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401 paragraphs · 7,903 wordsS. Nagamuthu, J.—The Appellants in Crl.A. No. 966 of 2006 are the accused 1 and 2 and the Appellants in Crl.A. No. 948 are the
accused 3 to 7 in S.C. No. 72 of 2005 on the file of the learned I Additional Sessions Judge, Erode. Totally, there were 9 accused. The accused 8
and 9 have been acquitted by the trial Court. The Appellants/A.1 to 7 have been convicted and sentenced as detailed below:
Accused Offence Sentence Imposed
A.1 Under Section 148 I.P.C., 1 year rigorous imprisonment
Under Section 324 I.P.C., 1 year rigorous imprisonment
and to pay a fine of Rs.1,000/-
in default to undergo 3 months
rigorous imprisonment.
A.2 Under Section 148 I.P.C., 1 year rigorous imprisonment
Under Section 304 (Part II)
10 years rigorous imprisonment
I.P.C.,
A.3 Under Section 148 I.P.C., 1 year rigorous imprisonment
Under Section 304 (Part II)
10 years rigorous imprisonment
I.P.C.,
A.4 Under Section 147 I.P.C., 6 months rigorous imprisonment
Under Section 325 I.P.C., 2 years rigorous imprisonment
and to pay a fine of Rs.1,000/-
in default to undergo 3 months
rigorous imprisonment
A.5 Under Section 148 I.P.C., 1 year rigorous imprisonment
Under Section 324 I.P.C., 1 year rigorous imprisonment
and to pay a fine of Rs.1,000/-
in default to undergo 3 months
rigorous imprisonment
A.6 Under Section 148 I.P.C., 1 year rigorous imprisonment
Under Section 324 I.P.C., 1 year rigorous imprisonment
and to pay a fine of Rs.1,000/-
in default to undergo 3 months
rigorous imprisonment
A.7 Under Section 148 I.P.C., 1 year rigorous imprisonment
Under Section 325 I.P.C., 2 years rigorous imprisonment
and to pay a fine of Rs.1,000/-
in default to undergo 3 months
rigorous imprisonment
Further, the trial Court acquitted the accused from some of the charges as stated below:
Accused Offence
A.1 Under Sections 342 r/w 149, 302 r/w 149 and 307 r/w
149 I.P.C., (2 counts)
A.2 342 r/w 149, 307 r/w 149 I.P.C., (3 counts)
A.3 342 r/w 149 and 307 r/w 149 I.P.C., (3 counts)
A.4 342 r/w 149, 302 r/w 149 and 307 r/w 149 I.P.C., (2
counts
A.5 342 r/w 149 302 r/w 149 and 307 r/w 149, 302 r/w 149
and 307 r/w 149 and 307 r/w 149 I.P.C., (2 counts)
A.8 147, 342, 302 r/w 149 and 307 r/w 149 I.P.C., (3
counts)
A.9 147, 342, 302 r/w 149 and 307 r/w 149 I.P.C., (3
counts)
Challenging the said conviction and sentence, the Appellants are before this Court with these appeals.
The case of the prosecution in brief is as follows:
The deceased in this case was one Mr. Palanisamy. P.W.1 is his younger brother. P.W.2 is the wife of the deceased and P.W.3 is the wife of
P.W.1. All these witnesses were residing at Kambukaranthottam in Vembathi Village, Erode District. P.W.1 and the deceased, being the brothers,
had jointly purchased 10 acres of land from one Mr. S.M. Chenniappan few years before the occurrence. The third accused Mr. Palanisamy had
his land on the East of the said land. All these accused are also closely related to each other. They also hail from the same village. In respect of the
boundary lying between the above said land belonging to P.W.1 and the deceased and that of the third accused, there were frequent quarrels
between the two groups. On 12.09.2004, P.W.1, the deceased, the wife of the deceased Mrs. Palaniammal, P.W.2, P.W.3 and one Tamilarasi
were engaged in removing weeds in the above said land. It was 11.30 a.m. At that time, the third accused had engaged a bulldozer to level his
land. P.W.7, Mr. Kumarasamy was the Driver of the bulldozer. While so levelling, the sand was pushed into the land belonging to P.W.1 and the
deceased thereby encroaching upon their land. This was questioned by the deceased and P.W.1. A.3, Palanisamy retorted saying that they would
do so only. Suddenly, all the accused came to the place of occurrence, all armed with weapons. A.1 was armed with an Iron Rod; A.2 was armed
with a ?Kutheeti? (spear); A.3 was armed with Aruval; A.4 was armed with Stick; A.5 was armed with Spade; A.6 was armed with Aruval; A.7
was armed with Spade handle and A.8 and A.9 were not armed with any weapon. On emerging at the place of occurrence, suddenly, they started
mounting attack on the prosecution party. A.8 and 9 (since acquitted), held P.W.1 and restrained him from escaping. A.1 attacked Rajammal
(died before trial) with Iron Rod on her head causing a single injury. For this overt act, he stood charged for offence u/s 307 I.P.C.A.2 attacked
the deceased on his head with spear causing a long injury. A.3 attacked the deceased with Aruval on his head causing a long injury. A.4 attacked
P.W.2 with stick on the right fore hand of P.W.2. A.5 attacked P.W.2 with spade on her head. A.6 attacked P.W.3 with Aruval on her head. A.7
attacked P.W.3 with Spade handle on her right hand. In the said occurrence, as stated above, P.Ws.2 and 3, the deceased Palanisamy and Mrs.
