Ravichandran and Others vs The State

S. Nagamuthu, J—The appellants are the accused 1 to 4 and 6 in S.C. No. 257 of 2003, on the file of the learned Additional Sessions Judge [Fast Track Court No. 1], Tiruchirapalli. Altogether there were 11 accused in this case. By Judgment dated 27.04.2007, the trial Court has acquitted the rest of the accused. So far as the appellants are concerned, they have been convicted and sentenced as detailed below:

Challenging the above conviction and sentence, the appellants are before this Court with this Criminal Appeal.

The 5th appellant/6th accused is no more and thus, this appeal stands abated as against him.

The case of the prosecution in brief is as follows:

"i) All the 11 accused belong to a political party. The prosecution party also belong to the same political party. On 05.09.2002, election to the Branch Secretary of the said political party was in progress. At that time, the prosecution party and the accused party acted against each other in contesting in the said election. Due to the said motive, it is alleged that all the accused assembled at the place of occurrence in unlawful manner with the object of committing murder of the prosecution party. At that time, the accused 1, 2, 3, 5 and 11 were not armed with any weapon. Whereas the other accused were armed with weapons like aruval, knife, steel pipe and soda bottle. It is further alleged that the fifth accused, attacked one Selvendran with stick and caused simple hurt. The accused Nos. 7, 9, 10 and 11 abused one Kaliyaperumal in filthy language. The 8th accused attacked one Tamil Selvan with a soda bottle and caused simple injury. The first accused attacked one Varadharajan with aruval on the back on his head and caused injury. Similarly, the first accused attacked one Selvendran, on his right fore-arm with aruval and caused injury. In the transaction, the first accused attacked one Tamil Selvan on his left elbow with aruval and caused simple hurt. It is alleged that the second accused attacked one Varadharajan with aruval on the left side of the lower jaw and caused injury. He also attacked one Arumugam with aruval on the back of his head and caused simple hurt. It is further alleged that the second accused attacked one Suresh Kumar with aruval on the right side of his head and caused simple hurt. In the same occurrence, it is alleged that the second accused attacked Arumugam with aruval on his right side and caused grievous hurt. He also attacked one Sukumar with aruval on his right elbow. Accused Nos. 9, 10 and 11 pelted stones and caused extensive damage to the properties. Accused 6, 7 and 8 caused damage to the TVS Suzuki belonging to Kaliyaperumal. The fourth accused wrongfully restrained one Varadharajan and similarly accused Nos. 7 and 8 wrongfully restrained one Arumugam. In the same transaction, the first accused with the intention to cause death of Varadharajan attacked him on the back of his head and other parts of the body. The second accused attacked one Varadharajan with the intention to cause his death.

ii) It is alleged that after the occurrence, all the accused fled away from the scene of occurrence. All the injured were taken to the hospital. On intimation from the hospital, P.W. 16, the then Sub-Inspector of Police attached to Jeeyapuram Police Station went to the hospital and recorded the statement of P.W. 1 at 3.50 p.m. On returning to the Police Station, on the same day, namely 05.09.2002, at 5.00 p.m, he registered a case in Cr. No. 327 of 2002 under Sections 147, 148, 341, 336, 324, 427, 294(b) r/w 307 I.P.C. Ex. P.1 is the complaint and Ex. P.12 is the First Information Report. He forwarded the same to the Court and handed over the case diary to the Inspector of Police for investigation.

iii) P.W. 17, the then Inspector of Police of Jeeyapuram Police Station took up the case for investigation, examination of the injured witnesses, prepared observation mahazar and rough sketch showing the place of occurrence and collected medical records.

iv) P.Ws. 11 and 12, doctors, examined the injured, treated them and gave opinion.

v) P.W. 17 collected medical records, examined the doctor and on completing the investigation laid charge sheet against all the accused."

Based on the above materials, the trial Court framed charges as detailed above in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they denied the same. In order to prove the case of the prosecution, the prosecution examined as many as 17 witnesses and 14 documents were exhibited, besides nine Material Objects.

