same is discarded as not reliable.

It is true, injury sustained by P.W.2 is simple in nature. But, as per Section 307 of I.P.C. is concerned, nature of injury is immaterial. In the decision in State of M.P. Vs. Kashiram and Others, , it was held that only the intention of the parties is sufficient and the nature of injury is not a material. It is appropriate to extract paragraph No. 10 of the said decision:

It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 I.P.C. cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

The learned counsel for the Appellants would submit that injury has been caused by other juvenile accused and hence, it is appropriate to consider P.W.2''s oral evidence. P.W.2, in his Chief examination, has stated that A3 has assaulted P.W.1 on his head and sustained head injury. He further stated that the first accused has assaulted him on his left thumb finger. Admittedly, as per A.R.Copy, except the head injury, he has not sustained any injury, which shows that P.W.2 has common intention to rope the family members of A1. Therefore, the evidence of P.W.1 is exaggeration. As already stated, except P.W.2''s oral evidence, there is no other corroborate evidence to show that injury has been caused only by A3. According to prosecution, A3 alone is armed with M.O.1 and caused injury. In such circumstances, I am of the view that there is no clenching evidence to show that M.O.1 has caused such an injury. M.O.1 is a rustic sickle and it is not contained any bloodstained. As already stated, confession and recovery of M.O.1 has not been proved by the prosecution beyond reasonable doubt. In such circumstances, I am of the view that the prosecution has failed to prove that A3 has caused injury mentioned in Ex.P8 beyond reasonable doubt.

Furthermore, even though, P.W.2 in his evidence in an earlier point of time has deposed that six persons has assaulted him with sickle and knife. But, he has sustained single injury. It is true that as per the medical jurisprudence, names of the persons, who assaulted need not be mentioned in A.R.Copy. However, except the single injury, he has not sustained any other injuries. Even though, he has given an improved statement during his chief examination, in his cross examination, he conceded that there was an enmity between both the families and he denied the suggestion that since he has received money from Rajendran and with a an intention not to repay the amount, he has given such evidence. Admittedly, P.W.2 has so many enemies and he has involved so many cases. In such circumstances, I am of the view that the prosecution has miserably failed to prove that A3 has caused injury to P.W.1 and hence, that charge framed against for the offence under Section 307 of I.P.C. has not been proved beyond reasonable doubt. Once the offence under Section 307 of I.P.C. has not been proved, the other persons, who are charged under Section 149 of I.P.C. along with 307 of I.P.C., shall also be acquitted from the said charge. Admittedly, other two juvenile accused have been tried separately and C.C.No. 763 of 2004 is pending. Since this Court found that the offence under Section 307 of I.P.C has not been proved against A3, the charge for the offence under Section 307 read with 149 of I.P.C. against A1, A2, A4 and A5 fails.

Now this Court has to decide as to whether the conviction under Section 147, 341 and 506(ii) has been proved by the prosecution beyond reasonable doubt?. As already stated, P.W.2 in his evidence has exaggerated that A1 has caused injury on his left thumb finger, whereas, no injury was found on the same. No charge has been framed against A1 for offence under Section 148 of I.P.C. that he is also a member of unlawful assembly armed with deadly weapon. In such circumstances, I am of the view that there is no evidence to prove that A1 to A5 have formed unlawful assembly for causing death to P.W.2. Regarding 341 of I.P.C. is concerned, once there is no evidence for forming of an unlawful assembly, there would be no evidence for wrongful restrain and criminal intimidation and hence, I am of the view that the accused are not guilty under Section 341 and 506(ii) of I.P.C.

For the above stated reasons, I am of the view that the prosecution has miserably failed to prove that the appellants are guilty for the charges framed against them and the above factum has not been considered by the Trial Court. Therefore, the appellants are entitled to the benefit of doubt and the conviction and sentence passed against them are liable to be set aside.

In fine, The Criminal Appeal is allowed.

Judgment of conviction and sentence passed in S.C.No. 449 of 2005 dated 20. 06.2006 by the Additional District and Sessions Judge, F.T.C.No. III, Madurai is set aside.

The appellants/accused acquitted from all the charges framed against them.

The fine amount already paid by the appellant/accused is ordered to be refunded.

The bail bonds executed by appellants, if any, shall stand cancelled.