Rajammal sustained injuries. The occurrence was witnessed by P.W.7, the Driver of the bulldozer. They raised alarm which attracted P.W.4
towards the place of occurrence.
On reaching the place of occurrence, P.W.4 found the injured lying on the ground with extensive bleeding injuries. Immediately, P.W.4 along
with one Gurusamy and Chinnappan made arrangement to rush the injured to the Lotus Hospital at Erode.
P.W.6 Dr. John Gurupatham, examined all the injured on 12.4.2009 at about 2.40 p.m. So far as the deceased is concerned, he found as many
as 9 external injuries. Ex.P.7 is the Accident Register copy relating to the deceased. The following are the injuries (as described in Ex.P.7):
A lacerated injury with exposing bone fronto temporo parital region with oozing blood;
A lacerated injury measuring 10x4 cm on the right parital region with oozing blood;
Swelling and ecchymosis of both eyes noticed;
Swelling on the left hand dorsum;
A small � cm length laceration on the left knee;
A small � cm laceration on the left leg toe;
Oozing of blood on the left ear;
Bleeding was found through nose and mouth; and
A small contusion on the right upper leg.
Scan examination was conducted on the head of the deceased which revealed as follows:
Diffuse Subarachnoid Haemorrhage.
RT.Fronto Parietal ICH.
Diffuse Cerebral Edema.
Pneumocephalus.
Depressed fracture in the left fronto parietal region.
While on treatment, he died on 14.09.2004 at 3.30 p.m.
P.W.6, on the same day, examined Rajammal (since deceased). He noticed a lacerated wound measuring 5x2x2 cms on the left parietal region
and the underlying bone was found exposed. There was bleeding also on the said injury. Ex.P.10 is the Accident Register for Mrs. Rajammal. On
the same day, at 2.40 p.m., he examined P.W.2 Mrs. Eswari. He found as many as 8 injuries on her which are as follows:
1 A lacerated wound measuring 2x2 cms on the right parietal area;
2 A lacerated injury measuring 4 cm and 2 cm on the frontal area;
A lacerated injury measuring � cm x � cm near the root of the nose;
Two contusions measuring � x � x2x2 cms found on the right cheek;
A contusion measuring 4x2 cms on the right shoulder;
A small contusion on the middle of left thigh;
A contusion measuring 3x3 cms on the right fore hand; and
A contusion measuring 2x2 cms on the left fore hand.
Exhibit P.12 is the Accident Register issued by him. X-ray taken on the right hand disclosed fracture of the radius. Ex.P.13 is the Wound
Certificate. The injuries 1, 2 and 7 are grievous hurts. According to his opinion, all these injuries would have been caused by attack with spade
handle and stick.
On the same day, he examined P.W.3 Suseela. He noticed the following 5 injuries:
A lacerated injury measuring 5x2x2cms on the occipital region of the head;
An abrasion measuring 2x2 cms below the said injury;
An abrasion measuring 1x1 cm on the right fore hand;
She complained of pain in her dorsum of the right hand and she was not able to move her fingers; and
She complained of pain in her dorsum of the right hand and she was not able to move her fingers.
Exhibit P.14 is the Accident Register. X-ray taken revealed that the injuries 2 and 3 are grievous in nature as there were fractures. He issued
Wound Certificate under Ex.P.15. According to him, these injuries would have been caused by weapons like Aruval and Spade handle.
While they were in the said hospital, P.W.14, the then Sub Inspector of Police attached to Apakudal Police Station received intimation from the
hospital about the occurrence and admission of the injured in the hospital at 4.00 p.m.. On the same day, he proceeded to the Lotus Hospital and
found that none of the injured was in a position to speak. Therefore, he recorded the statement of P.W.1 under Ex.P.1. On returning to the police
station, at 6.00 p.m., he registered a case in Crime No. 249 of 2004 under Sections 147, 148, 341, 324, 325, 326 and 307 I.P.C. In the F.I.R,
P.W.1 had mentioned about the participation of all the 9 accused and their individual overt acts. P.W.14 forwarded the F.I.R and the complaint to
the Court immediately and the same was received by the learned Judicial Magistrate at 9.15 p.m., on 12.09.2004. Admittedly, the distance
between the police station and the house of the learned Judicial Magistrate is 8 k.Ms. Thereafter, P.W.14 forwarded the case diary to the
Inspector of Police for investigation.
