Suresh, Raniammal and Mokkathai vs State

R. Regupathi, J.—The appellants are accused 1 to 3 in this case. Second and third accused are the mother and grand mother respectively of the first accused. The deceased is the mother of P.W.1 and wife of P.W.2.

The case of the prosecution, in short, is that there was a wordy quarrel between the accused and the deceased on account of filling up and closing of a well to form a passage and in pursuance of that, on 25/05/1999, at 7.00 A.M., the second accused caught hold of the deceased, the first accused caused injury on the head of the deceased with a weed remover and when P.W.1 intervened to save her, he was prevented by the third accused. Due to the injuries sustained, the deceased died on the same day in the hospital.

The trial Court framed two charges against the accused. As per the first charge, on 25.05.1999 at about about 7.00 A.M. at Poochampatti, the second accused wrongfully restrained the deceased and thereby committed the offence punishable u/s 341 of the Indian Penal Code. As per the second charge, during the course of the same transaction, when the second accused caught hold of the deceased, the first accused caused injury on the head of the deceased twice with a weed remover and further, kicked her on her flank and at that time, the third accused obstructed P.W.1, who rushed towards deceased to help her and thereby, A.1 to A.3 committed the offence punishable u/s 302 r/w. 34 of the Indian Penal Code.

Initially, when the accused were questioned, they denied the charges and pleaded not guilty. Therefore, the trial of the case was taken up. The prosecution, in order to substantiate its case, examined P.Ws.1 to 16, marked Exs.P.1 to P.24 and produced M.Os.1 and 5. The learned trial Judge, after hearing both sides, convicted A.1 to A.3 u/s 302 r/w 34 of the Indian Penal Code and sentenced each of them to undergo life imprisonment and to pay a fine of Rs. 100/- each, in default, to undergo simple imprisonment for one month. A.2 was convicted also u/s 341 of the Indian Penal Code and sentenced to undergo simple imprisonment for two weeks. The sentences imposed on the second accused were ordered to run concurrently. Aggrieved against the order of conviction and sentence passed by the trial Court, the accused have preferred the present Criminal Appeal.

The case of the prosecution, as unfurled by its witnesses, is briefly narrated below:

P.Ws.1 and 2 are the son and husband respectively of the deceased. P.Ws.3 and 4 are independent eye witnesses.

It is the evidence of P.W.1 that there was a dilapidated well near the school in the village and it was decided by the villagers to close the same and a resolution in the panchayat was also passed to that effect. The second accused, who was a Member of the 4th ward, was assigned with the job of filling up and closing the well. On 24.05.1999 at about 11.00 A.M., A.1 to A.3, along with their workers, removed the stone in the wall of the well for their personal use and on being informed of the same, P.W.1 told the accused not to take the stone since it belongs to the village, whereupon, the accused abandoned the task, however, got angry. On 25.05.1999, i.e. on the next day, while P.W.1 was in his residence, he heard the yelling of the deceased and rushed to the scene of occurrence along with other witnesses and found the second accused quarrelling with the deceased stating that she is a ward Member and how could her son question her, when he is a ward Member. So saying, the second accused caught hold of the deceased and the first accused, with weed remover, assaulted the deceased on the front and rear portion of the head and thereafter, kicked her on the right side of the stomach. The deceased fell down on the road and when P.W.1 went near to help her, A.3 prevented him. The deceased was taken in an auto rickshaw to the police station, where she made oral complaint and the same was reduced into writing as Ex.P.12. Thereafter, the deceased was taken to the hospital. P.W.1 identified M.Os.1 to 5 viz. sari and blouse of the deceased, shirt and lungi of the first accused and the weed remover.

P.W.2, the husband of the deceased, also accompanied the deceased and P.W.1 to the police station as well as to the hospital. He has corroborated the testimony of P.W.1. P.Ws.3 and 4, who were examined as eye witnesses, also corroborated the testimony of P.W.1.

P.W.6 is the Panchayat President and he deposed that, after receiving a requisition from the Headmaster of the school to close the dilapidated well near the School, a resolution was passed to that effect and A2, Member of the 4th ward was put in charge of the task with a direction to close the well and keep the stone for common use in the village. He came to know about the quarrel between the accused and P.W.1 when A.2 removed the stone to his residence.

