Madras High Court
Arputhan vs State Rep. By on 26 April, 2023
Crl.A.No.1305 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
AND
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
19.04.2023 26.04.2023
CRL.A.No.1305 of 2022
and Crl.M.P.No.19782 of 2022
Arputhan ... Appellant
Vs.
State Rep. by
Inspector of Police,
D6 Anna Square Police Station,
Chennai.
[Crime No.317 of 2020] ... Respondent
PRAYER: Criminal Appeal filed under Sections 374(2) of Criminal
Procedure Code, to set aside the judgment of the learned XV Additional
District and Sessions Judge, Chennai passed in S.C.No.203 of 2021 dated
16.12.2022 and acquit the appellant.
1/27
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For Appellant : Mr.J.I.Rajkumar Roberts
Mr.B.M.Premkumaar
Mr.A.Fernandez
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
JUDGMENT
[Judgment of the Court made by M.Nirmal Kumar, J.]
The appellant/accused in S.C.No.203 of 2021 on the file of the
learned XV Additional District and Sessions Judge, Chennai was convicted
by judgment dated 16.12.2022 and sentenced to undergo rigorous
imprisonment for life for the offence under Section 307 IPC, further to
undergo two years rigorous imprisonment for the offence under Section 324
IPC and no fine sentence imposed by the Trial Court. Against which, the
present appeal is filed.
2.Before the Trial Court, on the side of the prosecution P.W.1 to
P.W.10 were examined, Ex.P1 to Ex.P8, M.O.1 and M.O.2 were marked.
On the side of the defence, no witnesses examined and no documents
marked.
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3.The case of the prosecution in short is that on 29.06.2020 at about
8.00 a.m., the defacto complainant Rajendran, his wife/P.W.1/Jamuna along
with P.W.2/Rani, a neighbour were sitting in front of their house in veranda
and were talking, at that time the appellant/accused who is residing in the
opposite house came with a hammer and attacked P.W.1 on her head
uttering ',j;njhL brj;Jngh'. When P.W.1 attempted to ward off, her
left index finger got injured and fractured. Her husband/defacto
complainant who came to her rescue was inflicted with a cut injury on his
left ear and thereafter, the appellant fled from the scene of occurrence.
Thereafter, the defacto complainant called his friend Narasimman/P.W.6,
who came in an auto took the defacto complainant and P.W.1 to Royapettah
Government Hospital where P.W.8/Casualty Medical Doctor gave treatment
to both P.W.1 and Rajendran, recorded injuries in the Accident
Register/Ex.P4 and Ex.P5. Thereafter, the defacto complainant went to the
respondent Police Station, lodged a complaint/Ex.P1 with P.W.9, who
registered the FIR/Ex.P6. P.W.9/Sub-Inspector of Police after registration
of the case, sent FIR to the Court and informed the higher officials.
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P.W.10/Investigating Officer on receipt of the same visited the scene of
occurrence, prepared observation mahazar/Ex.P3, rough sketch/Ex.P7 in
the presence of P.W.7 and another, seized the hammer/M.O.1 and blood
stained piece of cement floor/M.O.2 by Ex.P3/Seizure Mahazar. P.W.10
examined the witnesses present in the scene of occurrence and recorded
their statement. Further, P.W.10 after getting opinion and medical report
altered the sections by alteration report/Ex.P8 and filed the charge sheet
before the concerned Court. In the meanwhile, the appellant/accused
obtained anticipatory bail and thereafter, the case was committed to the
Court of Sessions. The Trial Court on the evidence of the witnesses and the
documents and material objects, convicted the appellant as stated above.
4.The contention of the learned counsel for the appellant is that in this
case the defacto complainant/Rajendran passed away due to natural death
even before trial and hence, he could not be examined. He would submit
that in this case, P.W.1/Jamuna, wife of defacto complainant is projected as
an injured witness and P.W.2, eye witness during attack, P.W.2 not
supported the case of the prosecution. P.W.3/Sister-in-law of P.W.1
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projected as an eye witness, gave an exaggerated version. P.W.3 claims that
she along with her friend P.W.4 were chatting before their house, at that
time, they saw the occurrence, P.W.4 has not stated anything in this regard.