P.W.15, who was the then Inspector of Police-in-charge of Apakudal Police Station, took up the case for investigation. At 7.00 p.m., on the
same day, he proceeded to the place of occurrence and examined one Tamilarasu. Since it was so dark, he could not prepare Observation
Mahazar. Thereafter, he returned to the Lotus Hospital where he examined P.W.4 and Mr. Chinnappan who had brought all the injured to the
hospital. On 13.09.2004, at 6.30 a.m., again P.W.15 went to the place of occurrence and prepared an Observation Mahazar in respect of the
place of occurrence in the presence of P.W.8 and another witness. At that time, however, he did not recover the blood stained earth from the
place of occurrence. He recovered the material objects (the weapons used in the occurrence) M.Os. 3 to 7 from the place of occurrence. Some of
the weapons were stained with blood. Then, he returned to the Lotus Hospital where he examined P.Ws.1 to 3 and recorded their statements.
Then, on secret information, he went to Thalavaipettai Bus stop and arrested A.2,3,5 in the presence of P.W.7 and another witness. On such
arrest, the third accused gave a voluntary confession in which, he had disclosed that ''Kutheeti'' and Aruval had been hidden in a thorn bush. The
said statement was recorded. Based on the said confession, the accused took the police and the witnesses to his land and produced the weapons
(Kutheeti and Aruval) M.Os.1 and 2 from there. They were recovered under the Mahazar in the presence of witnesses.
While the investigation was in progress, on 14.09.2004, at 3.30 p.m., P.W.15, received intimation from the Lotus Hospital about the death of
the deceased. Therefore, he altered the case into one under Sections 147, 148, 341, 324, 325, 326, 307 and 302 of I.P.C. He forwarded a
report to the Court forthwith under Exhibit P.29.
P.W.15 thereafter, held inquest on the body of the deceased and then forwarded the body for postmortem to the Government Hospital at
Erode. P.W.5 conducted autopsy on the body of the deceased and he noticed injuries which are as follows:
External Injuries:
A sutured wound 10 cm length present in the left side of the head extending from left frontal to parietal bones;
A sutured wound of 6 cm in length present in the mid parietal region extending to the occipital region; 3. Bleeding left ear with blood clot
present; and 4. A sutured abrasion in the left shoulder.
Internal injuries:
On opening the scalp: Extensive blood clots present over the left parietal, 12 frontal and temporal region;
Multiple irregular fracture of left side skull bone of frontal, parietal and temporal and occipital bones with displacement;
There was loss of bone in the left frontal bone. Sutured material was seen in that area;
There was fracture in the right side of the skull bone extending from parietal to temporal bone;
On removing the fractured bones from the left side of the skull suturing was done in the dura matter of brain left side;
On opening the dura extending blood clots present over the both side of the brain; and
Fracture basal on both side present.
On opening the Thorax: About 300 ml of blood clots present in the left side thoracic cavity. Fracture of 2,3, 4th ribs present in left side.
According to the Doctor, the death was due to shock and hemorrhage due to the said injuries. The said injuries, according to him, would have
been caused by M.Os.1 and 2. Thereafter, the investigation was handed over to P.W.16. Continuing the investigation, P.W.16 examined P.Ws.10
and 12 and recorded their statements. Then, he arrested A.1,4,6,8 and 9 on 16.09.2004 at 2.30 p.m. They were sent for judicial remand. Then,
he gave a request to the
Court for sending the material objects (M.Os.1 and 2) for chemical examination. M.Os.1 and 2 were sent for chemical examination by the learned
Judicial Magistrate. The reports of Forensic Lab are under Exhibits P.33 and 34. According to the said reports, human blood was found in the
said weapons. Then, on completing the investigation, he laid charge sheet on 21.04.2004 against all the 9 accused under Sections 147, 148, 342,
342 r/w 349, 307, 307 r/w 149, 302, 302 r/w 149 I.P.C.
Based on the above materials, the trial Court framed as many as 12 charges, which are as follows:
Charge Numbers Accused Offence under Sections
Charge No.1 A.4,8 and 9 147 of IPC
Charge No.2 A.1,2,3,5,6 and 7 148 of IPC
Charge No.3 A.8 and 9 342 of IPC
Charge No.4 A1 to 7 342 r/w 149 of IPC
Charge No.5 A.1 307 of IPC
Charge No.6 A.2 to 9 307 r/w 149 of IPC
Charge No.7 A.2 and 3 302 of IPC
Charge No.8 A.1 to 4 and 9 302 r/w 149 of IPC
Charge No.9 A.4 and 5 307 of IPC
Charge No.10 A.1 to 3 and 6 to 9 307 r/w 49 of IPC
Charge No.11 A.6 and 7 307 of IPC
Charge No.12 A.1 to 5, 8 and 9 307 r/w 149 of IPC
Since all the accused denied the charges, the trial Court went ahead with the trial. During the trial, on the side of the prosecution, as many as
16 witnesses were examined and 34 documents were exhibited besides the Material Objects 1 to 9. Since Mrs. Rajammal, one of the injured in
the said occurrence died during the course of trial, she could not be examined. P.Ws.2 and 3 are the injured eye witnesses. P.Ws.1 and 7 are eye
witnesses to the occurrence, but not injured. P.W.4 is the person who took all the injured to the hospital. P.W.6 is the Doctor who treated the
injured at Lotus Hospital, Erode and P.W.5 is the Doctor who conducted Postmortem on the body of the deceased. P.W.8 is the Village
Administrative Officer in whose presence, the Observation Mahazar was prepared and recovery of material objects were made either from the
place of occurrence or on the confession of A.3. P.W.9 has spoken to about the photographs taken by him regarding the place of occurrence.
