Soundararajan and Others vs State

S. Nagamuthu, J—The appellants are the accused 1 to 4 in S.C. No. 23 of 2007 on the file of the learned Additional Sessions Judge, Fast Track Court, Pudukottai. There were four charges against them. The first charge is against all the four accused under Section 452 IPC and the 2nd charge is under Section 427 IPC against all the four accused. The third charge is under Section 307 IPC against the first accused for having attempted to kill one Mr. Chandrasekaran. The 4th charge is against 2nd accused under Section 307 IPC for having attempted to kill one Mr. Alagappan. The 5th charge is against the third accused under Section 323 IPC for having attacked one Chandrasekaran. The 6th charge is against the third accused under Section 325 IPC for having attacked one Alagappan and causing grievous hurt voluntarily. The 7th charge is against the 4th accused under Section 323 (3 counts) for having attacked one Mr. Veeran alias Veeraiyan, Vasantha and Muthusamy. By judgment dated 25.07.2007, the trial Court found the first accused guilty under Section 307 IPC. The 2nd accused under Section 324 IPC. The third accused under Sections 323 and 325 IPC. The 4th accused under Section 323 (2 counts) and all the accused under Sections 452 and 427 IPC.

The trial Court sentenced all the four accused under Section 452 IPC to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- each, in default, to undergo rigorous imprisonment for one month; Under Section 307 IPC, the trial Court has sentenced the first accused to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for six months, under Section 324 IPC, the trial Court sentenced the 2nd accused to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for three months, under Section 325 IPC, the trial Court has sentenced the third accused to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for three months. Under Section 323 IPC, the trial Court has sentenced the third accused to pay a fine of Rs. 500/- for each count and in default to undergo rigorous imprisonment for three months and under Section 323 (2 counts) the trial Court has sentenced the 4th accused to pay a fine of Rs. 500/- for each count, in default, to undergo rigorous imprisonment for three months. Challenging the said conviction, the appellants are before this Court with this appeal.

The case of the prosecution in brief is as follows:

P.W. 1 is the son of P.W. 2. They had a building at Gandharvakottai. In the said building, there were lot of shops, which were given on rent to various persons. According to the prosecution, one of the shops was rented out to one Mr. Veeran alias Veeraiyan (P.W. 4) and he was in possession of the same. On 12.03.2001, at about 6.30 a.m., P.W. 4, had gone to the shop to open to commence the business. At that time, P.Ws. 1, 2, 3, 5 and 6 were also present. When P.W. 4 was opening the shop, these accused suddenly came to the place of occurrence, all armed with weapons. They were all armed with dangerous weapons like arrival, crow bar and wooden logs. They questioned P.W. 4 as to why he open the shop, as according to them, the shop was in their possession. This resulted in a wordy quarrel. Suddenly, all the accused started causing damage to the chairs, boxes and other materials in the shop. When P.W. 2 questioned the same, the first accused shouted at him saying that so long as P.W. 2 was alive, it would be a nuisance for them to live peacefully. So saying, the first accused attacked him with crow bar on his head. The 2nd accused attacked P.W. 3 with aruval near the left eye. The third accused attacked P.W. 3 with wooden log on the left hand. When P.W. 2 attempted to prevent further attack, the first accused attacked P.W. 2 with wooden log on his head repeatedly. P.W. 4 tried to intervene. A3 attacked him also with wooden log. P.W. 4 sustained injuries on his right wrist and fell down. The 5th accused attacked P.W. 4 on his left thigh with wooden log. P.W. 5 Vasantha intervened. The 4th accused attacked her repeatedly with wooden log. P.W. 6 Muthusamy also intervened and he was also attacked repeatedly with wooden log by A4. Thus, all the accused escaped from the scene of occurrence.

3.1. After the occurrence, P.W. 1 took P.Ws. 2 and 3 to the Government Hospital at Gandharvakottai. Then, he proceeded to the Gandharvakottai Police Station and preferred a complaint under Ex. P1. P.W. 10 was the then Head Constable attached to Gandharvakottai Police Station. On receipt of Ex. P1 from P.W. 1, he registered a case in Crime No. 44 of 2001 under Sections 427, 323 and 307 IPC at 8.00 a.m. on 12.03.2001. Then, he forwarded the FIR and the complaint to the Court and handed over the case diary to P.W. 11 for investigation. Taking up the case for investigation, P.W. 11 proceeded to the place of occurrence, prepared an observation mahazar and rough sketch in the presence of witnesses showing the place of occurrence. Then, he examined the injured witnesses and recorded their statements.

3.2. P.W. 9 Doctor Ambujam was then a Civil Surgeon attached to Thanjavur Medical College Hospital. It appears that the injured, who were taken to the Government Hospital, Gandharvakottai, were later on shifted to the Thanjavur Medical College Hospital. P.W. 9 examined P.W. 2 on 12.03.2001. She found a lacerated injury measuring 1 1/2 c.m. x 1/2 x 1/2 cm near the left eyebrow and contusion measuring 2 x 2 cms on the left knee. On the same day, at 8.15 a.m., she examined Chandrasekaran P.W. 2. He found a lacerated injury 3 x 1/2 cm on the middle of the head and another sutured wound measuring 1 1/2 cms and yet another injury 3 x 1/4 cm on the back of head. She found tenderness on the left elbow. She opined that the injuries sustained by P.W. 2 are simple in nature. She gave opinion that the injury on the elbow was grievous in nature. P.W. 12 examined P.Ws. 4, 5 and 6 on 12.03.2001 at 7.00 p.m. On examining P.W. 5, he found contusion measuring 2 x 2 cm on the right thigh. Another contusion measuring 7 1/2 x 4 cm on the right thigh. She opined that the injury was simple in nature. On the same day, at 7.00 p.m., she examined P.W. 4 and she found no external injury on him. Taking up the case for further investigation, P.W. 13 examined the Doctors collected medical records and filed a final report against the accused.

