Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
14. 08.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.S.RAVI CRL.A(MD).No.250 of 2013 T.Settu : Appellant Vs. 1.The State, rep by The Inspector of Police, Siruganur Police Station, Tiruchirappalli District, [Crime No.115 of 2010].. 2.G.Dharmaraj 3.G.Duraisamy 4.Pattu : Respondents PRAYER Appeal is filed under Section 374 of the Code of Criminal Procedure against the Judgment and conviction dated 27.12.2012 made in S.C.No.204 of 2010, on the file of the learned First Additional District Judge [PCR]., Trichirappalli, and punish the accused/respondents 2 to 4 herein in accordance with law. !For Appellant : Mr.A.Thiruvaidumar ^For Respondent : Mr.C.Ramar Additional Public Prosecutor :JUDGMENT
[JUDGMENT
of the Court was delivered by S.NAGAMUTHU, J]. This is an appeal against acquittal filed by the de facto complainant/victim. The respondents 2 to 4 are the accused Nos.1,2 and 4 in S.C.No.204 of 2010, on the file of the learned First Additional District Judge [PCR]., Trichirappalli. The first respondent filed final report upon which the Trial Court framed as many as six charges. The first charge was against the first accused under Section 307 of the Indian Penal Code; the second charge was against the first accused under Section 302 of the Indian Penal Code; the third charge was against the second accused under Section 307 of the Indian Penal Code; the fourth charge was against the second accused under Section 307 of the Indian Penal Code; the fifth charge was against the accused Nos.2 to 4 under Section 302 r/w Section 34 of the Indian Penal Code and the sixth charge was against the fourth accused under Section 307 r/w Section 34 of the Indian Penal Code. By Judgment dated 27.12.2012, the Trial Court has acquitted the accused from all the charges. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal. The State has not preferred any appeal.
2. The case of the prosecution, in brief, is as follows:- The appellant/PW-1 is a resident of East Street in Konalai Village in Manachanallur Taluk, Trichirappalli District. The deceased, in this case, was one Mr.Mahendran. PW-1 is the elder brother of the deceased - Mahendran. PW-2 is the younger brother of the deceased. PW-3 is the nephew of the deceased. PW-4 is the wife of PW-1. The deceased and his family members, mentioned above, were all living together. The accused also belongs to the same village. They are all the sons of one Mr.Ganesan. Yet another son of Mr.Ganesan, by name Mr.Pitchai, died even before the commencement of the trial, though he was one of the accused in the case. Therefore, the accused Nos.1,2 and 4 alone faced the trial. 2.1. Between the family of the deceased and that of the deceased, there was a long standing dispute in respect of an ancestral property. During the year 2010, the appellant had started constructing a new house on his ancestral property, after demolishing the old house. As an interim measure, he had shifted his family to a hut situated in front of his old house. The first accused and his family members used to throw garbage just by the side of the said hut, where the appellant was residing. This was not to the liking of the prosecution party. On 20.04.2010, at about 07.30 PM, PW-1 to PW-4 were sitting just in front of the house of the appellant and they were talking to each other. At that time, the first accused threw garbage just by the side of the hut. The appellant questioned the same. This resulted in a quarrel. The accused Nos.2 to 4 joined hands and challenged that they would throw the garbage by the side of the hut of PW-1 and he could do whatever was possible by him. The accused party also told him as to what was his objection for the accused throwing the garbage in their lands. When the said quarrel was in progress, the accused 3 and 4 entered into their house and returned back with knives. They gave the knives to the accused Nos.1 and 2. 2.2. On receiving the knives, the first accused stabbed PW-1 on his stomach, in an attempt to kill him, punishable under Section 307 of the Indian Penal Code. The deceased - Mahendran tried to rescue PW-1. The first accused stabbed him on the right side of the chest and on the right side of the hip. He fell down, on receiving these two injuries. PW-2 also tried to rescue the injured. The second accused stabbed him on the left side of the stomach in an attempt to kill him punishable under Section 307 of the Indian Penal Code. Then, the second accused stabbed PW-3 on his left side of the hip and left forearm. Soon thereafter the occurrence, all the accused fled away from the scene of occurrence. PW-1 to PW-3, including the deceased, were taken to the Government Hospital, Trichirappalli, by means of 108 Ambulance Service. PW-13, Dr.Mahalakshmi, an Assistant Surgeon, attached to the Government Hospital at Trichirapplli, examined PW-1 at 08.45 PM. He noticed the following injuries:- "1. A lacerated wound 7 X1CM over left hypochondria muscle depth.