P.W.13 is the Doctor who treated the injured at Lotus Hospital. The others are police officials.
When the incriminating evidences were put to the accused u/s 313 Code of Criminal Procedure, they denied the same as false. However, they
did not chose to examine any witness on their side nor did they mark any documents. Having considered the above materials, the trial Court
acquitted A.8 and A.9 holding that the prosecution has not proved the case against them beyond reasonable doubt. Relying on the evidences of
P.Ws.1 to 3 and 7 coupled with the medical evidence, the trial Court found A.1 to 7 guilty and accordingly convicted them as 17. I have heard
Mr. N. Manokaran, learned Counsel appearing for A.1 and A.2; Mr. N. Natarajan, learned Senior Counsel appearing for A.3,5 to 7; Mr. A.K.
Kumarasamy, learned Counsel appearing for A.4 and Mr. I. Subramanian, learned Public Prosecutor appearing for the State and also perused the
records carefully.
The foremost contention of the learned Senior Counsel appearing for the Appellants is that the prosecution has not come forward with clean
hands and there are lot of doubts in the case of the prosecution entitling the accused for acquittal. He would submit that though it is stated that there
was profuse bleeding out of the injuries sustained by the injured in this case and though it is stated that the blood had fallen at the place of
occurrence, the same was not recovered from the scene of occurrence. He would further submit that even the blood stained clothes belonging to
the witnesses have not been recovered. This, according to the learned Senior Counsel, is a very serious lapse on the part of the Investigating
Officer which goes Charge Numbers Accused Offence under Sections Charge No. 1 A.4,8 and 9 147 of Indian Penal Code Charge No. 2
A.1,2,3,5,6 and 7 148 of Indian Penal Code Charge No. 3 A.8 and 9 342 of Indian Penal Code Charge No. 4 A1 to 7 342 r/w 149 of Indian
Penal Code Charge No. 5 A.1 307 of Indian Penal Code Charge No. 6 A.2 to 9 307 r/w 149 of Indian Penal Code Charge No. 7 A.2 and 3
302 of Indian Penal Code Charge No. 8 A.1 to 4 and 9 302 r/w 149 of Indian Penal Code Charge No. 9 A.4 and 5 307 of Indian Penal Code
Charge No. 10 A.1 to 3 and 6 to 9 307 r/w 49 of Indian Penal Code Charge No. 11 A.6 and 7 307 of Indian Penal Code Charge No. 12 A.1 to
5, 8 and 9 307 r/w 149 of Indian Penal Code detailed in the first paragraph of this judgment. That is how, the Appellants are before this Court
with this appeal. to the very root of the case of the prosecution. He would also submit that the non-recovery of the blood stained earth from the
place of occurrence would go a long way to show that the very origin of the case is doubtful. He would further submit that the medical evidence in
respect of the injuries sustained by the deceased also does not corroborate the so called eye witness account. For this purpose, the learned Senior
Counsel would take me through the evidence of P.W.6 who would say that the injuries found on the body of the deceased would not have been
caused by M.Os.1 and 2 as it is alleged by the prosecution. Thus, according to the learned Senior Counsel, the medical evidence would
completely falcify the evidences of the eye-witnesses. The learned Senior Counsel would also submit that though it is stated in the recovery
mahazar that many of the weapons seized were stained with blood, only M.Os.1 and 2 were sent for chemical examination and there is No.
explanation offered by the prosecution as to why the rest of the weapons were not sent for chemical examination.
The learned Senior Counsel would nextly point out that the recovery of the Material Objects, namely, M.Os.1 and 2 at the instance of the 3rd
accused on his disclosure statement cannot be true. For this
purpose, the learned Senior Counsel would take me through the evidences of P.W.2, who would say that the Material Objects, namely, M.Os.1
and 2 were thrown at the place of occurrence immediately after the occurrence by the assailants and they were recovered by the police from the
spot. The learned Senior Counsel would further submit that since there are number of accused, number of injured, number of injuries and number
of weapons, there is every possibility of false implication of these accused and the same cannot be ruled out. He would also submit that if an overall
view of the entire materials placed before the Court is made, it would definitely go to show that the prosecution has not come forward with the true
version of the occurrence and therefore, it is not safe to sustain the conviction of these Appellants, solely based on the above partisan evidences of
P.Ws.1 to 3 and 7. Thus, according to the learned Senior Counsel, the prosecution has failed to prove the case beyond reasonable doubts and so,
the accused are entitled for acquittal. The learned Counsel for the other Appellants have adopted the said argument of Mr. N. Natarajan.
