Madras High Court
Selvaraj vs State on 5 August, 2021
Crl.A(MD)No.100/2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A(MD)No.100 of 2016
1.Selvaraj
2.Kumaresan : Appellants/Accused 3 & 5
Vs.
State, rep. by
Inspector of Police,
Vattathikottai Police Station,
Thanjavur District.
(Crime No.122/2013) : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to set aside the conviction and sentence, dated
11.03.2016 in S.S.C.No.43 of 2014 on the file of the I Additional District
Sessions Judge, (P.C.R), Thanjavur and acquit the appellants.
For appellants : Mr.M.Karunanithi
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate (Crl.side)
1/16
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Crl.A(MD)No.100/2016
JUDGMENT
The present appeal is directed against the conviction and sentence,
dated 11.03.2016, made in Spl.S.C.No.43 of 2014, on the file of the
I Additional District Sessions Court, (P.C.R), Thanjavur.
2. The appellants are arrayed as accused Nos.3 & 5 in the above
case. The appellants along with 6 other accused stood charged for the
offences punishable under Sections 147, 148, 294(b), 324, 352, 354, 506(ii),
302 of IPC and Section 3(2)(V) of SC/ST (POA) Act, 1989. All the accused
denied the charges as false and opted for trial. Therefore, they were put on
trial on the charges.
3. After full-fledged trial, the learned I Additional District and
Sessions Judge (P.C.R.), Thanjavur, came to the conclusion that the
appellants 1 & 2 found guilty for the offences under Sections 326 and 324
of IPC, respectively and accordingly, the first appellant/third accused
Selvaraj was convicted and sentenced to undergo Rigorous Imprisonment
for 7 years and to pay a fine of Rs.5,000/- in default to undergo Simple
Imprisonment for 6 months. Similarly, the second appellant/fifth accused
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Kumaresan was convicted and sentenced to undergo Rigorous
Imprisonment for 2 years and to pay a fine of Rs.2,000/- in defaul,t to
undergo simple imprisonment for three months. Challenging the said
conviction and sentence, both the accused Nos.3 & 5 are before this Court,
by way of filing the present Criminal Appeal.
4. The relevant facts of the case, which gave rise to filing of this
appeal are necessary to be recapitulated for the disposal of this appeal:-
(i) Both the accused and the victims in the alleged occurrence are
the resident of Neiveli Vadapathi Village. Due to the land dispute, there
was a prior enmity between both parties. The accused Nos.1 & 2 are
belonged to Hindu Kallar community. The witnesses P.W.1-Karuppaiah,
P.W.3-Savithiri, the deceased and the accused Nos.3 to 8 are belonged to
Hindu Parayan community.
(ii) On 10.10.2013 around 06.00 p.m., when P.Ws.1 to 3 and the
deceased Sekar were doing tillage work at Seeniyaviduthi, all the accused
in this case, unlawfully assembled with deadly weapons viz., iron rod,
wooden log, Sickle and mud cutter came there and at the time of occurrence
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the accused Nos.1 & 2 abused the witnesses P.Ws.1, 3 and the deceased
with filthy language by citing their caste name, further Accused Nos.1 & 3
attacked the deceased Sekar with Iron rod on his left forehand and thereby
caused his death. While such a time, Accused Nos.2,4 and 5 in this case by
using the iron rod attacked one Karuppaiah and caused simple injuries.
Further, Accused Nos.3 & 5 attacked Padma with iron road on her left
forearm and there by the said Padma sustained simple injury. Apart from
that, in the said occurrence, the third accused attacked Savithiri with iron
rod on her left forehand and the sixth accused attacked her with wooden log
on her left leg, further, seventh accused with mud cutter and accused No.8
with sickle threatened her.