2. A lacerated wound exposing the peritoneum seen over the left side of upper abdomen". PW-13 admitted him as an in-patient and a surgery was conducted on him and he was discharged from the hospital, on 01.05.2010. EX-P11 is the wound certificate. 2.3. On the same day, at 08.50 PM, PW-13 examined PW-3 and found the following injuries:- "An incised wound measuring 4 X1X Pleural cavity depth over left side of chest in the lower aspect of outer aspect of chest present. An incised wound measuring 3 X1CM muscle depth over inner aspect of left elbow". According to PW-13, the said injuries are grievous in nature. EX-P12 is the wound certificate issued by her. 2.4. Then, on the same day, PW-13 examined PW-2 and noticed the following injury:- "An incised wound with protruding omentum of size 2 X1CM over left hypochondrium present". EX-P13 is the wound certificate issued by her. A surgery was conducted on him and he was discharged from the hospital later on. According to PW-13, the said injuries are grievous in nature. 2.5. According to PW-13, the injuries found on all the four persons, including the deceased, would have been caused by the weapons, like knives. 2.6. On receiving intimation from the Hospital Authorities, on 20.04.2010, at 10.30 PM, PW-14 rushed to the Government Hospital and recorded the statement of PW-1, under EX-P1. On returning to the Police Station, at 02.00 PM, on 20.04.2010, he registered a case in Crime No.115 of 2010, under Sections 307 and 302 of the Indian Penal Code. EX-P1 is the complaint and EX- P15 is the First Information Report. Then, he forwarded both the documents and handed over the case diary to PW-15, the then Inspector of Police, attached to the Sirukanoor Police Station. 2.7. Taking up the case for investigation, on 21.04.2010, at 06.00 PM, PW-15 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence. He also recovered bloodstained earth and sample earth from the place of occurrence under a mahazer. Then, he examined PW-1 to PW-5 and recorded their statements. He also conducted inquest on the body of the deceased and prepared an inquest report. EX-P17 is the inquest report. Then, he forwarded the dead body for postmortem. 2.8. PW-12, Dr.A.Ravikumar, conducted autopsy on the body of the deceased, on 21.04.2010, at 11.35 AM. He found the following injuries:- "1. An oblique stab wound, measuring 2 X1CM X cavity deep, on the front of right side of chest, 3 CM away from the midline. O/E. The edges are clean cut, one end is sharp, the other end is blunt. On further dissection cut fracture of 5th rib and pleura cut. The inter costal muscles, blood vessels and nerves are found cut. A stab wound, 2 CM X05 CM X1CM deep, on the middle lobe of right lung present.
2. An oblique stab wound, on the outer aspect of left side of chest, 2 CM X1CM X cavity deep. O/E. The edges are clean cut. One end is sharp, the other end is blunt. O/D. The inter costal muscles, blood vessels and nerves are found cut and pleura cut. A through and through stab wound, 2 CM X1CM, in the upper lobe of left lung present. A stab wound, on the back of pericardium, 2 X1CM present. A stab wound, on the back of heart, 1 X05 CM X cavity deep present". 2.9. According to him, the injuries noted on the body of the deceased would have been caused by a weapon, like knife. He forwarded the viscera for chemical analysis. The chemical analysis report revealed that there was no poison detected in the visceral organs. Finally, he gave opinion that the death was due to shock and hemorrhage due to the cumulative effect of all the injuries. 2.10. Continuing the investigation, PW-15 recovered the bloodstained cloth materials of PW-1 to PW-3 in the hospital in the presence of the witnesses. On 23.04.2010, at 06.00 AM, he arrested the accused near Konalai Village. On such arrest, the first accused gave voluntary confession, which was reduced into writing, followed by the second accused, who gave a separate confession. In the said confession made by the accused Nos.1 and 2, it was disclosed that MO-2 and MO-3 had been hidden by them near their house. In pursuance of the same, they took PW-15 and the witnesses to the said place and from the garbage, they took out MO-2 and MO-3 and produced the same. They were all recovered in the presence of the witnesses. PW-15, then, forwarded the accused to the Court for judicial remand. He handed over all the material objects to the Court and then made a request to the learned Judicial Magistrate to forward the material objects for chemical analysis. According to the report of the chemical analysis, a human blood was noticed on MO-2 and MO-3 and also on the dress materials. But, the result of the grouping test conducted on the bloodstains of the cloth was inconclusive. PW-15 collected all these materials, examined the doctor and on completing the investigation, he laid charge sheet against all the four accused. 2.11. Even before the framing of the charges, Mr.G.Pitchai, S/o.Ganesan, died and therefore, charges were framed against rest of the accused Nos.1, 2 and 4. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, the prosecution examined as many as 15 witnesses and 22 documents were exhibited, besides 9 Material Objects. Out of the said 15 witnesses, PW-1 to PW-3 are the injured eye-witnesses. PW-4 is an eye witness to the occurrence. She is the brother's wife of the deceased. All these four witnesses have vividly spoken about the entire occurrence. PW- 5 is the wife of the deceased. She is also an eye-witness to the occurrence, though not injured. She has also spoken about the entire occurrence. PW-6 is the sister of the deceased. She also claims to have seen the occurrence. She has also narrated about the entire occurrence. PW-7 is the son of PW-1. He has also claimed that he witnessed the occurrence. He has also spoken about the entire occurrence. PW-8 is not an eye-witness and he has not stated anything in favour of the prosecution. PW-9 has spoken about the preparation of the Observation Mahazer and the recovery of the bloodstained earth and sample earth from the place of occurrence in the presence of witness under a mahazer. PW-10 has spoken about the same facts. PW-11 is the Village Assistant of Konalai Village. He has spoken about the arrest of all the four accused and the consequential recoveries of MO-2 and MO-3. 2.12. PW-12, Dr.A.Ravikumar has spoken about the postmortem conducted on the deceased and his final opinion regarding the cause of death. PW-13, Dr.Mahalakshmi, who treated PW-1 to PW-3 and declared the deceased dead. PW- 14, the then Sub-Inspector of Police, who has stated that on receiving intimation from the Hospital Authorities, he went to the Government Hospital and returned to the Police Station and registered the case at 10.30 PM, on 20.04.2010. PW-15 has spoken about the investigation done by him.
3. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. According to them, the deceased party were the aggressors and they attacked the accused Nos.1 and 2 and the wife of the third accused, by name Mrs.Usha Rani, with knife. In the very same occurrence, due to the attack with knife by the prosecution party, the accused Nos.1 sustained a lacerated wound measuring 4 X2X bone depth over right temporal region of scalp. The second accused also sustained injuries as follows:- "1. An incised wound measuring 3 X1CM muscle depth over right gluteal region.
2. An incised wound measuring 1 X12 CM over left side of back".
4. Mrs.Usha Rani, the wife of one the family members of the accused, had sustained the following injuries:- "A contusion measuring 2 X3CM over medial aspect of left knee. An abrasion measuring 2 X12 CM on the left leg".
5. According to the accused, in respect of the very same occurrence, on a complaint made by the accused, a case in Crime No.116 of 2010 was registered against the prosecution party. But, the said case was not properly investigated and the injuries sustained by them were not properly explained. Having considered all the above materials, the Trial Court acquitted the accused Nos.1, 2 and 4. That is how, the de facto complainant/victim is now before this Court with this Criminal Appeal.
6. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the first respondent, the learned counsel for the respondents 2 to 4 and also perused the records carefully.
7. The learned counsel for the appellant would submit that from the narration of the facts by the prosecution, it could be culled out that the accused party were the aggressors and therefore, the Lower Court ought to have convicted the accused. The learned counsel would further submit that it is true that in the very same occurrence, the accused Nos.1 and 2 and the wife of the third accused had sustained injuries and of course, it is also true that these injuries have not been explained away by the prosecution, but, according to the learned counsel, on that score, the accused ought not to have been acquitted. The learned counsel would further submit that the counter case was investigated properly, but the records relating to the counter case were not produced by the police before the Trial Court. The learned counsel would further submit that for the fault on the part of the Investigating Officer, the victims of the crimes cannot be denied justice. The records are very much available and the Trial Court ought to have summoned those documents and proved the same in evidence. Thus, according to the learned counsel, the trial was not conducted properly and the same has caused prejudice to the prosecution party, who are the victims at the hands of the accused. At any rate, according to the learned counsel, for the short comings on the part of the Investigating Officer, the victims cannot be denied justice and therefore, the acquittal of the accused has to be set aside.
8. The learned counsel for the accused would submit that the prosecution had not come forward with true version of the occurrence. The very fact that PW-1 to PW-3, who are the injured eye-witnesses and 5 to 7, who are the family members of PW-1, have not stated anything about the injuries sustained by three persons, namely, accused Nos.1, 2 and the wife of the third accused, which would go to show that they are not reliable, as they are suppressing an important part of the occurrence. The learned counsel would further submit that no independent witness was examined, though the occurrence was in a busy residential locality. The learned counsel would further submit that the First Information Report in the counter case and the materials collected during the investigation were not produced before the Trial Court as required in law. Thus, according to the learned counsel, the Trial Court has acquitted the accused rightly which does not require any interference at the hands of this Court.
9. We have considered the above submissions.
10. Admittedly, in one and the very same occurrence, on the side of the prosecution party, four persons, namely, PW-1 to PW-3 and the deceased sustained injuries. Admittedly, in the course of the same transaction and in the same occurrence, on the side of the accused, three persons, namely, the accused Nos.1 and 2 and the wife of the third accused had also sustained injuries. A perusal of EX-D1 to EX-D3 would go to show that the injuries sustained by the accused party were also serious injuries on vital parts. When the prosecution witnesses, who belong to the same village, have spoken about the each and every overt act of the accused, thereby explaining every injury sustained by the prosecution party, are expected to speak in the same vigour to the injuries sustained by the accused party also. But, they have not stated anything about the injuries found on the accused party and the injuries on the wife of the third accused. This would only go to give an impression that PW-1 to PW-5 are not reliable, as they are suppressing an important part of the occurrence and they have not come forward with true version of the occurrence involving the attack made by the accused party also.
