Madras High Court
R.Ajitha vs State Represented By on 11 October, 2022
Crl.A.(MD)Nos.462 and 477 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
Crl.A.(MD)Nos.462 and 477 of 2019
R.Ajitha ... Appellant / Accused No.3
in Crl.A(MD)No.462 of 2019
1.Regi
2.Shaji ... Appellants / Accused Nos.1&2
in Crl.A(MD)No.477 of 2019
Vs.
State Represented by
The Inspector of Police,
Marthandam Police Station,
Kanyakumari District.
(Crime No.453 of 2014) ... Respondent/Complainant
in both cases
COMMON PRAYER: Criminal Appeals filed under Section 374 of
Criminal Procedure Code, 1973, against the judgment and order dated
27.08.2019 in S.C.No.112 of 2015 on the file of the learned Additional
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District and Sessions Court (Fast Track), Nagercoil.
For Appellants : Mr.C.Muthu Saravanan
in Crl.A(MD)No.462 of 2019 for A3
Mr.V.Baskaran
in Crl.A(MD)No.177 of 2020 for A1&A2
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
(In both cases)
COMMON JUDGMENT
J.NISHA BANU, J.
and
N.ANAND VENKATESH, J.
These Criminal Appeals have been filed against the order
and judgment passed by the Additional District and Sessions Judge, (Fast
Track Court), Nagercoil in S.C.No.112 of 2015, dated 27.08.2019,
convicting and sentencing the appellants in the following manner:
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Sl. Rank of the Conviction for Sentence/Punishment
no. accused offence under
1. A1 to A3 Section 341 IPC One month Rigorous
Imprisonment.
Section 302 r/w Life Imprisonment and a
34 IPC
fine of Rs.5000/- each,
in default, to undergo 6
months simple
imprisonment.
2. A1 and A2 Section 307 IPC 10 years Rigorous
Imprisonment and
a fine of Rs.2000/- each,
in default, to undergo 3
months simple
imprisonment.
2. The case of the prosecution is that A2 is the younger
brother of A1 and A3 is the wife of A1. One month prior to the incident,
Pushpalatha (P.W-1), wife of Rajan, was walking in the street and A1 is
said to have made vulgar comments on P.W-1. This was once again
repeated on 29.06.2014 at about 10.00 a.m. by A1 and A2. The said
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Pushpalatha informed this to her husband Rajan, who is the deceased in
this case and also to P.W-2, who is the brother of the deceased. Both of
them had condemned the acts of the accused persons and hence, there
was a previous enmity between the parties.
3. The further case of the prosecution is that on 05.07.2014,
at about 06.45 p.m., when the deceased, P.W-1 and P.W-2 were coming
back to their house after going to a temple, they were restrained by the
accused persons and A1 is said to have attacked the deceased with
machete (M.O.1) in his head and it was blocked by the deceased with his
left hand and the cut fell on his hand. Thereafter, once again A1 attacked
with M.O.1 in the head of the deceased. A2 is said to have attacked the
deceased with a wooden stick (M.O.2) on his right neck and right
shoulder and A3 is said to have attacked the deceased with stone. When
P.W-2 attempted to stop the accused persons from attacking, he was also
attacked by the accused persons and he sustained injuries. The deceased
and P.W-2 were taken to Marthandam Issac Hospital and from there, the
deceased was shifted to the Government Hospital, Kuzhithurai. The
deceased was declared dead at about 07.50 p.m. A complaint (Ex.P1)
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came to be given by P.W-1 and based on the same, an FIR was registered
by P.W-13 in Crime No.453 of 2014, at about 11.30 p.m. The
investigation was taken up by P.W-14 and ultimately, a final report came
to be laid before the Judicial Magistrate No.1, Kuzhithurai. After serving
the copies to the accused under Section 207 Cr.P.C., the case was
committed to the file of the Principal District Judge under Section 209
Cr.P.C. The case was thereafter made over to the Court below.
4. The Court below framed the charges against the accused
persons for offences under Sections 341, 294(b), 302 r/w 34 and 207
IPC. The prosecution examined P.W-1 to P.W-14 and marked Exhibits
P1 to P22 and identified and marked M.O.1 to M.O.6. The Court below
questioned the accused persons under Section 313(1)(b) Cr.P.C. by
putting the incriminating material and circumstances that were gathered
in the course of trial and the same was denied as false.
5. The Court below, considering the facts and circumstances
and on appreciation of evidence, convicted and sentenced the accused
persons in the manner stated supra. Aggrieved by the same, these
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criminal appeals have been filed before this Court.
6. Heard Mr.C.Muthu Saravanan, learned counsel appearing
for A3, Mr.V.Baskaran, learned counsel appearing for A1 & A2 and
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing
for the respondent in both cases.
7. The prosecution has examined P.W-1 to P.W-4 as
eyewitnesses. P.W-1 to P.W-4 have spoken about the incident in one
voice. P.W-2 also happens to be the injured witness in this case and
sustained injuries in the course of the same incident.
8. The learned counsel appearing on behalf of the appellants
submitted that P.W-1 to P.W-4 could not have witnessed the incident and
even if the incident had taken place, the genesis of the case has been
suppressed, since admittedly, A2 sustained serious injuries in this
incident. In order to develop their submissions, Ex.P1 complaint was
brought to the notice of this Court. It is stated in the complaint that the
incident had taken place near the house of Shaji (A2). Whereas in the
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course of evidence, P.W-1 to P.W-3 have specifically stated that the
incident took place near the house of one Stephen. Insofar as P.W-4 is
concerned, he did not specifically state as to where the occurrence took
place. The attention of this Court was also drawn to the evidence of
P.W-9, who was the doctor, who gave the death intimation and through
whom Ex.P9-Accident Register was marked. This witness had stated that
the occurrence had taken place at about 06.45 p.m on 5.7.2014 at
Varikode Nethaji Mandram.
9. The learned counsel also drew the attention of this Court
to the evidence of P.W-14, who was the Investigation Officer, who
explained in the course of cross-examination, the place where the
occurrence took place based on Ex.P19-Rough Sketch and Ex.P20
Inquest report. In Ex.P19- Rough Sketch, the house of Stephen is
identified as Serial No.2, the house of Shaji (A2) has been identified as
Serial No.11 and Nethaji Mandram has been identified as Serial No.14.
All these three places are located in such a way that the very place of
occurrence throws a suspicion and consequently, according to the learned
counsel for the appellants, the version of P.W-1 to P.W-4 as if they saw
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the incident becomes doubtful.
10. The learned counsel for the appellants also brought to
the notice of this Court the evidence of P.W-6, who was the arrest and
recovery witness, who also states that the police enquired him in the
scene of occurrence, which was in front of the house of Shaji (A2).
11. According to the learned counsel for the appellants, the
place of occurrence has a lot of significance in this case since A2 was
badly injured and the complaint given by A2 against the accused persons
was not even produced or investigated by the police. P.W-13, who was
the police officer, who registered the FIR has specifically stated that a
complaint was given by A2 and no FIR was registered. During the course
of cross-examination, P.W-13 has stated that she recorded the statement
of A2 and had handed over the statement and the wound certificate of A2
to P.W-14, who is the Investigation Officer. The Investigation Officer
did not care to record the statement of P.W-13 or produce the statement
recorded from A2 and the wound certificate. However, after his cross
examination was completed on 02.08.2018, he was again recalled on
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10.07.2019 and for the first time, Ex.P22 was marked as if a statement
was given by A2 and it contained only inculpatory statement of A2 and it
was a made up document to cover up the lapse on the part of P.W-14 and
this document was never ever produced at any point of time during the
entire trial.
12. It is significant to take note of the evidence of P.W-10,
who was the doctor who treated A2 and through whom Exhibits P10 and
P11 were marked. This doctor has stated that A2 had informed him that
he was attacked in his house by known persons with a knife and as a
result of the same, A2 sustained the following injuries:
“ 1.Lacerated wound-scalp left parietal region 7 x 1 cm.
2.Avulsed wound left earlobe & skin loss.
3.Lacerated wound back of left earlobe 1 x 1 cm.
4.Contusion infront of left ear.”
13. It is also clear from the police intimation given by the
hospital that A2 had sustained the injuries due to an assault.
Unfortunately, the injuries sustained by A2 was not even investigated
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and P.W-13 did not even register an FIR. To cover up the lacuna, Ex.P22
was introduced at a later point of time and this document is completely
unreliable. It is further curious that Ex.P22 has been signed by both A1
and A2. It is stated as if it was received on 06.07.2014 and whereas there
is absolutely no explanation as to why it was not produced before the
Court by P.W-14 till 10.07.2019 and that too after taking a stand that the
statement of P.W-13 is not filed before the Court and the statement
recorded from A2 by P.W-14 along with the wound certificate was held
back from the Court.
14. P.W-1 and P.W-2 took a stand as if the deceased did not
consume any alcohol and whereas it is clear from the evidence of
P.W-11, who is the doctor who conducted the postmortem that there was
sufficient level of alcohol content (Ethyl alcohol) in the intestine, liver
and pancreas. It is not known whether the deceased, under the influence
of alcohol, developed a fight with the accused persons resulting in a
melee and that ultimately led to the incident. As rightly contended by the
learned counsel for the appellants, the genesis of the case has been
suppressed by not investigating the injuries sustained by A2 in order to
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find out who was the real aggressor.
15. The learned Additional Public Prosecutor explained the
topography by placing reliance upon Ex.P6-Observation Mahazar and
Ex.P19-sketch read with the evidence of the Investigation Officer,
P.W-14. The learned Additional Public Prosecutor submitted that the
place of occurrence has been specifically noted in the sketch and in the
Observation Mahazar, all the places that were pointed out by the learned
counsel for the appellants are in the same locality and hence, the
discrepancy found in the exact place where the incident took place, does
not discredit the evidence of P.W-1 to P.W-3. It was submitted that if the
presence of P.W-1 to P.W-4 has been established and there is no
improbability of their presence in the scene of occurrence, the other small
discrepancies cannot overshadow the eyewitness version given by these
witnesses. It was further submitted that the prosecution never attempted
to conceal the fact that A2 also sustained injuries and all the relevant
documents were placed before the Court.
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16. On a careful consideration of the evidence available on
record, it is abundantly clear that the incident had taken place and as a
result of the same, the husband of the deceased died, A2 and P.W-2
sustained injuries. Since the injury sustained by A2 was not even
investigated, the genesis of the occurrence has been suppressed. If the
same had been investigated, the place where the occurrence took place,
the real aggressor and the manner in which the melee happened would
have become more clearer. However, there is absolutely no clarity on
these vital facts.
17. There is also a doubt on the so called arrest and
recovery. P.W-14 has stated in his evidence that the recovery took place
at 4.15 p.m. on 06.07.2014. Whereas, Ex.P5 shows that the recovery had
taken place at 3.00 p.m. That apart, Form 91 which was sent to the Court
was returned by the Court stating that the property did not accompany
Form 91. Hence, the manner in which the recovery is sought to be
established through P.W-14 is highly doubtful.
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18. It is also seen from the evidence of P.W-3 and P.W-4
that the statement was recorded from them by the police in the
Government Hospital and it was also signed by them. These statements
were never produced before the Court and if actually such statements had
been taken from P.W-3 and P.W-4, there was no occasion for P.W-1 to
go to police station late in the night at about 11.30 p.m. Hence, the
earliest version about the incident as given by P.W-3 and P.W-4 is also
not available.
19. From the overall evidence available on record, it is clear
that the genesis of the case has been suppressed and as a result, the way
in which the case is sought to be projected by the prosecution, becomes
very doubtful and unreliable.
20. The postmortem doctor, who was examined as P.W-11
had recorded the following injuries:
“ 1) 6 x 1cm x bone depth laceration seen over the
left front region extend upto left parietal region.
2) 2 x 1/2 cm x bone depth laceration seen over the
left parietal region.
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3) 3 x 1/2 cm x bone depth lacerated injury seen
over the left parietal region close to the mid line.
4) 8 x 4 cm abraded contusion seen over the right
side of neck.
5) 3 x 2 cm abraded contusion seen over the right
supra clavichord region.
6) 3 x 2 cm abrasion seen over the right axilla.
7) 2 x 1 cm abrasion seen over the inner aspect of
right foot.
8) 5 x 2 cm abrasion seen over the inner aspect of
right great toe.
9) 1 x 1/2 x 1/2 cm laceration seen over the left
index finger.
10) 1 x 1 cm abraded laceration seen over the left
hand near 2nd and 3rd space.”
The final opinion given by P.W-11 is that the deceased had died due to
shock and haemorrhage, due to head injury and the chemical report
marked as Ex.P14 shows that the deceased had consumed ethyl alcohol
prior to death.
21. A2 is said to have attacked with a wooden stick and A3
is said to have attacked with a stone. The doctor was not shown any of
these material objects inorder to ascertain whether the injuries caused to
the deceased can be attributed to the wooden stick and the stone (which
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was not even recovered). The Apex Court in Amar Singh v. State (NCT
of Delhi) reported in (2021) 3 SCC (Cri) 784 has held as follows:
“28. Dr M.S. Sagar in his post-mortem report
has opined that the cause of death was due to shock
due to multiple ante-mortem injuries caused by
sharp-edged weapon and Injuries 11 and 14 were
individually and collectively sufficient to cause death
in ordinary course of nature. He further opined in
his statement that injuries have been caused by
sharp-edged weapon and since no weapon was
shown to him, he has not given any opinion.
Admittedly the tip of knife which was recovered on
the disclosure statement of appellant-accused
Inderjeet Singh, was broken and it was not pointed
but blunt. Whether the type of stab and incised
wound found on the body of the deceased could have
been inflicted by a knife with a broken tip, is in our
opinion, extremely doubtful. The opinion of the
doctor has not been obtained as to whether such
injuries could have been caused by knife with a
broken tip by showing him the same.
29. In the facts and circumstances of the case, this
was serious lapse on the part of the investigating
officer. Though normally minor lapses on the part of
the investigating officer should not come in the way
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of accepting eyewitness account, if otherwise
reliable. But in the circumstances of the case at
hands where the conduct of sole eyewitness is
unnatural and there are various other surrounding
circumstances which make his presence at the site of
incident doubtful, such a lapse on the part of the
investigating officer assumed significance and is not
liable to be ignored.
30. While emphasising the importance of eliciting the
opinion of medical witness in such circumstances
this Court in Kartarey v. State of U.P. [Kartarey v.
State of U.P., (1976) 1 SCC 172 : 1975 SCC (Cri)
803] has observed as under : (SCC p. 177, para 26)
“26. … We take this opportunity of emphasising the
importance of eliciting the opinion of the medical
witness, who had examined the injuries of the victim,
more specifically on this point, for the proper
administration of justice, particularly in a case
where injuries found are forensically of the same
species, e.g., stab wounds, and the problem before
the Court is whether all or any those injuries could
be caused with one or more than one weapon. It is
the duty of the prosecution, and no less of the Court,
to see that the alleged weapon of the offence, if
available, is shown to the medical witness and his
opinion invited as to whether all or any of the
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injuries on the victim could be caused with that
weapon. Failure to do so may sometimes, cause
aberration of the course of justice.”
31.The same has been again asserted by this Court
in Ishwar Singh v. State of U.P.[Ishwar Singh v.
State of U.P., (1976) 4 SCC 355 : 1976 SCC (Cri)
629] by observing as under : (SCC pp. 359 & 361,
paras 5 & 8)
“26. … It is the duty of the prosecution, and no less
of the court, to see that the alleged weapon of the
offence, if available, is shown to the medical witness
and is opinion invited as to whether all or any of the
injuries on the victim could be caused with that
weapon. Failure to do so may sometimes, cause
aberration of the course of justice.” [Ed.: As
observed in Kartarey v. State of U.P., (1976) 1 SCC
172, p. 177, para 26 quoted in Ishwar Singh v. State
of U.P., (1976) 4 SCC 355 at p. 361, para 8.] On the
basis of the evidence on record it is difficult to say
whether the injury to the deceased was caused by the
knife with a broken tip which was ceased. These
variations relate to vital parts of the prosecution
case, and cannot be dismissed as minor
discrepancies. In such a case, the evidence of the
eyewitness “cannot be accepted at its face value”, as
observed by this Court in Mitter Senv. State of U.P.
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[Mitter Sen v.State of U.P., (1976) 1 SCC 723 : 1976
SCC (Cri) 190]”
22. It is clear from the above that where the opinion of the
doctor has not been obtained as to whether the injuries found on the body
of the deceased could have been caused by the wooden stick or the stone,
more particularly, where there is a doubt in the manner in which the
incident had taken place, it will be very unsafe to sustain the conviction
and sentence as against A2 and A3.
23. This Court has already given a finding to the effect that
an incident had surely taken place and the only doubt was the manner in
which it took place. Therefore, even assuming that the deceased was the
aggressor and the accused persons exercised their right of private
defence, it must be seen if A1 had exceeded his right of private defence.
Going by the weapon (M.O.1) used by A1 and the injuries sustained by
the deceased, it is clear that A1 had clearly exceeded his right of private
defence. In the course of the said transaction, P.W-2 had also sustained
injuries. In view of the same, the conviction and sentence imposed
against A1 deserves to be modified.
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24. The second exception to Section 300 will apply to the
facts of the present case. In view of the same, this Court is inclined to
alter the conviction and sentence under 302 r/w 34 IPC to one under
Section 304 (ii) of IPC. It is seen that while A1 was exceeding his right
of private defence, he had done it with the knowledge that it is likely to
cause the death or cause such bodily injury as is likely to cause death.
Accordingly, the sentence is modified to 5 years Rigorous Imprisonment
with fine of Rs.5000/-, in default, to undergo 6 months Simple
imprisonment for the offence under Section 304(ii) IPC.
25. Accordingly, the conviction and sentence on the accused
persons is modified as follows :
Sl. Rank of Conviction for Sentence/Punishment
no. the offence under
accused
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1. A1 Section 304 (ii) 5 years Rigorous
IPC
Imprisonment and a fine of
Rs.5000/-, in default, to
undergo six months simple
imprisonment.
Section 307 IPC 5 years Rigorous
Imprisonment and a fine of
Rs.2000/-, in default, to
undergo three months
simple imprisonment.
2. A2 and Acquitted from all charges.
A3
26. In the result,
(i) Crl.A(MD)No.462 of 2019 is allowed and the bail bond
executed by A3 shall stand cancelled and fine amount, if any paid by her
shall be refunded to her.
(ii) Crl.A(MD)No.477 of 2019 is allowed insofar as A2 is
concerned and the bail bond executed by A2 shall stand cancelled and
fine amount, if any paid by him shall be refunded to him.
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(iii) Insofar as A1 is concerned, Crl.A(MD)No.477 of 2017
is partly allowed and the conviction and sentence stands modified in the
manner indicated herein above and the sentence shall run concurrently.
(iv) Since A1 was granted bail during the pendency of this
appeal, he is directed to surrender before the Trial Court on or before
31.10.2022 to undergo the remaining period of sentence, failing which,
the trial Court shall take immediate steps to secure A1 in order to
undergo the remaining period of sentence and
(v) The period of sentence already undergone by the A1 is
ordered to be set off under Section 428 Cr.P.C.
[J.N.B., J.] [N.A.V., J.]
11.10.2022
Index : Yes/No
Internet : Yes
PJL
To
1. The Additional District (Fast Track),
Nagercoil.
2.The Inspector of Police,
Marthandam Police Station,
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Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
PJL
Judgment made in
Crl.A.(MD)Nos.462 and 477 of 2019
11.10.2022
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