Based on the materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case on the side of the prosecution, as many as 13 witnesses were examined and 11 documents were exhibited against the accused. Off the said witnesses, P.Ws. 2 to 6 are the injured witnesses, who have spoken about the injuries sustained by them and P.W. 1 was the eye witness, who has spoken about the occurrence. P.W. 7 has spoken about the observation mahazar, rough sketch prepared. P.Ws. 8, 9 and 12 are the Doctors, who have spoken about the treatment given to the injured. P.W. 10 has spoken about the registration of the case and P.Ws. 11 and 13 have spoken about the investigation done.

When the above incriminating materials were put to the accused, they denied the same as false. According to them, the prosecution party were the aggressors and they only attacked the accused. According to them, on the complaint made by A1 in respect of the very same occurrence, a case in Crime No. 45 of 2011 was registered. But the same was not investigated properly. Having considered all the above materials, the trial Court found the accused guilty on the various penal provisions as detailed in the first paragraph of this judgment and accordingly punished them. That is how, the accused are before this Court with this appeal.

I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor and I have also perused the materials available on record.

The foremost contention of the learned counsel for the appellants is that the prosecution has not come forward with true version of the occurrence and they have suppressed the material facts from the eyes of the Court. In order to substantiate the said contention, the learned counsel would submit that P.W. 3 has admitted that the shop in question was in possession of A1 under tenancy. The learned counsel would further point out that the complainant party had gone to the shop illegally and attempted to trespass into the same by breaking open the shop. When this was resisted, the complainant party attacked the accused party, against which only a case in Crime No. 45 of 2001 was registered. But according to him, there was no investigation done in Crime No. 45 of 2001 and the entire version of the accused were suppressed by the prosecution. Thus, the prosecution has not come forward with clean hands, the learned counsel contended.

The learned Additional Public Prosecutor would further submit that it is true that a case in Crime No. 45 of 2001 was registered, but it was thoroughly investigated and since it was found that the accused party were the aggressors, the case in Crime No. 45 of 2001 was referred as ''Mistake of Fact''. The learned counsel would take me through the evidence of P.Ws. 11 and 13, which states that Crime No. 45 of 2001 was referred as "Mistake of Fact". The learned Additional Public Prosecutor would further submit that the accused party had not sustained any injury at all in the occurrence and if it is true, there was a clash between two groups, quite naturally, the accused party would have also sustained injury. The very fact that the accused party did not suffer any injury would clearly show that the accused party were the aggressors.

I have considered the above submissions.

Admittedly, the dispute is in respect of a shop. P.W. 3 has admitted that the accused party were in possession of the shop as tenants. When that be so, the complainant party had no business to go to the shop illegally to open and to trespass into the same. This positive admission made by P.W. 3 would go to show that the prosecution party were the aggressors. Now, in respect of the very same occurrence, there were two complaints made and two cases registered. To be fair on his part, the Investigating Officer could have investigated both the cases simultaneously in order to unearth the truth, who are the aggressors and who had committed the crime. Having done so, the Investigating Officer could have been free to refer the case, in which, it is found that the complainant party are the aggressors. Not only that after having referred the case as ''Mistake of Fact'', it is the duty of the investigating officer to place all the materials collected and the counter case before the Court for its appreciation. Ultimately, it is only for the Court to appreciate the materials placed before the Court by way of evidence and to find as to who were the aggressors to commit the offences.

But, in this case, unfortunately, the Investigating Officer has not at all produced any documents or materials collected during the so called investigation of the case in Crime No. 45 of 2001. Thus, the version put forward by the accused party has been completely suppressed. This shows that no effort has been taken to unearth the truth in the case. This Court cannot simply act upon his statement or the findings, which has stated that he has thoroughly investigated the case in Crime No. 45 of 2001. Whether the case in Crime No. 45 of 2001 has been thoroughly investigated and whether the materials collected by him would justify his conclusion, are all matters for the judicial decision of this Court. Unfortunately, the investigating officer has failed to do so. Now, only one evidence collected in Crime No. 44 of 2001 alone is available before this Court.

Apart from that, though the occurrence was in a busy locality, where there are number of shops and where there are number of persons present, no independent witnesses were examined by the Investigating Officer. It is quite natural that the accused party would say that they were not the aggressors and the prosecution party would also equally say that they would not be the aggressors, really, who were the aggressors is for the judicial decision of the Court, if only independent witness had been examined and it is not explained to the Court that as to why no independent witness has been examined at all to speak about the occurrence.

Above all, the Investigating Officer had not examined the Doctors, who treated the injured at Government Hospital at Gandharvakottai. When the injured were taken to the Thanjavur Medical College Hospital, already the injuries had been stitched. Therefore, the Doctors were not in a position to say that the injuries has been caused in the manner alleged by the prosecution. This is yet another flaw in the case of the prosecution. To put it nutshell, the prosecution has not come forward with clean hands and the prosecution is found guilty of suppression of one version. On that ground, I find it difficult to sustain the conviction and sentence imposed by the trial Court. Therefore, I hold that the prosecution has failed to prove the case beyond reasonable doubt.

In the result, the appeal is allowed. The conviction and sentence imposed on the appellants are set aside and the appellants are acquitted of all the charges. Bail bond shall stand terminated. Fine amount, if any, paid by the appellants shall be refunded to them.