11. In this regard, we may refer to the Judgment of the Hon'ble Supreme Court in Lakshmi Singh and others, Vs. State of Bihar, reported in 1976 SCC [Crl]. 671, wherein, the Hon'ble Supreme Court, 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."
12. Applying the said principles to the facts of the present case, we are bound to hold that PW-1 to PW-7 have not come forward with the true version of the occurrence, involving injuries on the accused Nos.1 and 2 and the injuries on the wife of the third accused.
13. Now, turning to the investigation, there is a counter case registered in Crime No.116 of 2010. But, unfortunately, the Investigating Officer has not stated anything about the registration of the said case and the investigation while he was under chief examination. During cross- examination, PW-14 has disowned any knowledge about the Crime No.116 of 2010. PW-15, the Investigating Officer also had not stated anything about the case in Crime No.116 of 2010. The chief-examination proceeds as though there was no such counter case at all registered against the prosecution party. But, during cross-examination, he has admitted that the diary relating to the case in Crime No.116 of 2010 was handed over to him by the Sub-Inspector of Police. He has further admitted that in connection with the said case, PW-1 to PW-3 were arrested. In the said case, there were four persons as the accused. But, he has not stated as to what had happened to the said counter case. The records relating to the counter case, the First Information Report and all the other materials collected during the investigation were not placed before the Court. Thus, the prosecution has completely suppressed the version of the accused.
14. The learned counsel for the appellant would submit that for the flaw committed by the Investigating Officer, the victims cannot be denied justice. For this proposition, the learned counsel relies on the Judgment of the Hon'ble Supreme Court in Onkarnath Singh Vs. The State of UP, reported in 1974 SCC [Crl]. 884, wherein in Paragraph No.35, it has been held as follows:-
"5. The question is, what is the effect of this non-explanation of the injuries of Parasnath?. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. [see Bankey Lal Vs. State of UP [supra]. and Bhagwan Tana Patil Vs. State of Maharashtra].".
15. But, the principles stated in the above said Judgment of the Hon'ble Supreme Court are not applicable to the facts of the present case, as factually, the case on hand is distinguishable. In the said Judgment, the question was whether the non-explanation of the injuries would affect the case of the prosecution. The answer to the said question was - it depends upon the circumstances of each case.
16. In the case on hand, in our considered view, by suppressing the materials collected during the investigation of the case in Crime No.116 of 2010 and by the failure of PW-1 to PW-7 to explain the injuries sustained on the accused, the prosecution has failed to discharge its burden that the accused party are the aggressors.
17. In a criminal trial, if it is bound that the true version of the entire occurrence is not placed before the Court, it is too difficult to rely on the version of the prosecution. Applying the said principle of law to the facts of the present case, the Trial Court has rightly acquitted the accused on the above grounds.
18. The narration of the events by PW-1 to PW-7 would go to show that the occurrence was not pre-meditated one. The first accused in the usual course, throw the garbage by the side of the house of the appellant, which resulted in a quarrel. It was only during the course of the said quarrel, it is alleged that the accused party attacked the deceased party. But, the case of the accused is that in the said quarrel, the deceased party attacked them first. The prosecution has, thus, failed to prove that the accused party were the aggressors. The Trial Court has rightly acquitted the accused, in which, we do not find any reason to interfere with the same.
19. At this juncture, we have to stated that it is too well settled that the presumption of innocence is implicit in the fair procedure, as enshrined in Article 21 of the Constitution of India and such presumption of innocence is further strengthened and even doubled by the acquittal recorded by the Trial Court. In order to succeed in an appeal against acquittal, the prosecution should make out a very strong case, showing perversity in the acquittal recorded by the Trial Court. Otherwise, the presumption of innocence, which gets doubled by the acquittal of the accused recorded by the Trial Court, will not get rebutted. Apart from the above, assuming that the view taken by the Trial Court and the view projected by the appellant herein are equally possibly, when there are two views equally possible, this Court cannot substitute its view by accepting the view projected by the prosecution in the place of the view taken by the Trial Court.
20. In view of all the above, we do not find any merit in the Criminal. Therefore, this Criminal Appeal is dismissed and the acquittal of the accused recorded by the Trial Court is confirmed. To 1.The Inspector of Police, Siruganur Police Station, Tiruchirappalli District. 2.The First Additional District Judge [PCR]., Trichirappalli. 3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai..