Jeyapandi and Others Vs. The State rep. by the Inspector of Police, Madurai District

(Common Prayer:Criminal Appeals filed under Section 374 of Cr.P.C. against the conviction and sentence, dated 19.07.2012, made in S.C.No.287 of 2010, by the learned Vth Additional Sessions Judge, Madurai.)

Common Judgment

S. Nagamuthu, J.

1. The appellants in Crl.A.(MD).No.156 of 2012 are the accused Nos.1 to 5, the appellants in Crl.A.(MD).No.157 of 2012 are the accused Nos.6 to 13 and the appellants in Crl.A.(MD).No.159 of 2012 are the accused Nos.14 to 16 in S.C.No.287 of 2010 on the file of the Vth Additional Sessions Judge, Madurai. The trial Court framed as many as five charges, as detailed below.

2. The case of the prosecution, in brief, is as follows:-

(a) The deceased in this case was one Mr.Chinna Thevar. He was residing at Melaperumalpatti Village in Madurai District. PWs.1 and 2 are the sons of the deceased. PWs.3 and 4 are the villagers. The accused also belonged to the same village. The accused Nos.1 to 5 are brothers. A6 and A7 are the brothers-in-law of the accused A1 to A5. A8 is the son of A3. A9 to A12 are the paternal uncle of A1 to A5. A13 is the son of A12. A14 is the wife of A1. A15 is the wife of A12. A16 is the wife of A9. Thus, all those accused more or less belong to the same family.

(b) On account of the local Panchayat Board Election, there was a long standing enmity between the deceased and his family members, and the accused. The father of A1 had entered into a contract with the Panchayat to desilt a channel leading to a lake in the village. It is alleged that to execute the said work, A1, by using a JCB machine, was digging. According to the prosecution, the channel was running on the land owned by the deceased and his family members. The deceased had given a complaint to the Tahsildar and the Revenue Divisional Officer objecting to the same being done by the accused party. This is stated to be the motive between the two groups.

(c) On 08.02.2007 at about 9.00 p.m., according to PW1, he along with PW2 and the deceased were in their field. At that time, all the 16 accused and others came to the spot. All of them were armed with weapons like crowbar, steel rod, wooden log, etc. On reaching the place of occurrence, it is alleged that the first accused shouted at the rest of the accused that the deceased and PWs.1 and 2 were the persons to be killed and directed them to kill them. Immediately, A2 to A5 attacked the deceased with crowbar. When PW1 intervened, A2 to A5 attacked him with crowbar on his head and other parts of the body resulting in simple injuries. When PW2 intervened, A5 to A13 attacked PW2 with steel rod on various parts of the body. Then, A6 and A14 to A16 attacked the deceased and PW2 with wooden logs. The deceased fell down with serious injuries. PWs.1 and 2 also sustained injuries. Then, all the 16 accused fled away from the scene of occurrence. Then, PWs.1, 2 and the deceased were taken to the Government Rajaji Hospital, Madurai.

(d) PW14 - Dr.Amalraj, attached to the Government Rajaji Hospital, Madurai examined the deceased at 11.00 p.m. on 08.02.2007. He told the doctor that he was attacked by 25 known persons with aruval, sticks, crowbar, wooden logs and hands. PW14 found the following injuries on him:

1. Lacerated wound 5 cm x 1 cm x 0.5 cm. over occipital region.

2. Pain and (Nc) over right hip ?

Ex.P16 is the Accident Register. On the same day at 11.05 p.m., he examined PW2 “ Seeralan. He also told that he was attacked by 25 known persons with the same weapons. PW14 found the following injuries on him:

1. Lacerated wound 5 cm x 1 cm x 0.5 cm right temporal region of head.

2. A lacerated wound 3 cm x 1 cm x 0.5 cm right cheek.

3. Pain and swelling left shoulder.

4. Pain swelling and restricted movement left thigh. ?

Ex.P17 is the Accident Register. On 09.02.2007 at 7.45 p.m., he examined PW1. He also said that he was attacked by 25 known persons and he found the following injuries on him:

1. Lacerated wound 4 cm x 0.5 cm x 0.5 cm right parietal region.

2. Abrasion right forearm. ?

Ex.P18 is the accident register. Then, he gave intimation to the Police regarding the same.

