Madras High Court
M.Venkatachalam @ Venkidu vs The State Rep By on 9 March, 2022
Crl.A(MD)No.13 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2022
(Reserved on 21.02.2022)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Criminal Appeal(MD)No.13 of 2019
M.Venkatachalam @ Venkidu ... Appellant
vs.
The State rep by
The Inspector of Police,
Adivaram Police Station,
Palani, Dindigul District. ... Respondent
Appeal filed under Section 374 of the Criminal Procedure Code, to
set aside the judgment of conviction and sentence dated 21.12.2018
made in S.C.No.136/2011 on the file of the learned Additional District and
Sessions Judge, Dindigul, and allow this appeal.
For Appellant : Mr.R.Srinivas for Mr.N.Dilipkumar
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The 1st accused in S.C.No.136 of 2011, who has been
convicted for the offence under Section 302 IPC and sentenced to
undergo life imprisonment and to pay a fine of Rs.10,000/- failing which,
to undergo two years rigorous imprisonment, is on appeal against the said
conviction.
2. The case of the prosecution is that on 07.05.2010, when the
complainant Silambarasan was sitting in the cash box of Punnagai Hotel,
one Kannan, a mentally retarded person, was transporting water in a
handcart. Since the said Kannan did not give way to the Auto which was
driven by A2/Marimuthu, A2 got down from the Auto and beat up the said
Kannan. The complainant therefore got down from the cash box,
explained to A2 about the mental status of Kannan and took the said
Kannan and the water cart to Punnagai Hotel. Thereafter, one
Krishnamurthy, uncle of the complainant, who returned from Palani, went
to the Auto Stand and warned A2. At around 10.45 p.m., when the
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complainant and his employee Murugan were in Punnagai Hotel, the
accused persons came with deadly weapons to the Hotel and shouted at
Krishnamurthy, as to how he could warn A2. Unexpectedly, the
appellant/A1 pulled Krishnamoorthy and attacked him in the head with
sickle. When Murugan and the complainant attempted to prevent,
A2/Marimuthu beat up Murugan and the complainant. The appellant/A1
attacked Krishnamoorthy who had fallen down with the sickle and
thereafter, the accused persons departed from the scene of occurrence.
The complainant had taken his uncle Krishnamoorthy to Palani
Government Hospital and the Police had enquired him at the Government
Hospital and recorded his statement. The Sub Inspector of Police, Palani,
visited the scene of occurrence and prepared the Observation Mahazar
which is marked as Ex.P16. The signatures of the witnesses to Ex.P16
namely, PW2 and PW3 found therein, were marked as Exs.P2 and P4
respectively. The Sub Inspector of Police, Palani, also collected the earth
with bloodstains and earth without bloodstains under recovery mahazar
Ex.P18. The signature of the witnesses to Ex.P18 namely, PW2 and PW3
were marked as Ex.P3 and P5. A2/Marimuthu was arrested at 08.00
a.m., on 08.05.2010 and he had given a confession statement. The
admissible portion of the confession was marked as Ex.P6. On the basis
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of the said confession, the sickle-M.O.1 and the wooden log-M.O.2 were
seized under Ex.P7-Mahazar. The appellant/A1 surrendered before the
Village Administrative Officer, Palani, about 02.00 p.m on 13.05.2010
and gave a confession statement. The said confession statement was
marked as Ex.P8. The body of the deceased Krishnamoorthy was sent for
postmortem under Ex.P9. The accident register was marked as Exs.P10
and P11. The forensic reports were marked as Exs.P12 to P14. Upon
carrying out the investigation, the investigating officer had filed a final
report for the offences under Section 302 IPC in respect of the
appellant/A1 and for the offences under Sections 323, 302 r/w Section
114 IPC and Section 302 r/w with Section 34 IPC, in respect of A2.
3. Before the trial Court, in an attempt to prove the prosecution's
case, the prosecution examined 19 witnesses and marked 22 documents.
The sickle and the wooden log were marked as M.O.1 and M.O.2. No
evidence was let in on the side of the appellant. Exs.B1 and B2 were
marked on his side.
4. The trial Court on consideration of the evidence on record,
concluded that the prosecution has proved the offence under Section 302
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IPC in respect of the appellant/A1. Since A2 Marimuthu died pending
trial, the case against him stood abated. The appellant/A1 was convicted
and sentenced to undergo life imprisonment with a fine of Rs.10,000/-, in
default of payment of the fine, he has been sentenced to undergo
rigourous imprisonment for a period of two years.