But the learned Public Prosecutor appearing for State would stoutly refute all the above grounds raised by the learned Senior Counsel for the
accused/Appellants. According to him, though it is true that there is a lapse on the part of the Investigating Officer as he has failed to recover the
blood stained clothes from the injured witnesses, that by itself cannot be a ground to doubt the case of the prosecution. In respect of non-recovery
of the blood stained earth from the place of occurrence, the learned Public Prosecutor would submit that since it was too late in the night on the
day of occurrence, when P.W.15 visited the place of occurrence, he could not recover the blood stained earth from the place of occurrence. On
the next day, when he went to the place of occurrence at 6.30 a.m. since there was No. blood stains found, he recorded the same. That is the
reason why the blood stained earth could not be recovered. The learned Public Prosecutor would further submit that the non-recovery of the
blood stained earth from the place of occurrence cannot be a ground at all to doubt the case of the prosecution or to reject the case as a whole as
false. He would also submit that in this case the presence of P.Ws.2 and 3 and the injured witnesses in the place of occurrence cannot be doubted.
He would further submit that as per the settled position of law, their evidences should generally be accepted by this Court unless there are certain
material infirmities in their evidences. He would also submit that a close scrutiny of the evidences of the injured eye-witnesses and the evidences of
P.Ws.1 and 7 is made, it would certainly go to show that they have spoken to only the truth and truth alone. The evidences of P.Ws.2 and 3 are
duly corroborated by the evidences of P.Ws.1 and 7, the learned Public Prosecutor contended.
That apart, according to him, the medical evidence also clearly goes to corroborate the eye-witness account, more particularly, the account of
the injured eye witnesses. He would further add that it is not the case where there is a delay in preferring the complaint. The complaint was
preferred within a very short time after the admission of the injured in the hospital and the complaint and the First Information Report had reached
the court without any delay. He would further state that they reached the court at 9.15 p.m. on 12.9.2004. This, according to the learned Public
Prosecutor, rules out any possibility of false implication. The learned Public Prosecutor would further submit that it is not a case where the village
itself is a faction ridden one so as to doubt that there would have been false implication of some of the accused. Here is a case where the
occurrence, according to the learned Public Prosecutor, was due to a boundary dispute between two families. Therefore, false implication is
absolutely not possible, the learned Public Prosecutor contended. In respect of the non-sending of the blood stained weapons for chemical
examination, the learned Public Prosecutor submitted that, of course, it is a lapse, but that cannot be a ground to acquit the accused. The learned
Public Prosecutor concluded his argument by submitting that though here and there, there are certain lapses in the investigation and though there
are here and there certain contradictions between the evidences, that would not cause any dent in the case of the prosecution. Therefore, the
conviction recorded by the trial court needs to be sustained, he pleaded.
At the outset, before going into the rival contentions, I wish to place on record the following lapses on the part of the Respondent. As I have
already narrated, the two accused, namely, the 8th and 9th accused about whose presence and overt acts, P.Ws.1 to 3 and 7 have deposed at
length, have been acquitted by the trial court. I find No. reason as to why there was No. appeal preferred against the said acquittal by the State, if
it is the case of the prosecution that what was spoken to by these eye witnesses is true. There is No. satisfactory explanation in this regard from the
learned Public Prosecutor. Thus, the acquittal of the accused Nos. 8 and 9 thereby disbelieving the
evidences of P.Ws.1 to 3 and 7 remains unchallenged.
As I have already pointed out, the 4th accused has been convicted u/s 147 of Indian Penal Code and the accused Nos. 1, 2, 3, 5 to 7 have
been convicted u/s 148 of Indian Penal Code; that means according to the trial court, the assembly had a common object to prosecute. As I have
already pointed out, there were also charges against the accused under Sections 307 read with 149 (3 counts) and 302 read with 149 of Indian
Penal Code. But the trial court has acquitted all these accused from the charges u/s 149 of Indian Penal Code under all counts. But No. appeal has
been preferred by the State against the same. When a query was made to the learned Public Prosecutor as to why No. such appeal was preferred,
though it is the finding of the trial court that there was a common object and in prosecution of the same, the occurrence had taken place, he has
No. explanation to offer. Thus, the acquittal of the accused from the charges under Sections 149 read with 302 and 149 read with 307 of Indian
Penal Code under all counts remains unchallenged.
Admittedly, the deceased sustained two injuries on his head which had resulted in a depressed fracture, brain laceration etc. He fell
unconscious at the spot. Surgery was done to save him. But, he succumbed to the injuries soon thereafter. The weapons used are also dangerous
weapons according to the prosecution. In view of the said facts and in view of the specific finding that these fatal injuries were caused by the
accused, undoubtedly the act of the accused would fall both under the first limb and the third limb of Section 300 of Indian Penal Code and so, the
assailants should have been convicted only u/s 302 of Indian Penal Code. Strangely, the trial court has concluded that the accused had No.
intention to kill the deceased and so the offence committed by them would not fall within the ambit of Section 302 Indian Penal Code. The said
finding is patently erroneous. If the evidences of P.Ws.1 to 3 and 7 are believed, then the appropriate punishment in respect of the attack on the
deceased should have been only u/s 302 of Indian Penal Code. The learned Public Prosecutor has No. explanation to offer as to why No. appeal
was preferred challenging the same also.