P.W.14 the Sub-Inspector of Police, after receiving the complaint Ex.P.12 on 25.05.1999 at 7.30 A.M. from the deceased, aged 53, with injuries on the head, registered a case in Crime No. 199 of 1999 under Sections 341, 323, 324 of the Indian Penal Code. Ex.P.13 is the printed First Information Report. Thereafter, the deceased was forwarded to the Government Hospital for treatment. On the same day, at about 9.00 A.M., A.2 appeared with injuries and presented a complaint and the same was registered in Crime No. 200 of 1999 under Sections 341, 323, 336, 324 of the Indian Penal Code. She was also forwarded to the hospital for treatment. Thereafter, the Sub-Inspector went to the scene of occurrence at 10.30 A.M. and prepared observation mahazar Ex.P.1 and rough sketch Ex.P.14 in the presence of witnesses. In the Government hospital, he recorded the statements of P.Ws.1 and 2 and other witnesses.

P.W.9, the Medical Officer, Government Rajaji Hospital, on 25.05.1999, at about 9.10 A.M., examined the deceased, who was accompanied by her son. The Medical Officer found the deceased unconscious and issued Ex.P.5, accident register, noting down the injuries. P.W.10 the Medical Officer, Government Rajaji Hospital, found the deceased deed on 25.05.1999 at 1.00 P.M. and Ex.P.6 is the death intimation.

At 3.00 P.M. on receipt of death intimation from the Government Hospital, P.W.14 went to the hospital at 4.00 P.M., received the memo, returned back to the Police Station, altered the offence into one u/s 302 of I.P.C. and sent the Express Report under Ex.P.15 to the superior officials and to the Court. P.W.8, the Head Constable, delivered the same to the Court on 25/05/1999 at 19.25 hours.

P.W.16 the Investigating Officer, on receipt of copy of the Express Report, proceeded to the scene of occurrence and, after verifying the investigation conducted by the Sub Inspector of police, examined the witnesses and recorded their statements. On 26.05.1999, he conducted inquest over the dead body of the deceased and examined the witnesses present there. Ex.P.17 is the inquest report. A.3 was arrested on 26.05.1999 by the investigating officer and was sent to judicial custody. On coming to know that A.1 and A.2 surrendered before Court on 26.05.1999, he took them to police custody on 03.06.1999. On examining the first accused, he gave a voluntary confession statement and in pursuance of the same M.O.3 shirt, M.O.4 lungi and M.O.5 weed remover were recovered under a cover of mahazar in the presence of P.Ws.7 and 15. Ex.P.18 is the admitted portion of the statement. On 04.06.1999, A.1 and A.2 were sent for judicial remand. In the meantime, the dead body was forwarded through P.W.12, Police Constable, for the purpose of post-mortem.

P.W.11 is the medical officer, who conducted autopsy over the dead body of the deceased on 26/05/1999 and issued Ex.P.7, the post mortem report, wherein, he has noticed the following:

A transversely oblique sutured wound left parieto-temporal area 5 x 1 cm x bone deep with contused margins.

A transversely oblique contusion on the occipital area 6 x 3 cms.

The Medical Officer opined that the deceased would appear to have died of external injury Nos. 1 and 2 and their corresponding internal injuries to the skull and brain (Cranio Cerebral Injuries).

P.W.16, the Investigating Officer, despatched the Material Objects to the Court with a requisition to send the same for chemical examination. P.W.13, the Court Translator, forwarded those items under Ex.P.11 to the Forensic Lab for chemical analysis. Exs.P.9 and P.10 are chemical analysis and serologist reports. The investigating officer, after examining the witnesses and receiving forensic and medical opinions, concluded the investigation and filed final report before the Court.