5. We have heard Mr.R.Srinivas, learned counsel appearing for
Mr.N.Dilipkumar, learned counsel on record for the appellant and
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for
the State.
6. Mr.Srinivas, learned counsel for the appellant would
vehemently contend that the trial Court overlooked the fact that it is a
case of case and counter and the investigating officer should have
scrupulously followed the Tamil Nadu Police Standing Order 566, while
conducting an investigation in a case like this. According to the learned
counsel, the procedure adopted by the investigating officer to have
investigated only Crime No.326 of 2010 and to have allowed another
officer to investigate Crime No.327 of 2010 which is a counter case, had
lead to partial investigation and violation of a fundamental right of the
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accused. Drawing our attention to the Tamil Nadu Police Standing Order
566, the learned counsel would contend that non compliance of PSO 566
had resulted the entire investigation being flawed.
7. He would also contend that all the eye-witnesses who have
been examined, are interested and related witnesses. It is also stated
that PWs 1, 4 and 5 were accused in Crime No.327 of 2010 and PW6
being the sister of PW5 and PW9 being the relative of the deceased, are
also witnesses interested in securing the conviction of the accused in the
case on hand. The learned counsel would also point out that the evidence
of PWs 1, 4, 5, 6 and 9 is contradictory and artificial and hence, the same
cannot form the basis for conviction. The learned counsel would point out
the following inconsistencies in the evidence of the eye-witnesses namely,
PWs.1, 4, 5, 6 and 9. According to him, there is an inconsistency in the
very scene of occurrence. PW1, the complainant in his evidence had
stated that at the time of the occurrence, apart from the deceased
Krishnamoorthy, only PW1 and Murugan were present in the Hotel
namely, Punnagai Hotel. It is also stated that his sister and mother were
in another shop called Rajan Hotel. PW4, the other eye-witness namely,
Murugan, does not speak about the presence of any other person except
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himself, PW1 and the deceased. PW5 who is projected as eye-witness,
admits that she did not see the occurrence and she would state that upon
hearing the sound when she went to Punnagai Hotel, the complainant told
her that the accused persons has attacked Krishnamoorthy with the
sickle. Therefore, according to the learned counsel, the evidence of PW5
is only hearsay. PW6 had, in fact, claimed that she alone saw the
occurrence and only upon hearing her noise, the complainant and
Murugan came to Rajan Hotel. The evidence of PW6 according to the
learned counsel, in fact, shifts the scene of occurrence from Punnagai
Hotel to Rajan Hotel. PW9 who is a chance witness, according to the
learned counsel, had given the entirely different version from that of the
other witnesses, inasmuch as he says PW1's mother Pandiammal was also
present at the scene of occurrence which is not the case of the other eye-
witnesses. Therefore, according to the learned counsel, the evidence of
the eye witnesses is contradictory and artificial.
8. The learned counsel would also draw our attention to the
judgment of the Hon'ble Supreme Court in Sadayappan vs. State
reported in (2019) 9 SCC 257, wherein, the Hon'ble Supreme Court has
held that there is a distinction between related witnesses and interested
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witnesses. Relying upon the judgment in Sudhakar vs. State reported
in (2018) 5 SCC 435, the Hon'ble Supreme Court had pointed out that a
witness could be termed as an interested witness only if he or she derives
some benefit from the result of the litigation or in seeing an accused
person punished. Therefore, it is clear that in a criminal case, merely
because the witness is related to the victim or the complainant, he or she
cannot be treated as an interested witness.
9. The learned counsel would further argue that no independent
witnesses have been examined even though the scene of occurrence was
crowded and neutral third party witnesses were available. Drawing our
attention to the evidence of PW1, wherein, he admits that shops around
the scene of occurrence were opened and there were people in the shops
namely, Kadhar Cassette Shop, Lakshmi Tea Stall and Om Muruga
Bathing Centre. He would also draw our attention to the evidence of PW5
who states that the scene of occurrence was crowded at the time when
the occurrence took place. PW6 and PW9 also corroborate the said claim.
PW16, the investigating officer, has also admitted that the shops in the
areas will remain open throughout the night. The learned counsel would
also draw our attention to Ex.P17, the sketch which shows that the scene
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of occurrence was actually in front of Kadhar Cassette Shop and blood
stains were also found near Kadhar Cassette Shop. The evidence of PW1
in cross examination is also relied upon by the learned counsel to buttress
his submission that there is clear uncertainty about the scene of
occurrence. It is also pointed out that PW4 Murugan has also deposed
that the scene of occurrence was not exactly in front of Punnagai Hotel,
but it was about 10 feet away from there. The admission by PW6 to the
effect that the attack took place near Rajan's Hotel at about 10.45 p.m.,
is also relied upon by the learned counsel in support of his claim that
there were very serious contradictions in the evidence of the so-called
eye-witnesses which according to him, would make their evidence
unreliable.
10. The learned counsel would also point out that there is a
considerable delay in registration of the FIR and its despatch to the court.
From the evidence, it is seen that the alleged crime occurred at about
10.45 p.m., on 07.05.2010 and though PW1 was examined at the
Government Hospital, Palani, at 11.45 p.m., FIR was registered on the
next day i.e., 08.05.2010 at 01.15 a.m. The evidence of PW1 to the
effect that A2 was in the police station when he lodged a complaint on
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07.05.2010 at 11.45 p.m., is also taken as the circumstance by the
learned counsel to destabilise the case of the prosecution. The fact that
the FIR registered at 01.15 a.m on 08.05.2010, reached the Judicial
Magistrate's Court at 02.45 p.m., in the absence of any explanation,
would vitiate the investigation. The distance between the police station
and the Judicial Magistrate's Court which is about 1 k.m., is also pointed
out by the learned counsel, to contend that there is no justification for the
delay in sending the FIR to the Court. The learned counsel would also
contend that the arrest of the accused and the recovery of material
objects 1 and 2 is also false. According to PW16, A2 was arrested before
the Village Administrative Officer-PW7 at Madhanapuram around 08.00
a.m., on 08.05.2010 and the material objects namely, the sickle and the
wooden log were recovered. But, PW1's evidence would show that A2
was present in the police station even when he went there at 11.45 p.m.,
to lodge a complaint. This circumstance according to the learned counsel,
renders the prosecution's case of arrest and recovery doubtful. The
evidence of PW1 is also pointed out by the learned counsel to show that
the theory of recovery itself is cooked up.
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11. Apart from the above contradictions, non compliance of PSO
566 and the absence of explanation for the injuries suffered by the
accused persons as well as the counter case, would according to the
learned counsel, render the case of the prosecution unbelievable and
hence, the conviction is liable to be set aside. The learned counsel would
submit that the accused would atleast be entitled to the benefit of doubt
in view of the serious contradictions in the evidence.
12. Justifying the conviction, Mr.A.Thiruvadi Kumar, the learned
Additional Public Prosecutor appearing for the State would submit that no
doubt, there are certain contradictions in the evidence of the eye
witnesses as well as the investigating officer and those minor
contradictions by themselves would not render the conviction liable to be
set aside. The learned counsel would point out that the motive for the
attack having been established, the conviction of the accused is justified.
Arguing further, the learned Additional Public Prosecutor would submit
that the mere fact that the case and the counter case were not taken up
for investigation together and there has been a non compliance of PSO
566 on the part of the investigating officer, would not by itself lead to the
conclusion that the prosecution's case should be rejected.
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13. We have considered the rival submissions.
14. As rightly pointed out by the learned counsel for the appellant,
the evidence of the eye witnesses namely, PWs.1, 4, 5, 6 and 9 are
riddled with inconsistencies and contradictions. There is no unanimity
even on the scene of occurrence and the persons who were present at the
time of the occurrence. While PW1 has fixed the scene of occurrence as
in front of Punnagai Hotel, PW5 and PW6 have deposed that the attack
took place near Rajan's Hotel. Ex.P17 sketch would show that the scene
of occurrence was near Kadhar Cassette Shop and not in the other two
places as suggested by the eye-witnesses. So, there is an uncertainty
regarding the scene of occurrence. There are also serious contradictions
with reference to the persons who were present at the time of the
occurrence. PW1 and PW4 would depose that no one else other than
PW1, PW4 and the deceased Krishnamoorthy, were present at the time of
occurrence. PW9 would state that PW1 and his mother Pandiammal were
present at the time of occurrence. PW6 has deposed to the effect that it
is only upon hearing there shouts did, the complainant and Murugan came
rushing to the place of occurrence and she would add that she was in
Rajan's Hotel along with her sister and mother. Therefore, the presence
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of PWs 4, 5, 6 and 9 at the time of the occurrence itself is doubtful.
Atleast PW6 cannot be treated as eye-witness inasmuch as she has stated
that she did not see the attack taking place, but she was told that her
husband was attacked by the accused persons, by PW1-Silambarasan.
Apart from the above, the contention of the learned counsel that the
absence of neutral third party witnesses despite the fact that the area
being crowded at the time of the alleged attack, also raises a doubt. All
the witnesses including PW16 have admitted that the area where the
occurrence took place was crowded and all the shops were open with
customers and therefore, the absence of any third party witness raises a
doubt in the mind of the Court as to the correctness of the prosecution
version.
15. As regards the procedural infirmity namely, non investigation
of the case and the counter case, PSO 566 requires an investigating
officer to take up investigation in the counter case simultaneously along
with the main case. Admittedly, there was a counter case which is
registered as Crime No.327 of 2010 which was investigated by a different
officer and the accused persons therein were acquitted of the offences by
the Court. This has resulted in a very serious prejudice to the accused in
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the case on hand. The fact that there was a counter case, is admitted by
PW1 in his evidence. Therefore, the violation of PSO 566, cannot be
brushed aside lightly. The Hon'ble Supreme Court in State of M.P vs.
Mishrilal (Dead) and others reported in (2003) 9 SCC 426, has
pointed out that in case of case and counter, the investigating officer
must take up the investigation together so as to avoid conflicting
judgments on the same occurrence. This failure in the case on hand has,
in fact, resulted in conflicting judgments, where PW1 and the deceased
have been acquitted of the offences in Crime No.327 of 2010. The
accused herein has been convicted on the very same occurrence. The
Hon'ble Supreme Court has held that a legal obligation is cast upon the
investigating officer to endeavour to find out the truth and cull out the
truth from falsehood. The fact that the investigating officer in the case on
hand has chosen to investigate only one crime number leaving the other
to be investigated by the other officer, had failed in his duty to act fairly.
It is also to be noted, the accused also sustained injury and on the basis,
the witnesses were also prosecuted in a separate counter case. But, no
details or papers have been filed by the prosecution for the proper
assessment by the Court. During hearing, it also came to light that the
place of occurrence in both the cases differ. The place of occurrence as
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per the counter case, is said to be the TASMAC lane. The witnesses who
had spoken in this case also shifted the place of occurrence, which is
almost the place shown in the counter case. Therefore, non-filing of the
connected papers in the counter case and failure to explain the nature of
the injury sustained by the accused will only lead us to the conclusion that
the genesis of the occurrence has been suppressed by the prosecution.
16. The other contention of the learned counsel for the appellant
that the injuries found on the accused were not properly explained and
the fact that the deceased was under the influence of Alcohol, cannot also
be ignored totally. The delay in sending the FIR to the Court also raises
suspicion regarding the correctness of the prosecution version. There is
always a possibility of prosecution version being tainted because of the
delay. The learned counsel also claim that the overt acts attributed by
PW1 do not support the injuries found on the body of the deceased which
are shown in the postmortem report marked as Ex.P22, as follows:-
''1.Partly healed sutured laceration 6 cms x 0.5 cms x bone
deep noted on right frontal region.
2.Partly healed abrasions noted on the following areas:
- 6 cms x 4 cms on right forehead;
- 3 cms x 3 cms on top of right shoulder;
- 4 cms x 3 cms on top of left shoulder;
- 3 cms x 2 cms on the front of right knee.
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17. PW1 in his evidence has specifically stated that both times the
attack was only on the head of the deceased Krishnamoorthy but the
postmortem report reveals that there is only one laceration on the right
frontal region and partly healed abrasions on the right forehead of the
deceased. Therefore, there is again a very serious doubt caused about
the truthfulness of the prosecution theory. We are therefore constrained
to observe that the prosecution has not proved its case beyond all
reasonable doubt, so as to enable us to confirm the finding of the guilt
and the consequential punishment rendered by the trial Court. We are
certainly of the opinion that the accused would be entitled to atleast
benefit of doubt.
18. For the foregoing reasons, this Criminal Appeal is allowed and
the judgment of conviction and sentence dated 21.12.2018 made in
S.C.No.136/2011 on the file of the learned Additional District and
Sessions Judge, Dindigul, is set aside and the appellant/A1 is acquitted.
Fine amount, if any, shall be refunded. Bail bond shall stand cancelled.
(R.S.M., J.) (N.S.K., J.)
09.03.2022
Index : Yes / No
bala
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To
1.The Inspector of Police,
Adivaram Police Station,
Palani, Dindigul District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.13 of 2019
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
PRE-DELIVERY JUDGMENT MADE IN
CRL.A(MD)No.13 of 2019
DATED : 09.03.2022
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