With the above background, let me now consider the rival contentions raised by the learned Counsel on either side. Admittedly, there was a
long standing feud between the two families, namely, the family of the accused and the prosecution party. According to the case of the prosecution,
all these accused numbering nine suddenly appeared at the place of occurrence in which except the accused 8 and 9, all the other accused were
armed with weapons. It was with a common object. A perusal of the medical evidence as well as the eye witness account of the injured witnesses
would go to show that all the injured were profusely bleeding due to the injuries and they had fallen on the ground. P.W.4 and another person had
come to the place of occurrence on hearing the alarm raised by them. At that time, they noticed all the witnesses fallen on the ground with bleeding
injuries and there was also extensive blood stains on the earth. But, it is not satisfactorily explained by the prosecution as to why the blood stained
earth was not recovered from the place of occurrence. The learned Public Prosecutor would however submit that according to the evidence of
P.W.15, since it was too late in the night, P.W.15 could not notice as to whether there were blood stains found in the place of occurrence. When
he visited the place of occurrence at 6.30 p.m. on the next day, he found that there was No. blood stains. That is the reason why, according to
him, the blood stained earth could not be recovered. But, this explanation cannot be accepted at all. It is in the evidences of the injured witnesses
that blood had fallen on the earth and it was found at various places. It is also the evidence of P.W.15 that on the night, he had arranged for a
police constable to guard the place of occurrence and accordingly, he guarded. It is therefore mysterious as to how blood stains disappeared from
the place of occurrence. The disappearance of the blood stains from the place of occurrence has not been explained by the prosecution. Thus, the
explanation offered by P.W.15 for non-recovery of blood stained earth cannot be accepted. Therefore, I have got every reason to hold that it is a
lapse on the part of the Investigating Officer. However, on this ground, the question before the Court is as to whether the entire case of the
prosecution is to be doubted as it is projected by the learned Senior Counsel for the Appellants. The learned Senior Counsel has relied on few
judgments of the Honourable Supreme Court in this regard.
In Ramsewak and Others Vs. State of M.P., , the Honourable Supreme Court has held as follows:
...From the medical evidence we notice that the deceased suffered 3 major incised wounds leading to the severance of the blood vessels and
amputation of his hand near the wrist and the body in question was lying at the spot till the police came which was nearly 4 to 5 hours later but still
the investigating agency was unable to find any blood on the spot. of course, the prosecution has given an explanation that after the incident in
question it had rained but even then it is difficult to believe that even traces of blood could not have been found on the soil in spite of the rain. The
absence of any such material also supports the prosecution case that the incident in question might not have happened at the place of incident....
In Meharaj Singh (L/Nk.) Vs. State of U.P., , the Supreme Court has held as follows:
...The absence of any blood in the field of Kirpal Singh as also the absence of blood trail from the field of Kirpal Singh to the place where the dead
body was found, as admitted by P.W.8, also suggests that the occurrence did not take place in the manner suggested by the prosecution and that
the genesis of the fight has been suppressed from the court...
In the above referred to cases, the Honourable Supreme Court has acquitted the accused, also on the ground that the blood stained earth found on
the place of occurrence was not recovered. A close perusal of the above judgments would go to show that in those cases, there were doubts in
respect of the place of occurrence. Therefore, the Honourable Supreme Court had to say that the non-recovery of the blood stained earth would
result in failure of the prosecution to exactly fix the place of occurrence. It was in those circumstances, the Honourable Supreme Court, on the
ground that the blood stained earth was not recovered coupled with the other vital grounds, had to acquit the accused. But in the case on hand, the
facts are totally dissimilar. Here the occurrence had taken place near the boundary of the lands belonging to the accused and the prosecution party.
P.W.4 had seen all the injured persons lying on the spot. It was only from there, P.W.4 had taken the deceased and P.Ws.2 and 3 to the hospital.
There is No. reason to reject the evidence of P.W.4. Therefore, from the evidence of P.W.4, coupled with the evidence of the other witnesses, it
has been clearly established that all these injured persons sustained injuries only at the place of occurrence as it is projected by the prosecution.
Therefore, on the ground that the blood stained earth was not recovered, the entire case of the prosecution cannot be either doubted or rejected as
false. It is the settled law that it is only in a case where the lapses pointed out by the defence are of such a serious nature that it would go to the
very root of the prosecution case, the case of the prosecution shall be rejected. But in a case where despite the serious lapses in the investigation, if
the totality of the evidences placed before the court inspire the confidence of the court pointing to the guilt of the accused, there can be No. legal
impediment to act upon such materials so as to sustain the conviction (vide judgments of the Honourable Supreme Court in 2007 Cri.L.J. 758
(Rotash v. State of Rajasthan); Visveswaran Vs. State Rep. by S.D.M., and State of Madhya Pradesh Vs. Mansingh and Others, . In the instant
case, the non-recovery of the blood stained earth, though a serious lapse, has not caused any dent in the case of the prosecution and so, the first
limb of the argument of the learned Counsel for the Appellant is rejected.
Coming to the recovery of the weapons, the learned Senior Counsel for the Appellants would point out that according to the case of the
prosecution, the Material Objects, namely, M.Os.1 and 2 were recovered on the alleged confession given by the 3rd accused on his arrest. But it
is the evidence of P.W.3 that the weapons were thrown by the accused 2 and 3 at the place of occurrence immediately after the occurrence. This
part of the evidence of P.W.3 would surely go to prove that the so called recovery of the weapons from the accused 2 and 3 cannot be true. I find
every force in the said argument of the learned Senior Counsel. Therefore, I am inclined to reject the case of the prosecution in respect of recovery
of M.Os.1 and 2 on the so called confession of the 3rd accused.
Now coming to non-forwarding of the weapons for chemical examination, the only explanation offered by the learned Public Prosecutor is that
visibly, there was No. blood found on the weapons, except M.Os.1 and 2 and that was the reason why the Investigating Officer did not think it
necessary to forward the said weapons also for chemical examination. But a perusal of the recovery mahazar would go to show that there were
blood stains in many of the weapons. This would only go to show that there would have been some blood stains on the weapons. But these
weapons except M.Os.1 and 2 were not sent for chemical examination. It is yet another lapse on the part of the Investigating Officer. But on this
ground also, the case of the prosecution cannot be doubted as the same has not caused any dent in the case of the prosecution in any manner.
The learned Public Prosecutor would rely on the judgment of the Honourable Supreme Court in Baboolal v. State of U.P. Reported in 2001
SCC (Crl) 1484 to substantiate his contention that these lapses can be the ground for acquittal. In the said judgment, the Honourable Supreme
Court has held as follows:
We also agree with the learned Counsel for the Appellant that blood would have dripped outside the body and it should have been there at the
scene. But the mere fact that the investigating officer did not notice blood at the spot on the next evening is hardly sufficient to conclude that the
incident did not happen at this place at all. Apart from the sturdy testimony of the eyewitnesses, we take into account the reluctant evidence of the
tea-shop owner, Abdul Nabi who practically admitted that the murder of the deceased took place in front of his shop though not at close proximity
to it.
In my considered opinion too, as observed by the Honourable Supreme Court, mere failure of the Investigating Officer to recover the blood
stained earth and to send the weapons for chemical examination and the other similar lapses cannot be a ground to acquit the accused thereby
disbelieving the entire case of the prosecution unless it is shown by the defence that such lapses have caused a very serious dent in the case of the
prosecution so as to doubt the veracity of the eye-witness account. As I have already concluded, in the case on hand, these lapses cannot form the
basis for acquittal.
The next contention is in respect of the so called contradiction between the medical evidence and the evidence of the eye-witnesses in respect
of the wounds found on the deceased. The learned Senior Counsel for the Appellants would submit that P.W.6-Doctor has stated that the two
major injuries found on the head of the deceased would not have been caused by either spear or Aruval. Relying on the said evidence spoken to
by P.W.6 during cross-examination, the learned Senior Counsel would submit that the medical evidence completely contradicts the eye-witnesses
account. This argument is liable to be rejected at the outset for the simple reason that P.W.5 who conducted postmortem examination and who
had occasion to look into the injuries very deeply has clearly stated that these injuries would have been caused by M.Os.1 and 2 as it is stated by
the prosecution. P.W.6 was not present at the time of postmortem. He was the one who only noticed the injuries after they were sutured.
Therefore, his opinion cannot carry any weightage. In my considered opinion, in the light of the eye-witness account of P.Ws.2 and 3 to the effect
that these injuries were caused by spear and Aruval which is duly corroborated by the evidence of P.W.5, it is too difficult to accept and to act
upon the evidence of P.W.6. Therefore, his opinion is also rejected.
The last argument of the learned Senior Counsel for the Appellants is that the prosecution has not come forward with the true version of the
occurrence. That is the main contention of the learned Senior Counsel. For this purpose, the learned Senior Counsel would take me through the
evidences of P.Ws.1 to 3 and 7 and also the medical evidence. He has also taken me through the medical records such as Wound Certificate,
Accident Registers of the injured witnesses including the postmortem certificate of the deceased. According to him, since there are number of
accused, number of injured and number of injuries, false implication of some of the accused in this case cannot be ruled out. The learned Senior
Counsel would submit that the way in which the injuries have been distributed to the accused would go a long way to create suspicion in the case
of the prosecution. He would also submit that in general, the evidences of the injured eye-witnesses are to be believed; but, there are also cases
where the evidences of the injured eye-witnesses are also to be rejected if their evidences do not inspire the confidence of the court.
But the learned Public Prosecutor would submit that false implication of these accused in this case is very remote. According to him, the
complaint was preferred without any delay and the same was received by the court also without any delay. This, according to the learned Public
Prosecutor, ensures that the earliest version has been promptly placed before the court which clearly spells out the overt acts of all these seven
accused.
I have considered the above rival submissions.
A perusal of the charge framed against these accused, as I have already stated, would reveal that the accused Nos. 8 and 9 stood charged for
offfence u/s 342 of Indian Penal Code. P.Ws.1 to 3 and 7 have vividly narrated the presence of the accused 8 and 9 and their overt acts. The trial
court has however disbelieved the evidences of these witnesses in respect of the participation of the accused Nos. 8 and 9. The acquittal of the
accused Nos. 8 and 9 is not under challenge before this Court and the same has become final. Therefore, it is obvious that the accused Nos. 8 and
9 have been falsely implicated in this case as accused.
Simply because some of the accused have been acquitted by disbelieving he evidences of the eye-witnesses, it is not automatic that the
evidences of all the eye-witnesses are to be rejected as against the rest of the accused also. The concept of falsus in uno falsus in omnibus has got
No. application in India. However, it is the bounden duty of the court to very cautiously approach the evidences of all the witnesses in the light of
the fact that their evidences have been rejected in respect of some of the accused. In order to have such cautious approach, let us now look into
the charge No. 3, which relates to the accused Nos. 8 and 9. According to the positive case of the prosecution, they did not cause any injury on
the prosecution party. Regarding the rest of the accused, each accused has been attributed with one single overt act. Totally, there were four
injured in this case. They sustained each at least two injuries. Each injury is attributed to one accused. Pointing out this aspect, the learned Senior
Counsel would submit that it is quite unnatural that when a group of people mounted attack on another group of people, each accused would have
caused one single blow on one witness. I find every force in the said argument in the light of the fact that already the trial court has found that the
two accused, namely, A8 and A9 have been falsely implicated. If we look into the above overt acts attributed to these accused, namely, A1 to A7,
it would clearly go to show that it is as though each one accused appeared in the scene of occurrence, caused one single injury and went away
from the scene of occurrence without making any more attack. This is highly unnatural. By all probabilities, had it been true that a group of people
mounted attack on another group of people, they would have caused number of blows on the injured and they would not have rest contend with
one blow each. This is highly unbelieveble. Further, the accused 5 and 7 are women. All these accused belong to either one or the same family.
Similarly, the prosecution witnesses P.Ws.1 to 3 belong to the same family. The enmity between the two families is an admitted fact. In such view
of the matter, it cannot be ruled out that at least some of the accused have been falsely implicated in the case. This conclusion is irresistable
because of the fact that each of the accused has been attributed with one blow and one injury, as I have already concluded, it is highly unnatural. In
a case where the court is in a position to separate the grain from the chuff, then there can be No. impediment for the court to act upon the grain
and to convict the accused. In this case, out of the seven accused, who really did participate in the occurrence cannot be clearly found out as it is
too difficult to separate the grain from the chuff. It is on this ground, I am in full agreement with the learned Senior Counsel for the Appellants that
the prosecution has not come up with the true version of the occurrence. Though it is true that P.Ws.2 and 3 are injured witnesses, since their
evidences do not inspire the confidence of the court, in my considered opinion, it is not safe to sustain the conviction, solely acting upon the
evidences of P.Ws.2 and 3 as well as P.Ws.1 and 4.
The learned Public Prosecutor would contend that the complaint in this case was given by P.W.1 without any delay. The same was received
by the court without any undue delay which according to him ensures the true version of the occurrence. It is true that as per the settled law, delay
in preferring the complaint and the delay in forwarding the complaint to court, would normally create doubt in the case of the prosecution. Prompt
launching of the First Information Report and prompt despatching of the First Information Report to court generally assures the truth. But it cannot
be an irresistable conclusion that because there is No. delay, what is contained in the First Information Report and what is projected by the
prosecution is a gospel truth. Even without any delay, it is possible to fabricate a false case against some of the accused. As I have already
narrated, from the materials available on record, it strikes the mind of the Court that P.W.15 and P.W.1 had taken note of the number of injured,
the number of injuries and the nature of injuries and thereafter the complaint has been fabricated roping in all the persons belonging to the very
same family including two women. It is for these reasons, I am of the firm view that it is not safe to sustain the conviction of all these accused. The
prosecution suffers from lot of infirmities and lapses which create doubt in the mind of the Court and the said doubt, as pointed out by the learned
Senior Counsel for the Appellants earlier, have not been explained away by the prosecution. In view of all the above, I hold that the
accused/Appellants are entitled for acquittal.
In the result, the Criminal Appeals are allowed; the conviction and sentence imposed by the trial court on the Appellants is set aside and the
Appellants/accused are acquitted of all the charges. The fine, if any, paid by the Appellants/accused shall be refunded to the respective accused
and the bail bonds, if any, executed shall stand discharged.