The learned trial Judge questioned the accused u/s 313 of the Code of Criminal Procedure with reference to the incriminating materials adduced by the prosecution, for which, the accused denied their complicity in the crime and pleaded innocence. On the side of the defence, D.W.1 and D.W.2 were examined and Exs.D.1 to D.4 were marked. D.W.1 is the second accused in this case. In her evidence, she has stated that the District Collector passed an order to close the well and a resolution also was passed to that effect by the Panchayat. Since she happens to be the Member of the 4th ward, a direction was issued to her to fill up and close the well. When they were doing that work along with the workers, P.W.1 and the deceased obstructed to the same. Though it was said that they were carrying out the job as per the directions of the District Collector, P.W.1, armed with spade, assaulted her on the head and threatened her stating that she would be done to death. When her son/A.1 intervened, he was assaulted by P.W.1 with arruval. The deceased and others threw stones on her and she received injury on the right hand. The neighbours interfered and separated them. Thereafter, she went to the Police station and preferred a complaint and from the police station, she was forwarded to the hospital. Since the complaint given by her was not properly investigated, a private complaint under Ex.D.1 was filed before the Judicial Magistrate, Usilampatti. Ex.D.2 is the bail order, dated 05.07.1999, passed by the Principal Sessions Judge, Madurai, wherein, the case of the prosecution has been narrated and the averments are in her favour. Ex.D.3 is the Telegram, dated 27.05.1999, sent to the Sub Inspector of Police, Checkkanoorani. Ex.D.4 is the representation, dated 08.11.2001, sent to the Deputy Superintendent of Police, Usilampatti. D.W.2, the daughter of D.W.1, speaks about the enemity between the accused and the deceased and also about the telegram sent in that regard to the police.

The learned trial Judge, after hearing the arguments advanced on either side and perusing the records placed, convicted and sentenced the appellants as aforementioned; hence, the present appeal.

The learned Counsel for the appellants at the first instance, submitted that A.3, a fragile old woman, who was aged about 63 years at the time of occurrence, could not have obstructed P.W.1, who is said to have intervened to help the deceased and it is apparent that she has been falsely implicated in the case. Though it is the case of the prosecution that A.1 assaulted the deceased with weed remover, A.2 has been falsely implicated since she happens to be the mother of A.1. It is alleged that A.2 caught hold of the deceased to facilitate A.1 to attack the deceased. By looking at the injury said to have been caused by A.1, it could be discerned that A.2 need not have caught hold of the deceased; thus, it leads to a positive presumption that a false case has been foisted against A.2 and A.3, since they happen to be the mother and grand mother respectively of A.1. He further submitted that the deceased party are the aggressors. As per the order of the District Collector and the resolution passed by the Village Panchayat, on 25.05.1999, A.2 was carrying out the job with other workers and, while the work was at progress, P.Ws.1 and 2 and the deceased obstructed and indulged in quarrel. Though such aspect is not disputed at all, the prosecution has conveniently suppressed the origin and genesis of the facts. A.2 also sustained severe injuries on the head and immediately after the occurrence, she went to the police station and lodged a complaint. She was also forwarded to the Government Hospital for treatment. Though a case was registered on the complaint given by A.2, no proper investigation was conducted thereon and ultimately, the case came to be referred as mistake of fact.

Learned Counsel also submitted that admittedly, A.1 and A.2 also sustained injury and, as per police memo, they were treated in the Government Hospital. The doctor, who treated the accused were not examined and the wound certificates were not marked by the prosecution. The present case is a classic example where the prosecution made all possible efforts to suppress the materials from being produced before the trial Court. Even as per the evidence of P.Ws.3 and 4, independent eye witnesses, there was a wordy quarrel between the accused and the deceased in which both parties involved in "push and pull" and both parties sustained injuries and went to the police station. Under such circumstances, it is very much clear that the occurrence would not have been taken place in the manner as put forth by the prosecution. P.Ws.1 and 2 are the son and the husband respectively of the deceased and they are interested/inimical witnesses. In a case of this nature, it is the bounden duty of the prosecution to explain the injuries sustained by the accused. A.2 sustained injury on the forehead and A.1 was also attacked. To substantiate the same, materials are available on record as annexure to the referral report filed by the investigating officer.

The learned Counsel for the appellant relied on the case law reported in 2002 Scc (Cri) 1659 (Subramani v. State of T.N.), and pressed into service the following passage at page No. 1661:

The appellants suffered injuries on vital parts of the body, even though simple but the prosecution failed to give any explanation for such injuries. The prosecution feigned ignorance about the injuries suffered by the appellants. It is not possible to accept the submission that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version. It may well be that the prosecution witnesses were lying on a material point and, therefore, render themselves unreliable, or it may be that the defence version explaining the injuries on the person of the accused is probably the true version of the occurrence which certainly throws a serious doubt on the prosecution case.

Next, he relied on the case law reported in 2005 M.L.J. (Crl.) 1005 (Perumal v. State), wherein, it is observed thus:

In a murder case, non-explanation of the injuries sustained by the accused, at or about the time of the occurrence is a very important circumstances, from which the Court can draw the inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version and that in a case where there is definite version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.

...

The prosecution has not come with clean hands but suppressed vital documents. The injuries on the accused has not been explained. There must have been a complaint by the accused and the police did not investigate the same. A doubt is thrown on the case of the prosecution.

He placed much reliance in the following observation of the Apex Court in the case law reported in Lakshmi Singh and Others Vs. State of Bihar, and in particular the following passages:

In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

...

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.

...

There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.

...

Held, on facts and circumstance that the High Court was in error in brushing aside the serious infirmity in the prosecution case regarding non-explanation of injuries sustained by the accused on unconvincing premises. ...

The question whether the Investigating Officer was informed about the injuries was wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses was the person who examined the accused also.

...

In view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances, it was clear that the prosecution had miserably failed to prove the case against the appellants beyond reasonable doubt. Cr. App. Nos. 479 and 483 of 1968, D/- 30-4-1971 (Pat), Reversed.

Per contra, the learned Additional Public Prosecutor submits that the occurrence was witnessed by P.Ws.1 to 4. The occurrence took place at 7.30 A.M. and report was given to the police without any loss of time at 8.00 A.M. by the deceased herself. So, the complaint given by the deceased would amount to dying declaration. In the complaint, the deceased has narrated the occurrence in detail including the motive and participation of all the accused. Ex.P.12, the complaint given by the deceased reached the Magistrate at 3.45 P.M. without any delay. Therefore, the truthfulness of narration in the complaint cannot be suspected. The version of the deceased in the complaint in the form of dying declaration is corroborated by P.Ws.1 to 4. The ocular testimony of P.Ws.1 to 4 has been corroborated by the medical evidence. After the arrest of the accused, blood-stained material objects were recovered through the accused and the same connect them with the crime committed. The doctor has also opined that the death of the deceased was due to the injuries sustained. Proper investigation was conducted on the complaint given by A.2 and since there is no truth therein, it was referred as mistake of fact. According to the learned Additional Public Prosecutor, the case of the prosecution has been proved beyond reasonable doubt and the reasonings given by the trial Court for convicting and sentencing the appellants are well founded, hence, the appeal is liable to be dismissed.

We have meticulously perused the evidence available on record and carefully considered the submissions made on either side.

It is admittedly a case in counter. The complaint of the deceased was entertained at 8.00 A.M. and that of A.2 at 9.00 A.M. Both the deceased and A.2 were forwarded to the Government Hospital for treatment. On account of the death of the deceased, the penal provision came to be altered as one u/s 302 I.P.C. and in that perspective, investigation was conducted. While taking up investigation of the case registered at the instance of the deceased, it is equally important that proper investigation must be conducted on the complaint lodged by the second accused. The medical officer, who examined the accused, was not examined during the course of the trial. The wound certificates given to A.1 and A.2 were not at all marked. On a perusal of the accident register issued to the accused, we could see that A.2 sustained injury on the forehead, which is a vital part of the body. Similarly, on a perusal of the complaint lodged by A.2, we could discern some truth in the allegation made against the deceased. Such allegation has been corroborated by P.W.6, the Panchayat President. He categorically deposed that A.2, Member of the 4th ward, was put in charge of the work to fill up and close the well and that a quarrel ensued when the deceased party i.e., P.W.1 alleged that A.1 and A.2 took away the stone of the well for their personal use. If that was really so, P.W.1 and the deceased would have reported the same to P.W.6, the Village Panchayat President, but, they indulged in quarrel with A.2. Under such circumstances, we could infer that the deceased party are the aggressors.

