Madras High Court
Durairaj vs State Represented By on 18 October, 2022
Crl.A.(MD)No.527 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
Crl.A.(MD)No.527 of 2019
1.Durairaj
2.Madhubalan
3.Kanagaraj ... Appellants / Accused Nos.1 to 3
Vs.
State Represented by
The Inspector of Police,
Siruganur Police Station,
Trichy District.
(Crime No.190 of 2015) ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, 1973, against the judgment and order dated 26.09.2019
in S.C.No.44 of 2019 on the file of the learned I-Additional District and
Sessions Court (PCR), Tiruchirappalli.
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For Appellants : Mr.S.Ashok Kumar
Senior Counsel
for Mr.N.Anandakumar
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
J.NISHA BANU, J.
and
N.ANAND VENKATESH, J.
This appeal has been filed against the judgment and order
passed by the I-Additional District and Sessions Court(PCR),
Tiruchirappalli, made in S.C.No.44 of 2019, dated 09.10.2019,
convicting and sentencing the appellants for offence under Section 302
r/w 34 IPC (2 counts) and to undergo Life Imprisonment for each count
and to pay a total fine of Rs.2000/-, in default, to undergo two years
Simple Imprisonment.
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2. The case of the prosecution is that the deceased
Arumugam(D1) and Tirupathi(D2) are brothers and there was a previous
enmity due to an earlier incident, whereby the deceased along with
Lakshmanan are said to have murdered Natarajan and Nagarajan, who
are the relatives of the accused persons. That apart, there was also a land
dispute between the family of the deceased and the family of the accused
persons. On 27.05.2015 at about 11.30 a.m., when the deceased were
engaged in putting up a temporary structure, the accused persons entered
the property with M.O.1 to M.O.3 and abused the deceased and attacked
them indiscriminately, resulting in the death of both D1 and D2 on the
spot.
3. P.W-1, who was the wife of D2, went along with her
daughter and informed the police about the incident and it was reduced to
writing and a complaint(Ex.P1) was prepared. The FIR(Ex.P15) was
registered by P.W-17 at about 12.30 p.m. on 27.05.2015.
4. The investigation was initially taken up by P.W-19 and
subsequently, was taken over by P.W-20 and a final report was laid
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before the Judicial Magistrate, Lalgudi. After the copies were served on
the accused persons under Section 207 Cr.P.C, the matter was committed
to the Principal District and Sessions Court, Thiruchirapalli and it was
made over to the Court below.
5. The Court below framed charges against the accused
persons for offence under Section 302 r/w 34 of IPC (2 counts).The
prosecution examined P.W-1 to P.W-20 and marked Ex.P1 to Ex.P19
besides M.O.1 to M.O.3. The defendants examined D.W-1 and marked
Ex.D1 to Ex.D3. The incriminating materials that were gathered during
the course of trial were put to the accused persons while questioning
them under Section 313(1)(b) Cr.P.C and they individually gave the
written statements in reply to the questions put to them.
6. The Court below, on considering the facts and
circumstances of the case and on appreciation of oral and documentary
evidence, gave a finding that the prosecution has proved the case beyond
reasonable doubts and thereby, convicted and sentenced the accused
persons in the manner indicated above. Aggrieved by the same, these
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Criminal Appeals have been filed before this Court.
7. Heard Mr.S.Ashok Kumar, learned Senior Counsel for
Mr.N.Anandakumar, learned counsel for the appellants and
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing
for the State.
8. The prosecution has relied upon the evidence of P.W-1,
P.W-2, P.W-3, P.W-4 and P.W-18 by treating them as eyewitnesses.
P.W-1 is the wife of D2. She was the one who had set the law in motion
by giving the complaint(Ex.P1). In the complaint, she had projected a
case as if the accused persons entered the property and attacked the
deceased and caused their death. This complaint is said to have been
given on 27.05.2015 at 12.30 noon. There is not even a whisper about the
injuries sustained by A2 and A3. However, a line has been inserted at the
end of the complaint with a different ink as if A2 and A3 sustained
injuries. The body of the complaint does not state as to how they
sustained injuries. It is therefore clear that this was an insertion which
took place at a later point of time.
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9. P.W-1, during cross examination, has admitted that the
police enquired her and prepared the complaint and she did not mention
about the injuries sustained by A2 and A3 in the complaint and it was not
written in the complaint and she feigns ignorance as to who inserted the
name of A2 and A3 to have sustained injuries, in the complaint.
10. P.W-1, in the chief examination, has stated as if she
went along with the deceased in the morning to the place of occurrence.
However, in the cross examination, she has stated that she came along
with P.W-18 at about 10.30 a.m. and the deceased had left to the place of
occurrence at 8.00 a.m. itself. P.W-2, who was also examined as an
eyewitness, does not even talk about the injuries sustained by A2 and A3
and in the cross examination, he states that he heard a sound and when he
went to the scene of occurrence, he found A2 and A3 injured.
11. P.W-3 and P.W-4 are neighbours of P.W-1 and they
state that they never went to the village where the occurrence took place
earlier and they don’t even know the accused persons and they did not
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name the accused persons even when their statements were recorded in
the course of investigation. Surprisingly, the name of P.W-3 and P.W-4
does not even find place in the complaint(Ex.P1). These two witnesses
were examined by the police and Section 161(3) Cr.P.C statements were
recorded from them only on 01.06.2015, which is nearly five days after
the incident.
12. P.W-18 is the daughter of D2. Even this witness does
not state about the injuries sustained by the accused persons and she only
talks about the accused persons attacking the deceased and causing their
death.
13. On a careful reading of the evidence of the above
witnesses, it is clear that they have suppressed the very genesis of the
case, since none of them even spoke about the injuries sustained by the
accused persons in their chief examination.
14. P.W-19 was the Inspector of Police who was in-charge
of the Samayapuram Police Station and he specifically talks about the
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injuries sustained by A2 and A3 and the FIR registered in Crime No.191
of 2015. The FIR was registered based on the statement recorded from
A2 and A3 in the General Hospital at Trichy. It is further clear from his
evidence that A2 and A3 were taking treatment in the General Hospital
till 01.06.2017.
15. Insofar as the injuries sustained by A2 and A3, the same
has been substantiated by examining P.W-19 and marking Exs.D1 and
D2 through him. The injury sustained by A2 as recorded in the discharge
summary is as follows :
“Head- Laceration of size 6 x 2 x 2 cm over the left
parietal region; Left forearm-Swelling of size 5 x
3cm; Right hand-tenderness in base of thumb
laceration of size 1 x 0.5 x 0.5 cm seen in right
index finger, distal pharynx.”
16. The injuries sustained by A3 as recorded in the
discharge summary is extracted as follows:
“Head-Laceration of size (i) 4x0.5x0.5cm (ii)
7x0.5x0.5cm (iii) 4x0.5x0.5cm and (iv)
3x0.5x0.5cm over both parietal region. Left arm
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suturing done with 1° silk.”
17. It is clear from the above that A2 had sustained one head
injury and A3 had sustained nearly four head injuries.
18. P.W-20, who was the Investigation Officer, who laid the
final report, in his evidence categorically admits that P.W-1, P.W-2 and
P.W-18 did not state that P.W-3 and P.W-4 were present in the scene of
crime. He further states that he is aware about the registration of FIR in
Crime No.191 of 2015 for the injuries sustained by A2 and A3 and he
completely feigns ignorance when he was asked as to whether A2 and A3
were attacked by D1 and D2 with M.O.1 to M.O.3. It is evident that there
was absolutely no investigation in the FIR that was registered in Crime
No.191 of 2015 and the injuries sustained by the accused persons were
not explained by the Investigation Officer. This is yet another strong
ground to come to a conclusion that the genesis of the occurrence has
been suppressed.
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19. The FIR was registered on 27.05.2015 at about 12.30
noon and it reached the Court only at 10.45 p.m. P.W-14, who took the
FIR to the Court, has stated that it will only take 1½ hours to reach the
Court from the police station and there was absolutely no explanation as
to why it took nearly 10 hours for the FIR to reach the Court. The delay
in this case has a lot of significance since this Court finds that there has
been a deliberate insertion at the end of the complaint(Ex.P1) and an FIR
also came to be registered for the injuries sustained by A2 and A3 in
Crime No.191 of 2015. Obviously, there was a deliberation to suit the
case as projected by the prosecution and to conceal the origin of the
occurrence.
20. When the incriminating materials were put to the
accused persons, A1 to A3 gave separate written explanation about the
incident and on carefully going through the same, it is seen that D1 and
D2 had started attacking A2 and A3 and they sustained head injuries and
hence, as a private defence, A1 grabbed M.O.2 and attacked D1 and D2
and they fell down. A2 in his explanation speaks about the injury
sustained by him due to the attack by D1 and A3 speaks about the
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injuries sustained by him on the attack made by D1 and D2. It is
therefore very clear that the prosecution has completely concealed the
genesis of the case and the Investigation Officer did not even bother to
investigate the Crime No.191 of 2015. The accused persons had to mark
their discharge summary through P.W-19 and even this document was
concealed by the prosecution.
21. The learned Additional Public Prosecutor submitted that
even if the defence taken by the accused persons are taken to be true, the
nature of injuries that were sustained by D1 and D2 as spoken by P.W-12
and P.W-15, through whom the postmortem certificates were marked as
Ex.P11 and Ex.P13, shows that the accused persons had exceeded their
right of private defence and hence, they are liable to be punished under
Section 304(i) IPC.
22. It is now a settled law that if a man has a real
justification to exercise his right of private defence, he cannot be held
liable if he slightly exceeds his right of private defence, particularly
when he is face to face with a murderous attack, for these things cannot
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be weighed in golden scales. A person, who is exercising his right of
private defence, is not expected to modulate his defence step by step or
tier by tier and the Court has to look into the overall circumstances and
see if the right exercised by the accused is totally disproportionate to the
injury sought to be averted.
23. In the present case, there is already an allegation that D1
and D2 along with one Lakshmanan, had caused the murder of one
Natarajan and Nagarajan, who are the relatives of the accused persons
due to the same property dispute. It is seen that there was exchange of
words in the scene of crime and A2 and A3 had sustained head injuries
after being attacked with M.O.2 and M.O.3. As a right of private defence,
the accused persons retaliated and unfortunately, it ended in the demise
of D1 and D2. In the light of a murderous attack faced by the accused
persons, it cannot be held that they exceeded their right of private
defence.
24. The Judgment relied upon by the learned Additional
Public Prosecutor in Ranbir Singh and Others vs State of Haryana,
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reported in (2009) 16 SCC 193 and State of Rajasthan vs Manoj
Kumar, reported in (2014) 5 SCC 744, will not apply to the facts of the
present case since those were the cases, wherein, on the facts of the case,
the Court found that the accused persons had exceeded their right of
private defence.
25. It has been repeatedly held by the Apex Court that where
the prosecution has suppressed the injuries sustained by the accused, the
evidence of the eyewitness itself will become questionable and the
accused persons will be entitled for acquittal on that ground alone.
Useful reference can be made to the judgment of the Apex Court in
Lakshmi Singh and Ors. vs. State of Bihar, reported in (1976) 4 SCC
394. The relevant portion in the judgment is extracted hereunder:
“12.PW.8 Dr.S.P.Jaiswal, who had
examined Brahmdeo deceased and had conducted
the post-mortem of the deceased had also
examined the accused Dasrath Singh, whom he
identified in the court, on April 22, 1966 and found
the following injuries on his person:
“1.Bruise 3" × ½ " on the dorsal part of the right
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forearm about in the middle and there was
compound fracture of the fibula bone about in the
middle.
2.Incised wound 1" × 2 mm × skin subcutaneous
deep on the lateral part of the left upper arm, near
the shoulder joint.
3.Punctured wound 1/2" × 2 mm × 4 mm on the
lateral side of the left thigh about 5 inches below
the hip joint.
According to the doctor Injury 1 was grievous in
nature as it resulted in compound fracture of the
fibula bone. The other two injuries were also
serious injuries which had been inflicted by a
sharp-cutting weapon. Having regard to the
circumstances of the case there can be no doubt
that Dasrath Singh must have received these
injuries in the course of the assault, because it has
not been suggested or contended that the injuries
could be self-inflicted nor is it believable. In these
circumstances, therefore, it was the bounden duty
of the prosecution to give a reasonable
explanation for the injuries sustained by the
accused Dasrath Singh in the course of the
occurrence. Not only the prosecution has given no
explanation, but some of the witnesses have made
a clear statement that they did not see any injuries
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on the person of the accused. Indeed if the
eyewitnesses could have given such graphic details
regarding the assault on the two deceased and
Dasain Singh and yet they deliberately suppressed
the injuries on the person of the accused, this is a
most important circumstance to discredit the entire
prosecution case. It is well settled that fouler the
crime, higher the proof, and hence in a murder
case where one of the accused is proved to have
sustained injuries in the course of the same
occurrence, the non-explanation of such injuries
by the prosecution is a manifest defect in the
prosecution case and shows that the origin and
genesis of the occurrence had been deliberately
suppressed which leads to the irresistible
conclusion that the prosecution has not come out
with a true version of the occurrence. This matter
was argued before the High Court and we are
constrained to observe that the learned Judges
without appreciating the ratio of this Court
in Mohar Rai v. State of Bihar [AIR 1968 SC
1281 : (1968) 3 SCR 525 : 1968 Cri LJ 1479] tried
to brush it aside on most untenable grounds. The
question whether the Investigating Officer was
informed about the injuries is wholly irrelevant to
the issue, particularly when the very doctor who
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examined one of the deceased and the prosecution
witnesses is the person who examined the
appellant Dasrath Singh also. In the case referred
to above, this Court clearly observed as follows:
“The trial court as well as the High Court wholly
ignored the significance of the injuries found on
the appellants. Mohar Rai had sustained as many
as 13 injuries and Bharath Rai 14. We get it from
the evidence of PW 15 that he noticed injuries on
the person of Mohar Rai when he was produced
before him immediately after the occurrence.
Therefore the version of the appellants that they
sustained injuries at the time of the occurrence is
highly probabilised. Under these circumstances
the prosecution had a duty to explain those
injuries ... In our judgment the failure of the
prosecution to offer any explanation in that regard
shows that evidence of the prosecution witnesses
relating to the incident is not true or at any rate
not wholly true. Further those injuries probabilise
the plea taken by the appellants.”
This Court clearly pointed out that where the
prosecution fails to explain the injuries on the
accused, two results follow: (1) that the evidence
of the prosecution witnesses is untrue; and (2) that
the injuries probabilise the plea taken by the
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appellants. The High Court in the present case has
not correctly applied the principles laid down by
this Court in the decision referred to above. In
some of the recent cases, the same principle was
laid down. In Puran Singh v. State of
Punjab [(1975) 4 SCC 518 : 1975 SCC (Cri) 608]
which was also a murder case, this Court, while
following an earlier case, observed as follows:
[SCC p. 531 : SCC (Cri) p. 621, para 20]
“In State of Gujarat v. Bai Fatima [(1975) 2 SCC
7 : 1975 SCC (Cri) 384] one of us (Untwalia, J.)
speaking for the Court, observed as follows: [SCC
p. 13 : SCC (Cri) p. 390, para 17]
In a situation like this when the prosecution fails to
explain the injuries on the person of an accused,
depending on the facts of each case, any of the
three results may follow:
(1) That the accused had inflicted the injuries on
the members of the prosecution party in exercise of
the right of self-defence.
(2) It makes the prosecution version of the
occurrence doubtful and the charge against the
accused cannot be held to have been proved
beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the
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four-corners of either of the first two principles
laid down by this judgment. In the instant case,
either the accused were fully justified in causing
the death of the deceased and were protected by
the right of private defence or that if the
prosecution does not explain the injuries on the
person of the deceased the entire prosecution case
is doubtful and the genesis of the occurrence is
shrouded in deep mystery, which is sufficient to
demolish the entire prosecution case.”
It seems to us 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 altercation is a very important
circumstance from which the court can draw the
following inferences:
“(1) 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
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prosecution case.”
The omission on the part of the prosecution to
explain the injuries on the person of the accused
assumes much greater importance where the
evidence consists of interested or inimical
witnesses or where the defence gives a version
which competes in probability with that of the
prosecution one. In the instant case, when it is
held, as it must be, that the appellant Dasrath
Singh received serious injuries which have not
been explained by the prosecution, then it will be
difficult for the court to rely on the evidence of
PWs 1 to 4 and 6, more particularly, when some of
these witnesses have lied by stating that they did
not see any injuries on the person of the accused.
Thus neither the Sessions Judge nor the High
Court appears to have given due consideration to
this important lacuna or infirmity appearing in the
prosecution case. We must hasten to add that as
held by this Court in State of Gujarat v. Bai
Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384]
there may be cases where the non-explanation of
the injuries by the prosecution may not affect the
prosecution case. This principle would obviously
apply to cases where the injuries sustained by the
accused are minor and superficial or where the
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evidence is so clear and cogent, so independent
and disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect of the
omission on the part of the prosecution to explain
the injuries. The present, however, is certainly not
such a case, and the High Court was, therefore, in
error in brushing aside this serious infirmity in the
prosecution case on unconvincing premises.”
26. It will also be useful to rely upon the Division Bench judgment of
this Court in V.Mohan vs. State, reported in 2018 (2) MWN (Cr.) 429 (DB) and the
relevant portions in the judgment are extracted hereunder:
“19.In the judgment reported in AIR 1954 Mad 15
[In re Boya GajjiPeddaVenkatanna @ Bodenna and
others Vs. State], a Division bench of this Court has
held in paragraphs No.11 and 12 thus:-
“11- A question of procedure has been raised in this
case and that is that the prosecution itself should have
placed all the materials relating to the injuries on the
person of DW2 and filed Ex.D.10 as an exhibit on the
prosecution side. The case of the prosecution with
regard to the injuries on D.W.2 and Ex.D10 seems to
be from the arguments of the Public Prosecutor in the
Lower Court, that these injuries were self-inflicted and
Ex.D.10 was given to provide a defence for the
accused. We do not find from the evidence any
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suggestion to support the above arguments of the
Public Prosecutor in the lower court. The Investigation
officer if he had taken a little more trouble and
investigated the case properly, would have found from
the similarity of the injuries on the deceased and DW2
and from a consultation with the doctor, that these
injuries were more likely to have been caused by the
stones than by sticks, in which case he would have
realised that the injuries on DW2 were caused at the
same time and in the same occurrence in which the
deceased was injured by stone. There would then be no
charge sheet for murder but only for rioting and
perhaps for culpable homicide not amounting to
murder even if the view was taken that the injury on the
deceased was caused by A1 exceeding his right of
defence to DW2. We have remarked on more than one
occasion that the police do not really investigate the
case but merely content themselves with the evidence of
witness readily provided by the complainant party.
12.In a complaint and counter-complaint such as
this obviously arising put of the same transaction when
the prosecution proceeds on the basis of the complaint,
we think it is the duty of the prosecution to exhibit the
counter-complaint through the police officer who
recorded it and also to prove medical certificates of
persons wounded on the opposite side also and place
before the Court a definite case which they ask it to
accept. We must deprecate the prosecution in such
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cases accepting in toto one complaint and examining
only witnesses who support it and give no explanation
at all for injuries caused to the other side. The truth in
these cases is invariably not in strict conformity with
either complaint and it is quite necessary that all the
facts are placed before the court to enable it to arrive
at the truth and a just decision. If in the present case,
Ex.D.10 was in the opinion of the investigate police a
false complaint laid for defence purposes and the
injuries on DW2 self-inflicted, the prosecution should
none the less, have file Ex.D.10 and DW2's medical
certificate asking the court to reject them. The fact that
a complaint Ex.D.10 was filed, that it was treated as
false or undetectable and that DW2 did have injuries
on his person are relevant facts which the prosecution
itself should have placed before the Court in the first
instance instead of waiting for the defence to disclose
them.”
20.We are fully agreeable with the above judgment
and in the instant case, the prosecution has not placed
the true version before the Court as regards the
accused sustaining injuries and the case in counter in
the first instance and only cited some interested
witnesses, who are supporting the prosecution case and
the prosecution also had failed to show who are the
aggressors and only from the evidence of the
prosecution witnesses, it is revealed that only the
prosecution party were the aggressors. In the absence
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of any materials for the Court to come to the
conclusion that whether the accused have exercised
right of defence and while exercising such right, had
they exceeded the private defence or not and only on
such consideration, the Court can come to the right
conclusion whereas the prosecution has suppressed
one version and projected the other. It is highly
difficult to base a conviction on the accused based on
one version of the prosecution. Therefore, we are of the
view that the prosecution having failed to produce
materials with regard to the counter case and that it
failed to explain the injuries sustained by the accused,
more particularly, on the basis of the homicidal death
of the deceased, guilt cannot inferred as against the
accused on the basis of the interested witnesses and
their evidence is also highly doubtful in view of the
serious discrepancies noted above. Hence, the accused
are entitled to benefit of doubt.”
27. In view of the above discussion, we have no hesitation
in interfering with the judgment and order passed by the Court below and
setting aside the same and acquitting the accused persons from all
charges. It is brought to our notice that A1 died during the pendency of
this appeal on 23.07.2021 and the death certificate was also produced
before this Court. Hence, this appeal stands abated insofar as A1 is
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concerned. The present appeal confines itself only to A2 and A3.
28. In the result,
(i) This criminal appeal stands allowed.
(ii) The conviction and sentence passed by the learned I-
Additional District and Sessions Court (PCR), Tiruchirappalli in S.C.No.
44 of 2019, dated 26.09.2019, is hereby set aside and the appellants/A2
and A3 are acquitted of all charges.
(iii) The bail bond executed by A2 & A3 shall stand
cancelled and fine amount, if any paid by them shall be refunded to
them.
[J.N.B, J.] & [N.A.V., J.]
18.10.2022
Index : Yes/No
Internet : Yes
PJL
To
1. The I-Additional District and Sessions Judge (PCR),
Tiruchirappalli.
2.The Inspector of Police,
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Crl.A.(MD)No.527 of 2019
Siruganur Police Station,
Trichy District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD)No.527 of 2019
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
PJL
Judgment made in
Crl.A.(MD)No.527 of 2019
18.10.2022
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