(iii) Immediately, after the said occurrence, the deceased Sekar
and other injured witnesses were hospitalised at Government Hospital,
Pattukottai and on receipt of intimation from the Hospital, P.W.14 Madhavi,
the Sub-Inspector of Police, visited the said hospital and recorded the
statement from deceased Sekar. On 11.10.2013 upon the statement given by
the deceased, she registered a case in Cr.No.122/2013 for the offences
punishable under Sections 147, 148, 294(b), 323, 324, 354 IPC. After
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registration of the case, on 12.10.2013 at about 17.00 hours, she herself took
up the investigation, visited the place of occurrence and in the presence of
witnesses P.W.6-Raman and one Mahalingam, she prepared an Observation
Mahazar under Ex.P2. She drawn the Rough Sketch under Ex.P23. She
examined the witnesses and recorded their statements. She altered the
Sections of law from 147, 148, 294(b), 323, 324, 354 of IPC to Sections
147, 148, 294(b), 323, 324, 354, 506(ii) of IPC under Ex.P.24. On
14.02.2013 around 11.00 hours near Sengkollai Bus Stand, she arrested the
fourth accused and remanded into judicial custody. Thereafter, she handed
over the case records to the Inspector of Police for further investigation.
iv) P.W.15-Thiru Ulaganathan, the then Inspector of Police,
Pappanadu Police Station, took up further investigation and visited the place
of occurrence. He examined the witnesses and recorded their statements.
He altered the section of law from under Sections 147, 148, 294(b), 323,
324, 354 and 506(ii) of IPC to Sections 147, 148, 294(b), 323, 324, 354 and
307 of IPC r/w Section 3(2)(v) SC/ST Act and submitted the alteration
report to the learned Judicial Magistrate, Pattukottai and thereafter, he
placed the entire case records to the Superintendent of Police, Thanjavur, to
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nominate the Investigation Officer. After getting an order of nomination
from the Superintendent of Police, P.W.17-Vivekanandan, the then Deputy
Superintendent of Police took up the investigation under Ex.P28 and
altered the sections from 147, 148, 294(b), 323, 324, 354, 560(ii) and 307 of
IPC to under Sections 147, 148, 294(b), 323, 324, 354, 506(ii) and 302 of
IPC r/w 3(2)(v) SC/ST (POA) Act. He visited the place of occurrence and
examined the witnesses and he conducted an inquest on the body of the
deceased Sekar and prepared Ex.P.29-Inquest Report. Thereafter, on
07.11.2013 around 05.30 p.m., he arrested the accused Karuppaiah in
Perambakudi Bus Stop. After made arrest, he recorded the disclosure
statement given by the said accused Karuppaiah in the presence of P.W.7-
Kamaraj and P.W.8-Mathiyalagan. In the disclosure statement, he had
admitted that he concealed the iron rod (M.O.1) behind his house, and after
reaching his house he handed over the same to the Investigating Officer and
the same was recovered by P.W.17 under the cover of Ex.P.31 Recovery
Mahazar. On 09.11.2013, P.W.17 arrested the third accused Selvaraj/1st
appellant at 10.00 a.m., in Pattukottai Bus Stop and on examination, he has
voluntarily gave confession statement and the same was recorded by P.W.17
in the presence of P.W.11 Chelladurai and P.W.13 Karuppaiah. In the said
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confession, the accused Selvaraj disclosed that he concealed the iron rod
behind his house. In turn, he brought the investigation team to his house
and handed over the iron rod and the same was recovered by the
Investigating Officer under the cover of Ex.P.33 Recovery Mahazar.
v) In continuation of investigation, P.W.17 applied for the
Community certificate pertains to the deceased, injured witnesses and
obtained the same. He recorded the statement from the Tahsildar, who
issued the community certificate. He examined the Doctor, who had
conducted an autopsy over the dead body of the deceased. After concluding
the investigation, he came to the positive conclusion that the appellants
herein and the other accused are all committed the offence punishable under
Sections 147, 148, 294(b), 324, 352, 354, 506(ii) and 302 of IPC and
Section 3(2)(V) of SC/ST (POA) Act, 1989 and accordingly, he filed a final
report.
5. Based on the above materials, the trial Court framed the
charges against the first appellant under Sections 147, 148, 354, 352 and
302 of IPC and as against the fifth accused/second appellant, framed the
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charges under Sections 147, 148, 354 and 324 of IPC. Along with other
accused, the appellants herein also denied the charges and opted for trial.
Therefore, the accused were put on trial.
6. During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 17 witnesses had examined as PW1 to
PW17 and 37 documents were exhibited as Ex.P1 to Ex.P37, besides, two
Material Objects [M.O.1 and M.O.2].
7. When the above incriminating materials were put to the
accused under Section 313 Cr.P.C. the accused denied the same as false.
However, they did not chose to examine any witness or mark any document
on their side.
8. Having considered all the above, the learned I Additional
District and Sessions Judge (P.C.R), Tanjavur, found the first appellant
guilty of causing grievous hurt by using dangerous weapon. Further, he
found the second appellant guilty of causing simple hurt by using dangerous
weapon as stated above in paragraph 4(ii). Accordingly, both the appellants
are convicted as stated supra. Aggrieved by the said conviction and
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sentence, the appellants are before this Court with this appeal.
9. I have heard Mr.M.Karunanithi, learned counsel appearing for
the appellants and Mr.E.Antony Sahaya Prabahar, learned Government
Advocate (Crl.side) appearing for the State. I have also perused the records
carefully.
10. Before the trial court, in order to prove the guilt of the
accused, P.Ws.1 to 3 were examined as occurrence witnesses. Among the
above witnesses, P.W.2 has stated before the trial Court as both the
appellants herein had attacked her with iron rod on her left hand. The said
evidence was corroborated by Ex.P22 complaint also. In respect of the
injury sustained by P.W.2, the doctor P.W.9, who treated P.W.2, gave an
opinion that the injury sustained by P.W.2 is could have caused by single
person and therefore, in respect of the attack made by the second appellant,
the evidence given by the victim was corroborated through the evidence of
doctor, who treated P.W.2. Similarly, P.W.3 has also stated about the attack
made by the first appellant on her left shoulder and left knee with iron rod
and wooden log. The said evidence had also been corroborated through
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P.W.9 doctor. Only by believing the evidence of P.Ws.2 & 3, the learned
Trial Judge had convicted the appellants herein as stated above.
11. In this occasion, the learned counsel appearing for the
appellants would contend that on whole reading of the history of the case
narrated by the prosecution reveals a fact that something was suppressed.
Initially, the case has been registered as against 8 persons and during the
time of investigation, P.W.14, one of the Investigating Officers filed an
alteration report, dated 14.10.2013 wherein he dislodged the case against
the second appellant. Consequently, another investigating officer after
completing the investigation, filed a final report after including the second
appellant.
12. He would further submit that as per the case of the
prosecution, on the date of occurrence itself all the injured and the deceased
were admitted in the hospital. In this regard, the investigating officer, who
registered a FIR, has given an evidence that statements have been recorded
from the deceased on the date of occurrence itself. But, contrary to the said
evidence, FIR pertains to the case has been registered after two days from
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the date of occurrence, therefore, the genesis of occurrence itself suppressed
in this case and there by the appellants are entitled the benefit of doubt.
13. Per contra, the learned Government Advocate (Crl.side)
appearing for the respondent would contend that since in the alleged
occurrence more than 10 persons were involved, the minor contradictions
found in the evidence given by the occurrence witnesses cannot be taken
into account for considering the case of the prosecution.
14. By considering the said submissions with relevant records to
decide the issue raised in this appeal, primarily we have to go through the
contents of FIR Ex.P21. The contents of FIR reveals the fact that the
alleged occurrence had happened on 10.10.2013 around 18 hours,
thereafter, information has been received by the police on 12.10.2013
around 17 hours. More than that, after registration of the FIR, the same has
been received by the Magistrate on 14.10.2013 at 05.00 p.m. Therefore, it is
made clear from the averments found in the FIR, the present FIR has been
registered after two days from the date of occurrence. So, it is necessary to
see whether the prosecution offered a reasonable explanation for the delay
occurred in registering the case.
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15. As per the case of the prosecution, P.W.14-Mathavi has
registered a case. In respect of receipt of the complaint, while at the time of
giving evidence as P.W.14, she has stated that she received intimation only
on 12.10.2013 and thereafter she reached the hospital on the same day at
about 18.15 hours. She has further stated after recording the statement from
the deceased Sekar, a case has been registered on the same day.
16. In this regard, P.W.1-Karuppaiah, who is the injured in the
occurrence, has stated in his evidence as during the time of occurrence, he
fell in unconscious and thereafter on the same day, he wake up in the police
station. If such evidence is true one, it is the duty of the police officer to
register the case immediately after receiving the complaint from P.W.1. But
in the case, in respect of evidence given by P.W.1 to resolve the said
contradictions, the other witnesses examined on the side of the prosecution
does not say anything in contra to the evidence given by P.W.1 and
therefore, in respect of the registration of the FIR, something was
suppressed by the prosecution.
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17. Apart from that, after registration of the FIR, the same has
been received by the Magistrate with the delay of 2 days. In this aspect
also, no explanations was offerred by the investigating officer, who
registered the FIR.
18. In this occasion, it is necessary and useful to see the judgment
in the case of Bhagwan Sahai and another vs. State of Rajasthan reported
in (2016) 13 Supreme Court Cases 171, wherein, in Paragraph-8 the
Supreme Court has held as follows:-
“8. The aforesaid view of the High Court is devoid of
legal merits. Once the Court came to a finding that the
prosecution has suppressed the genesis and origin of the
occurrence and also failed to explain the injuries on the
person of the accused including death of father of the
appellants, the only possible and probable course left open
was to grant benefit of doubt to the appellants. ...........”
19. Applying the ratio laid down in the above referred judgment,
herein also, as rightly pointed out by the learned counsel for the appellants
that the genisis of occurrence was suppressed and thereby, both the
appellants are entitled to avail the benefit of doubt.
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20. One another aspect, which is necessary to decide in this appeal
is that while at the time of framing the charge, the trial Court framed the
charge against the second appellant under Section 148 and 354 of IPC
alone. But during the time of concluding the trial, came to the conclusion
that the second appellant is found guilty under section 324 of IPC and
convicted him accordingly. In this occasion, it is necessary to see that the
offence under Section 354 of IPC is not a major offence. Even assuming
that the trial Court is having a power to convict the appellants to a minor
offence, here it is a case, offences under Section 354 of IPC and 324 of IPC
are not related to each other and therefore, this area also, convicting the
second appellant under section 324 of IPC is liable to be set aside.
20.In the light of the above discussions stated supra, we are of the
opinion that the prosecution has not proved its case beyond reasonable
doubt in respect of the appellants herein. Therefore, the Criminal Appeal is
allowed and the conviction and sentence imposed on the appellants, by the
learned I Additional District and Sessions Judge, (P.C.R), Thanjavur, made
in S.S.C.No.43 of 2014, dated 11.03.2016, is set aside and the appellants
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are acquitted from all the charges. The fine amount, if any, paid by them,
shall be refunded to them. Bail bond, if any, executed by the appellants
shall stand cancelled.
05.08.2021
Index : Yes/No
Internet : Yes/No
am
To
1.The I Additional District Sessions Judge,
(P.C.R), Thanjavur.
2.The Inspector of Police,
Vattathikottai Police Station,
Thanjavur District.
3.The Section Officer,
Criminal Section Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.100/2016
R.PONGIAPPAN,J.
am
Crl.A(MD)No.100 of 2016
05.08.2021
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