(e) On receiving intimation from the hospital, one Mr.Paramasivam, the then Sub Inspector of Police, Thirumangalam Police Station, rushed to the hospital and recorded the statement of PW1. On returning to the Police Station, he registered a case in Crime No.17 of 2007 under Sections, 147, 148, 447, 323, 324, 506(ii) and 307 IPC. Ex.P19 is the FIR. The case was registered at 12.30 p.m. on 09.02.2007. Mr.Paramasivam had forwarded the FIR and the complaint to the Court which also in turn received by the learned Magistrate at 6.00 p.m. Then, he handed over the Case Diary to PW15 - the Inspector of Police for investigation.

(f) Taking up the case for investigation, PW15 proceeded to the place of occurrence and prepared an observation mahazar in the presence of PW5 and another witness. He also prepared a rough sketch showing the place of occurrence. Then, he examined PWs.1 and 2 and recorded their statements in the hospital. While so, on 10.02.2007 at 1.00 a.m. the deceased died in the hospital succumbing to the injuries. On receiving the death intimation at 2.30 a.m. on 10.02.2007, PW15 altered the case into one under Section 302 IPC and forwarded the alteration report Ex.P21 to the Court. On the same day, at 7.30 a.m. he conducted inquest on the body of the deceased and forwarded the body for postmortem.

(g) PW13 - Dr.Saravanan conducted autopsy on the body of the deceased on 10.02.2007 at 11.30 a.m. He found the following injuries:

The following antemortem injuries are noted on the body:

(a)Lacerated injury 3 x 1 x 1 cms right parietal region.

(b)Abrasion of 3 x 2 cms right forearm.

On dissection of scalp, skull and dura;

Scalp contusion 10 x 6 cms left parietal region of scalp.

Depressed fracture 10 x 6 cms left temporo parietal skull bone, extending to both parieto occipital bone. Diffused subdural haemorrhage and sub arachnoid haemorrhage present over both cerebral hemispheres. Blood stained cerebrospinal fluid present and increased in volume. Laceration of brain 6 x 4 x 2 cms right occipital lobe of brain. ?

Ex.P14 is the Postmortem Certificate. He forwarded the viscera for chemical examination. The report revealed that there was no poison. Therefore, he gave his final opinion under Ex.P15 to the effect that the deceased would appear to have died of cranio cerebral injuries.

(h) PW15, during the course of investigation, arrested A4 and A5 in the presence of PW6 and another witness. On such arrest, A4 gave a voluntary confession, in which he disclosed the place where he had hidden the crowbar and steel rod. In pursuance of the same, he took the police and witnesses to Melaperumalpatti Odai and took out MO.1 series from the hide out. PW15 recovered the same under a mahazar. On the same day, at Vikkiramangalam Bus-stand, he arrested A10, A9, A11, A5 and A13 in the presence of the same witnesses. On such arrest, A10 gave a voluntary confession in which he disclosed the place where he had hidden the steel rods. In pursuance of the same, he produced steel rods which were all recovered under a mahazar (Vide MO.2 series). Then, he forwarded the accused to the Court for judicial remand and handed over the material objects also. On 11.02.2007, at 2.00 p.m. he arrested A1, A6, A2, A3 and A7 and forwarded them to the Court for judicial remand. Then, he handed over the Case Diary to PW16 for further investigation.

(i) PW16 collected the medical records and gave a requisition to the Court to forward the material objects for chemical examination. The report revealed that in the dhoti, towel and another dhoti human blood was found. On completing the investigation, he laid charge sheet against the accused.

(j) Based on the above 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 16 witnesses were examined and 27 documents and 6 material objects were marked.

(k) Out of the said witnesses, PWs.1 to 4 are the eyewitnesses to the occurrence. More particularly, PWs.1 and 2 are the injured eyewitnesses. They have vividly spoken about the occurrence. PW5 has spoken about the preparation of observation mahazar and rough sketch in the place of occurrence. PW6 and PW7 have turned hostile and they have not supported the case of the prosecution in any manner. PW8 is the Scientific Assistant, who has stated that there were bloodstains on the material objects. PW9 is the constable, who carried the dead body to the hospital for postmortem. PW10 has spoken about the fact that he handed over the FIR to the learned Magistrate. PW11 has turned hostile and he has not supported the case of the prosecution in any manner. PW12 is the doctor, who declared the deceased died and he has spoken about the same. PW13 - Dr.Saravanan has spoken about the autopsy conducted and his final opinion regarding the cause of death of the deceased. PW14 has spoken about the treatment given to PWs.1 and 2 and the deceased at the Government Rajaji Hospital, Madurai. PW15 and PW16 have spoken about the investigation done by them.

(l) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. However, they did not choose to examine any witness nor to mark any document on their side. Their defence was that the deceased party was the aggressor, in which the first accused was attacked. The other accused were not present at the time of occurrence.

(m) Having considered all the above materials, the trial Court convicted all the 16 accused under all the charges framed against them and accordingly, punished them. That is how they are before this Court with these appeals.

3. We have heard the learned senior counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully.

4. The prosecution in this case relies mainly on the eyewitness account of PWs.1 to 4. Admittedly, PWs.1 and 2 are the injured eyewitnesses and therefore, their presence cannot be doubted. But, the same would not give automatically a guarantee to the trustfulness of the evidence let in by them against the accused. Though, in this case, as pointed out by the learned senior counsel appearing for the appellants, at the earliest opportunity when the deceased and PWs.1 and 2 were taken to the hospital to the Doctor (PW14), they had stated that they were attacked by 25 persons with aruval, crowbar, steel rod, wooden logs and hands, there are only 16 accused before the Court. Though PWs.1 and 2 were called upon to explain as to why they stated at the earliest point of time that they were attacked by 25 persons, whereas, according to their present version, there was only 16 accused in the occurrence, they did not offer any explanation. Thus, in our considered view, this creates enormous doubts in the case of the prosecution.

5. The occurrence is, admittedly, in a partisan village, where there were two groups operating on account of enmity due to local panchayat election. The deceased and his family members were in one group, whereas the accused and their family members and their supporters were in the opposing group. In respect of desilting of the channel, there was some dispute between these two groups. It is in the evidence of PW1 that the father of the accused 1 to 5 had entered into a contract with the Government to deepen the channel in the village. But, according to the deceased and his family members, the channel runs in their private land over which the Government had no right. It is their further case that the deceased had given an objection to the Tahilsdar as well as to the Revenue Divisional Officer regarding the same. On account of these, there was a motive.

6. Now, it is in the evidence of the prosecution that the accused party had engaged a JCB machine to deepen the channel. This was objected to by the prosecution party. The work was stopped. Thereafter, it is stated that at 9.00 p.m. the alleged occurrence had taken place. In the same occurrence, the first accused had also sustained injuries. Regarding the same, a case has been registered in Crime No.16 of 2007 against the deceased and PWs.1 and 2 and others. That case was not investigated by the same investigating officer. That was investigated by a different Inspector of Police. PW15 and PW16 did not take any steps to take over the investigation of the case in Crime No.16 of 2007 also. Instead, the case in Crime No.16 of 2007 was investigated separately and the charge sheet was also laid against the prosecution party and the same is pending. Thus, from the very fact that the final report was filed against the prosecution party and cognizance has been taken by the learned Magistrate, it is crystal clear that there was a prima facie case against the prosecution party.

7. The allegation in the case in Crime No.16 of 2007 (as found in the evidence available on record) is that the prosecution party, on account of the above dispute, had attacked the first accused. In the same occurrence, according to the accused, the deceased and PWs.1 and 2 had also sustained injuries. But, the learned Additional Public Prosecutor would submit that the cases in Crime Nos.16 of 2007 and 17 of 2007 were two different occurrences. He would point out that the occurrence relating to the case in Crime No.16 of 2007 was near the house, whereas the occurrence in the present case was in the field. Though attractive, we do not find any force in this argument. We had the benefit of going through the Case Diary relating to the case in Crime No.16 of 2007. There are materials to show that both the occurrence had happened at one and the same place, that is near the field.

8. At this juncture, the learned Additional Public Prosecutor would submit that the alleged occurrence in connection with the case in Crime No.16 of 2007 was at 9.30 p.m., whereas the alleged occurrence in the present case was at 9.00 p.m. and thus, there were two different occurrences. This explanation does also not persuaded us. Had it been true that there were two different occurrences at two different points of time and at two different places, then, the injured in the earlier occurrence would not have been the assailants in the subsequent occurrence. But, the final report filed in the earlier case in Crime No.16 of 2007 would go to show that the injured in the earlier occurrence also participated in the subsequent occurrence and attacked. But, it is not at all the case of the prosecution that after sustaining the injuries in the earlier occurrence at 9.00 p.m. the injured remained there, participated in the subsequent occurrence at 9.30 p.m. and then, went to the hospital. Then, it is the positive case of the prosecution that as soon as the occurrence, the deceased and PWs.1 and 2 were taken to the hospital. When that be so, they would not have been present in the occurrence, which, according to the prosecution, had taken place at 9.30 p.m. But, their own record, i.e., the FIR in Crime No.16 of 2007, would go to show that PWs.1 and 2 were present in the occurrence, which is the foundation for the case in Crime No.16 of 2007. Therefore, it is crystal clear that both the occurrence would have been taken place at one and the same place and in the course of the same transaction. Therefore, we have got no doubt in concluding that both the cases are case and case in counter.

9. Now, in a case of this nature, where there was a clash between two groups, it is for the prosecution to make a thorough enquiry in both the cases and place the fact before the Court leaving it open for the Court to appreciate the evidence and to find out the truth. It is only for the Court to find out as to who was the aggressor and anybody had committed any crime. The prosecution cannot have the choice of suppressing one part of the occurrence and manipulate the other so as to show that there were two occurrences. In this case, the records have been so manipulated to show that there were two different occurrences, though the fact remains that there was only one occurrence and both the parties sustained injuries in the same. Thus, in our considered view, the prosecution has not come forward with true version of the occurrence. Similarly, the injuries sustained by the first accused has not been explained away to the satisfaction of the Court. The Hon'ble Supreme Court in Lakshmi Singh and others, Vs. State of Bihar, reported in 1976 SCC [Crl] 671, in an identical situation, has held that it is the bounden duty of the prosecution to explain the injuries sustained by the accused party also. It is useful to extract the relevant portion of the said Judgment, which reads as follows:-

"Where the prosecution fails to explain the injuries on the accused, two results follow;

(i) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.

It was further observed that;

"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 alteration is a very important circumstance from which the Court can draw the following inferences;

(i). 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."

10. Applying these principles to the facts of the case, if we analyse the case, it is crystal clear that by suppressing the material collected during the course of investigation in Crime No.16 of 2007 and by failing to explain the injury sustained to A1, the prosecution has failed to come forward with clean hands. What is placed before the Court is not an absolute truth. It may be that there is some truth in the facts placed before the Court, but not all the truths. Above all, as we have narrated, these 16 accused belong to the same family. Many of them are women folk. An attempt has been made to rope in the entire family numbering 16 and to wipe out the entire family by implicating them in the case. In our considered view, going by the number of injuries sustained by PWs.1 and 2 and the deceased, surely, 16 people would not have participated in the occurrence at all.

11. Above all, at the earliest point of time, PWs.1 and 2 had told the doctor that they were attacked by 25 known persons. If that earliest version is true, it should be explained to the Court as to why the number of participants in the occurrence has got reduced to 16. It is not explained to the Court as to why the others have been omitted, if really PWs.1 and 2 and the deceased had been attacked by 25 known persons. It appears that PWs.1 and 2 had made such a statement giving large number of persons as accused, so as to include anybody as accused, subsequently, at their whims and fancies. We are sure that going by the attitude of PWs.1 and 2, they render themselves unbelievable. PWs.3 and 4, though claimed to be independent witnesses, it is not, in fact, so. They belong to the group of the prosecution party. As we have already pointed out, the village was factious and there was strong enmity between the prosecution party and the accused party. In such background, the likelihood of false implication cannot be ruled out. Unless, the participation of each accused is so thoroughly proved by the prosecution, it is not possible to sustain the conviction. Here, in this case, as we have already pointed out we are sure that the prosecution party has made an attempt to rope in the entire family members of the accused party numbering 16 so as to wipe out the entire family by implicating them in the case.

12. Considering all the above fact, we are of the view that there are lot of doubts in the case of the prosecution, which have not been obviated by the prosecution at all. The accused are, therefore, entitled for the benefit arising out of such doubts. In such view of the matter, we hold that the prosecution has failed to prove the case beyond all reasonable doubts against the accused and therefore, they are entitled for acquittal.

13. In the result, these appeals are allowed and the conviction and sentence imposed by the trial Court in S.C.No.287 of 2010 against all the appellants/accused is set aside and they are acquitted. The bail bond, if any, executed by them shall stand terminated. The fine amount, if any, paid by them shall be ordered to be refunded.