Prima-facie, we could see that certain materials which are in favour of the accused have been suppressed. It is the bounden duty of the prosecution to place all the available materials before the trial court to come to a conclusion one way or the other. It appears that the complaint of A.2 was not properly investigated. It is reported that the referral report was filed before the learned Magistrate only after the charge sheet filed in this case. It is true that the case of the prosecution has been initiated on the complaint given by the deceased and such complaint could be construed as a dying declaration. Even in the dying declaration, though the participation of A.2 and A.3 with regard to causing of injuries on the deceased is mentioned, those accused were robed with certain overt acts, which are flimsy in nature. A.3, grand mother of A.1 and a feeble woman is alleged to have obstructed P.W.1 at the time when he intervened to help the deceased. P.W.1 was aged about 31 years at the time of occurrence and A.3 about 63 years. So, the obstruction of P.W.1 by A.3, on the face of it, is unbelievable. Independent witnesses P.Ws.3 and 4 have spoken to about the wordy quarrel and the "push and pull" at the time of occurrence. If that was really so, A.2 would not have caught hold of the deceased. The occurrence might have taken place in a spur of the moment and A.1 would have caused such injuries. But, there exists an equal allegation that P.W.1 and the deceased caused injury on the forehead of A.2 and on the left hand. Admittedly such injuries were not explained. The above aspect throw a doubt on the truthfulness and authenticity of the prosecution case. The precedents relied on by the learned Senior Counsel are squarely applicable to the facts of the case on hand.

Moreover, in a case law reported in 2000 Scc (Cri) - 285 (Padam Singh v. State of Uttar Pradesh), the Honourable Supreme Court has ruled thus:

It is too well settled that when the prosecution does not explain the injury sustained by the accused at about the time of the occurrence or in the course of occurrence, the Court can draw the inference that the prosecution has suppressed the genesis and origin of the occurrence and has thus, not presented the true version. It is also well settled that where the evidence consists of interested or inimical witnesses, then non-explanation of the injury on the accused by the prosecution assumes greater importance.

In Rathinam @ Rathinasamy and Ors. v. The State Rep. by the Inspector of Police, Virudhunagar 2008 (2) C.L.T. 22, it has been observed as follows:

From the very evidence available through the investigator, it could be seen that both the crime numbers namely 20/97 and 21/97, a part and parcel of the same transaction. If that be so, the law would mandate that the prosecution must place all the material fact before the Court in order to find out the truth or otherwise of the respective contentions. So long as the material papers and records pertaining to Crime No. 21/97 are not produced before the Court, the Court cannot find out even the genesis of the occurrence. Further, when four of the accused were also sustained injuries and they were sent for medical examination. Pursuant to the registration of Crime No. 21/97 which is part and parcel of the transaction in question, the prosecution should have produced all the necessary facts. It is pertinent to note, not even the FIR, statements recorded, would certificates, final report or any one of the material pertained to Crime No. 21/97 was placed before the Court. When the lower Court has thoroughly failed to consider this aspect of the matter in the considered opinion of the Court so long as all the materials were not placed before the Court, the Court cannot find out the truth or otherwise of the prosecution case to adumbrate justice, in accordance with law, and hence the prosecution has miserably failed to produce those documents and suppressed them, by which the prosecution case cannot be accepted.

The case laws referred to above are directly applicable to the facts and circumstances of the case on hand. The prosecution has not come out with clean hands and presented the full facts before the Court. It is unfortunate that the Investigating Officer did not take any effort in receiving the wound certificate issued for the accused and marking the same before the trial Court. The Medical Officer, who treated the accused, was not examined before the trial court. On a perusal of the graphic narration of the facts made in the complaint lodged by A.2 and taking note of the aspect that the injuries sustained by the accused were not explained, we are of the view that the occurrence would not have taken place in the manner as put forth by the prosecution. The investigation in both the cases should have been taken up in the manner known to law, but, it is unfortunate that the injuries sustained by the accused were not explained and vital facts were suppressed and withheld by the prosecution. The genesis and origin of the prosecution case itself is quite doubtful. Failure/omission on the part of the prosecution to explain the injuries on the person of the accused would assume much importance in a case of this nature where the evidence consists of interested or inimical witnesses; therefore, in the light of the above discussion and the reasons adverted to by us, we hold that the appellants 1 to 3/A.1 to A.3 are entitled to benefit of doubt and accordingly, the order of conviction and sentence passed by the trial Court as against these accused are set aside and they are acquitted. Bail bonds executed by them shall stand cancelled. Fine amount, if any, paid by them shall be refunded forthwith.

Criminal Appeal is allowed accordingly.