Of the said 17 witnesses, P.Ws. 1 to 5 are the injured witnesses, who have spoken about the entire occurrence and the attacks made by these appellants on them. P.W. 6 has spoken about the preparation of observation mahazar and rough sketch by the Inspector of Police. P.W. 7 is yet another eye witness, who happens to be the father of P.W. 4, has also spoken about the occurrence. P.Ws. 8 and 9 have turned hostile and they have not supported the case of the prosecution in any manner. P.W. 10 has spoken about the fact that he took the injured to the hospital. P.W. 11 has spoken about the treatment given to all the five accused. P.W. 11, on 05.09.2002 at 2.35 p.m, examined P.W. 2-Mr. Selvendran and found the following injuries:

"1. A cut injury measuring 5 x 4 x muscle depth on the right elbow.

2) A contusion on the left index finger".

These two injuries, according to him, were simple in nature.

On the same day, at 2.45 p.m, he examined P.W. 1, Mr. Arumugam and found the following injuries.

"1. A lacerated wound measuring 7 x 5 cm x bone depth on the back of the head.

Lacerated wound measuring 3 x 1 cm x bone depth on the forehead".

According to him, injury No. 1 is grievous and injury No. 2 is simple in nature.

On the same day, at 2.45 p.m, he examined P.W. 4, Varadharajan and found the following injuries:

"1. A lacerated wound measuring 1 x 1/2 cm x muscle depth, on the left side of the head.

A lacerated wound 10 x 1/2 cm x muscle depth on the lower jaw."

According to him, both the injuries were simple in nature.

On the same day, at 3.05 p.m, he examined P.W. 3, Mr. Tamil Selvan and found the following injuries:

"1) A lacerated injury measuring 7 x 1 cm x bone depth on the back of the head near left ear.

2) A lacerated injury measuring 7 x 1/4 cm x skin depth on the left shoulder".

According to him, both the injuries were simple in nature.

On the same day, at 3.10 p.m, he examined P.W. 5-Mr. Suresh Kumar and found the following injuries:

"1. A lacerated injury measuring 7 x 1/2 cm x muscle depth on the right side of the forehead.

A lacerated injury measuring 1/2 x 1 cm x muscle depth on the right elbow

An abrasion measuring 9 x 1/4 cm x skin depth on the right fore arm."

According to him, both the injuries are simple in nature.

P.W. 12 has spoken about the X-Ray taken on P.Ws. 1 and 5 and has given opinion about the same.

P.W. 13 is yet another eye witness, who has also spoken about the occurrence. P.W. 14 has turned hostile and he has not supported the case of the prosecution in any manner. P.W. 15 has spoken about the preparation of observation mahazar and seizure mahazar. P.W. 16 has spoken about the registration of the case. P.W. 17 has spoken about the investigation done by him.

When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witnesses nor to exhibit any documents.

Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this judgment and punished them accordingly. That is how, the appellants are now before this Court with this Criminal Appeal.

I have heard the learned counsel appearing for the appellants, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.

The first and foremost contention of the learned counsel for the appellants is that the prosecution has not come forward with true version and clean hands and in respect of the very same occurrence, yet another case has been registered in Cr. No. 328 of 2002, in which the accused Nos. 1 & 2 have also sustained injuries, for which also, there are medical records.

The learned counsel appearing for the appellants would further contend that P.W. 16, the then Sub-Inspector of Police, Jeeyapuram Police Station, has categorically admitted that on intimation from the hospital, he went to the hospital and found that A-1 & A-2 were taking treatment. He recorded the statements of A-1 & A-2 and on returning to the Police Station, he registered a case in Cr. No. 328 of 2002. The learned counsel would further contend that he took up the case in Cr. No. 328 of 2002 also for investigation. But, he referred the same as mistake of fact. The learned counsel would further contend that the details of the investigation have not been spoken to by him and the materials collected during the investigation have not been placed before the Court for appreciation. The learned counsel would further submit that the aggressors were the prosecution party.

Further, according to the learned counsel appearing for the appellants, the Inspector of Police has suppressed the entire version of the accused and the materials collected during the prosecution. Thus, according to him, the prosecution case is liable to be rejected.

The learned Additional Public Prosecutor, however, would vehemently oppose this appeal. According to him, the accused party were the aggressors. It is true that the counter case in Cr. No. 328 of 2002 was registered by P.W. 16 and the same was investigated by P.W. 17. He further submitted that during investigation, P.W. 17 found that the said case in Cr. No. 328 of 2002 was false and therefore, it was referred as "mistake on fact" and a negative final report was filed by the Jurisdictional Magistrate and the same has been accepted to by the Magistrate. According to learned Additional Public Prosecutor, there is no suppression of the version or the materials collected during the investigation in Cr. No. 328 of 2002.

The learned counsel appearing for the appellants would further took me through the evidences of witnesses. According to him, there are lot of inconsistencies, which would imply the incredibility and further, medical witness also does not corroborate the eye witnesses.

I have also considered the above submissions.

Let me first consider the first and the foremost contention of the learned counsel appearing for the appellants. According to the learned counsel, the prosecution has suppressed the case of the accused. Admittedly, in this case, there was a clash between two groups. In the same transaction, both the parties sustained injuries. In respect of the injuries sustained by the prosecution party, the present case in Cr. No. 327 of 2002 was registered and in respect of the injuries sustained by the accused party/A-1 & A-2, a case in Cr. No. 328 of 2002 was registered. As rightly pointed out by the learned counsel appearing for the appellants, P.W. 16 has rightly handed over the case to P.W. 17. Though there were two versions, which were contradictory in nature, making allegations against each other, it is the bounden duty of the Inspector of Police to make a thorough investigation and to find out the truth and prosecute the real culprits, namely the aggressors. Though the case in Cr. No. 328 of 2002 was handed over to P.W. 17 for further investigation, unfortunately, the materials collected during the investigation in Cr. No. 328 of 2002 have not been produced before the Court. It is absolutely necessary, to afford fair trial, that such materials should also have been produced before the Court and proved in evidence. Whether the allegations in the case in Cr. No. 327 of 2002 are true or the allegations in the case in Cr. No. 328 of 2002 are true, is a matter for appreciation, based on the evidence to be let in. Therefore, it is always necessary for the prosecution to place all the materials collected during the investigation of the counter case also. Since in this case, the materials collected during the investigation of the counter case have been suppressed, it goes without saying that the prosecution has not come forward with clean hands. As per Section 114 of the Indian Evidence Act, it is to be presumed that these materials collected would have gone in favour of the accused and that is the reason why they have been suppressed. The wound certificates of A-1 & A-2 have not been marked and the doctors, who treated the accused also have not been examined. It is not known as to what was the nature of the injuries sustained by A-1 & A-2. For all these reasons, I have to concur with the arguments advanced by the learned counsel appearing for the appellants that the version projected by the prosecution cannot be taken as the gospel truth. The prosecution had not been fair enough in this case. Therefore, I have to give the benefit of doubt arising out of the same to the accused.

So far as credibility of the witnesses is concerned, since no witness has explained the injury sustained by the accused, it is difficult to attach any credibility to the evidence of the eye witnesses. In this case, no independent witness has been examined. Apart from that, as pointed out by the learned counsel appearing for the appellants, there are material contradictions between the eye witness account and medical evidence. For all the above reasons, I have to hold that the prosecution has not come forward with true version of the occurrence and thus, the prosecution has failed to prove the case beyond reasonable doubts. Hence, I do not have any reason to sustain the conviction and sentence imposed on the appellants/accused.

In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants/accused are set aside and the appellants 1 to 4 are acquitted from the charges. Fine amount, if any, paid by the appellants shall be refunded to them.