P.W.4 was not treated as hostile witness and the evidence of P.W.3 is contra
to evidence of P.W.4. Thus the presence of P.W.3 at the time of occurrence
is highly doubtful. P.W.5/Son-in-law of P.W.4 states that he was informed
about the incident and his presence was not spoken by any other witness,
hence his evidence is in the nature of hearsay witness. P.W.6/Auto-Driver,
friend of defacto complainant states that he enquired with P.W.1 and the
defacto complainant while proceeding to the hospital and at that time, he
was informed about the attack by the appellant. On the contrary, P.W.1
does not state anything about informing P.W.6, in view of the same, the
evidence of P.W.6 is in the nature of hearsay witness. Other than this, no
other witness have spoken about the occurrence proper. He further
submitted that P.W.8/Casualty Medical Doctor state that the injuries found
on the head of P.W.1 is in the nature of laceration and she had not noticed
fracture in P.W.1 left index finger during her examination. In this case,
admittedly the medical evidence is contra to the ocular evidence.
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5.Learned counsel further submit that from Ex.P5/Accident register, it
is seen that the defacto complainant was attacked with hammer, on the
contrary the evidence of P.W.1 is that a cut injury was inflicted using a
blade on her husband, but in this case no blade was seized as material
object. In this case, it was the appellant who was attacked by the defacto
complainant/Rajendran, P.W.1 and their son Jagan. The appellant sustained
cut injury on his neck, got admitted in Royapettah Government Hospital,
took treatment as inpatient for three days which is admitted by P.W.1,
P.W.5 and confirmed by P.W.10/Investigating Officer, who gave details
about the Accident Register No.1306037 in which the injuries sustained and
treatment given to the appellant are recorded. He further submitted that the
prosecution withheld and suppressed the true facts of the occurrence and
falsely implicated the appellant in this case. The other evidence available is
that there was a scuffle, push and pull between the appellant, defacto
complainant and P.W.1, but no investigation conducted in this regard. He
further submitted that P.W.1 admits that the appellant's first wife Ramani
who died 24 years before was P.W.1 friend and late Ramani used to
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complaint about ill treatment at the hands of appellant even a day previous
to her death. Hence, P.W.1 was having grudge against the appellant. He
further submits that the appellant is employed in Port Trust, a Government
Organization, taking this opportunity to remove him from Government
service, false case has been foisted against him. He would further submit
that non-explanation for the injury on the accused is fatal to the case of the
prosecution. The genesis of the case has been suppressed and there is no
motive for the appellant to attack P.W.1 or the said Rajendran/defacto
complainant. He further submitted that the prosecution failed to prove the
case against the appellant. He would also submit that the Trial Court
though accepts the injuries sustained by the appellant during the incident,
failed to consider the same for the reason that the appellant had not lodged
any complaint in this regard. He further submits that in the complaint there
is no mention about any person witnessing the occurrence, on the contrary
prosecution attempted to project P.W.2 to P.W.5 as eye witness, of which
P.W.2 declared hostile, P.W.4 not mentioned about the occurrence and
P.W.5 is an hearsay witness.
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6.Learned counsel for the appellant further submitted that during
examination under Section 313 of Criminal Procedure Code, the appellant
gave an explanation, as follows:
'bgha; tHf;F/ rk;gth;jd;W uhn$e;jpud;. MtuJ
kidtp $Kdh. kw;Wk; mtuJ 2tJ kfd;
b$fd; Mfpnahh;fs; jhd; vd;id
jhf;fpdhh;fs;/ uhn$e;jpud; jhd; vd;id
fGj;jpy; fPr;rp ,uj;jf; fhak; Vw;gLj;jpdhh;/'
7.Learned counsel for the appellant further submitted that the
decision referred to by the appellant before the Trial Court, namely,
Lakshmi Singh and others vs. State of Bihar reported in 1976 Supreme
[SC] 333, which is being consistently followed by the Apex Court, wherein
the Apex Court had given the benefit of doubt when the prosecution failed
to explain the injuries sustained by the accused, but the same has not been
considered by the Trial Court for the reason that the appellant/accused not
produced any wound certificate or Accident Register copy, failing to look
into the fact that P.W.1 and P.W.5 confirmed the injury sustained by the
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accused which is further confirmed by P.W.10/Investigating Officer with
the Accident Register particulars. He would further submit that there have
been considerable delay in submitting the complaint and FIR to the Court
which is fatal to the case of the prosecution, the same has not considered by
the Trial Court, on the contrary gave a finding that the non-explanation for
the injury sustained by the appellant does not affect the case of the
prosecution. He further submitted that in this case the Trial Court
convicting the appellant to life sentence under Section 307 IPC when there
is no evidence to show that there was imminent possibility of death, on the
injuries sustained by P.W.1. The Trial Court not properly considered the
evidence in its proper perspective while rendering the judgment of
conviction.
8.In support of his contentions, learned counsel for the appellant
relied on the decision of the Apex Court in the case of Babu Ram and
others vs. State of Punjab reported in [2008] 3 SCC 709 for the proposition
that non-explanation of the injuries sustained by the accused at the time of
occurrence or in the course of altercation is a very important circumstance
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from which the Court can draw adverse inference, for prosecution
suppressing the genesis and the origin of the occurrence and for not
presented the true version. He would further relied on the decision in the
case of Bhagwan Sahai and another vs. State of Rajasthan reported in
[2016] 13 SCC 171, wherein the Apex Court held that once the Court came
to a finding that the prosecution has suppressed the genesis and origin of the
occurrence and failed to explain the injuries on the person of the accused,
the probable course left open was to grant benefit of doubt to the appellant.
He further placed reliance on the decision in the case of Nand Lal and
others vs. State of Chattisgarh reported in 2023 LiveLaw [SC] 186,
wherein the Apex Court had followed the principles laid down in Lakshmi
Singh's case and acquitted the appellant for the reason prosecution had
failed to give explanation for the injuries sustained by the appellant therein.
9.Learned Additional Public Prosecutor submitted that in this case the
identity of the appellant is not disputed. The appellant, defacto complainant
and P.W.1 all residing in the same area for decades together and the
appellant is residing in the opposite house of the defacto complainant. It is
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admitted by the appellant that for the past 24 years there was some
misunderstanding between P.W.1 and the appellant due to untimely death of
appellant's first wife Ramani. He would submit that on 29.06.2020, the
appellant without any provocation seeing defacto complainant, P.W.1 and
P.W.2 having tea and chatting, the appellant presumed that they were
making comments on him, came with a hammer/M.O.1 attacked P.W.1 on
her head thrice by uttering ',j;njhL brj;Jngh'. P.W.1 also sustained
fracture on her left index finger when attempted to ward off the attack and
her husband Rajendran/defacto complainant sustained cut injury on the back
of his left ear. P.W.2, who hails from the same locality was present during
the attack, but she had not supported the case of the prosecution. In this
case, P.W.3 to P.W.5 who are also residing in the same locality spoken
about the occurrence. P.W.3 along with P.W.4 was standing in front of their
house, speaking with each other, at that time P.W.3 witnessed the
occurrence, the place of occurrence is a congested locality, with row houses
with narrow streets. P.W.3, just because sister-in-law of P.W.1, her
evidence cannot be dislodged, she had clearly stated about the attack made
by the appellant. P.W.6/Auto-Driver who took the defacto complainant and
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P.W.1 to the hospital clearly stated about the incident as informed to him.
P.W.8/Casualty Medical Doctor recorded in the Accident Register/Ex.P4
and Ex.P5 about P.W.1 and defacto complainant getting injured due to the
attack by appellant with a hammer. M.O1 which was seized from the scene
in the presence of P.W.7. P.W.5 a local resident clearly state about
witnessing the attack made by the appellant, P.W.4, another local resident
for obvious reasons not stated about the occurrence proper. P.W.9/Sub-
Inspector of Police received the complaint and registered the FIR,
P.W.10/Investigating Officer on receipt of the information and FIR, visited
the scene of occurrence, prepared observation mahazar, rough sketch in the
presence of P.W.7 and examined the witnesses present in the scene of
occurrence. After investigation, charge sheet filed, there was some delay in
sending the FIR to the Court. He further submitted due to Pandemic
situation, normal functioning was affected, hence there is a delay. The
delay properly explained. The accused had not shown any prejudice, due to
the delay.
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10.Learned Prosecutor further submit that P.W.1 is a injured witness
in this case who narrated, the attack made by the appellant using the
hammer. He would submit that the appellant not denied his presence in the
scene of occurrence, on the other hand he admits during that time he was
attacked by the defacto complainant, P.W.1 and their second son Jagan and
sustained injuries. If that is the case, it is not known as to why no complaint
lodged by the appellant, further no explanation given in this regard. He
further submitted that the Trial Court considering all these aspects and on
the evidence and materials produced had rightly convicted the appellant. In
support of his contention, learned Prosecutor relied upon the decision of the
Apex Court in the case of Arvind Kumar @ Nemichand and others vs.
State of Rajasthan reported in 2021 SCC Online SC 1099, wherein the
Apex Court observed that there is a subtle difference between a defective
investigation and one brought forth by a calculated and deliberate action or
inaction, further a defective investigation per se would not enure to the
benefit of the accused, unless it goes into the root of the case of the
prosecution. Accordingly, he prayed for dismissal of the appeal.
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11.Considering the submissions made and on perusal of the materials
placed before this Court, admittedly the appellant, defacto complainant,
P.W.1 to P.W.5 are the residents of the same locality, which is a congested
area with row houses, facing each other in a narrow lane. P.W.1 and
appellant's first wife Ramani were friends, it is admitted by P.W.1 that the
said Ramani used to make compliant about the activities of her
husband/appellant herein, even a day before her death, she had spoken ill
about her husband to P.W.1. P.W.1 had some doubt in the death of the said
Ramani and for this reason, she nursed a grudge against the appellant. This
incident happened 24 years before the occurrence. P.W.1 admits that she
had not made any complaint till date, about late Ramani complaining about
her husband. It is admitted by P.W.1 that the appellant sustained injury,
took treatment as inpatient for three days which is corroborated by the
evidence of P.W.5, further qualified P.W.10 who admits about appellant
taking treatment as inpatient and the same is recorded in Accident Register
No.1306037. Further, the appellant during examination under Section 313
Cr.P.C. stated it was the defacto complainant, P.W.1 and their second son
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Jagan, who attacked him with a sharp instrument, inflicted cut injury on his
neck, but the Trial Court failed to consider the same. The Trial Court
brushing aside this fact is not proper. From the above, it is clear that the
prosecution failed to produce the true facts and no explanation given for the
injuries sustained by the appellant, thereby adverse inference has to be
drawn as per Section 114(g) of the Indian Evidence Act, 1872. The genesis
and origin of the case has been suppressed and thereby the foundational fact
of the prosecution case becomes shaky.
12.P.W.1's evidence is with motive, suppressing the true facts had
given an exaggerated version. The evidence of P.W.1 is contra to medical
evidence of P.W.8 and Ex.P4 and Ex.P5. In this case, admittedly except for
Accident Register no wound certificate or any other medical records
produced. Now the other evidence is that of P.W.3/Sister-in-law of P.W.1.
P.W.3's evidence is that she saw the occurrence while she was speaking
with P.W.4, admittedly P.W.4 does not state any thing about the occurrence,
more so about the presence of P.W.3 at that time. The evidence of P.W.3 is
with exaggeration and contradiction which is admitted by
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P.W.10/Investigating Officer. Thus, the evidence of P.W.1 and P.W.3, who
are close relatives and interested witnesses, does not inspire confidence.
13.The Apex Court in the case of Nand Lal followed the principles
laid down in the case on Vadivelu Thevar vs. The State of Madras reported
in [1957] SCR 981 and held as follows:
'32.Undisputedly, the present case rests on the evidence
of interested witnesses. No doubt that two of them are injured
witnesses. This Court, in the case of Vadivelu Thevar v. The
State of Madras, has observed thus:
“11.......Hence, in our opinion, it is a sound and
well-established Rule of law that the court is concerned
with the quality and not with the quantity of the
evidence necessary for proving or disproving a fact.
Generally speaking, oral testimony in this context may
be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12.In the first category of proof, the court should
have no difficulty in coming to its conclusion either way
-- it may convict or may acquit on the testimony of a
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single witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or
subornation. In the second category, the court equally
has no difficulty in coming to its conclusion. It is in the
third category of cases, that the court has to be
circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial......”
33.It could thus be seen that in the category of "wholly
reliable" witness, there is no difficulty for the prosecution to
press for conviction on the basis of the testimony of such a
witness. In case of "wholly unreliable" witness, again, there is
no difficulty, inasmuch as no conviction could be made on the
basis of oral testimony provided by a "wholly unreliable"
witness. The real difficulty comes in case of the third category
of evidence which is partly reliable and partly unreliable. In
such cases, the court is required to be circumspect and separate
the chaff from the grain, and seek further corroboration from
reliable testimony, direct or circumstantial.'
In this case, admittedly the Trial Court failed to separate chaff from
grain and to find our the true facts before arriving at the conclusion and
convicting the appellant.
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14.Further, the Apex Court in Nand Lal's case, relied upon the
celebrated case of Lakshmi Singh for the proposition non-explanation of
injuries sustained by the accused and held as follows:
'26.We will first consider the issue with regard to non-
explanation of injuries sustained by Accused No. 11 Naresh
Kumar. In the case of Lakshmi Singh and Others. v. State of
Bihar, which case also arose out of a conviction Under
Section 302 read with Section 149 of the Indian Penal Code,
this Court had an occasion to consider the issue of non-
explanation of injuries sustained by the Accused. This Court,
after referring to the earlier judgments on the issue, observed
thus:
“12........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
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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.
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
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case. This principle would obviously apply to cases where the
injuries sustained by the Accused are minor and superficial or
where the 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.
27.A similar view with regard to non-explanation of
injuries has been taken by this Court in the cases of State of
Rajasthan v. Madho and Another, State of M.P. v. Mishrilal
(Dead) and Ors. and Nagarathinam and Others. v. State
(Represented by Inspector of Police)
28.Undisputedly, in the present case, the injuries
sustained by Accused No.11 Naresh Kumar cannot be
considered to be minor or superficial. The witnesses are also
interested witnesses, inasmuch as they are close relatives of
the deceased. That there was previous enmity between the two
families, on account of election of Sarpanch, has come on
record. As observed by this Court in the case of Ramashish
Ray v. Jagdish Singh, previous enmity is a double-edged
sword. On one hand, it can provide motive and on the other
hand, the possibility of false implication cannot be ruled out.'
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15.In such circumstances, looking the evidence of other witness,
namely, P.W.3/Sister-in-law of P.W.1 who has given an exaggerated and
contradictory version about the incident, P.W.4 not stated about the
presence of P.W.3, not seen the occurrence, will only fortify that the
evidence of P.W.3 is highly doubtful and it is not safe to place reliance on
the evidence of P.W.3. The evidence of P.W.5 and P.W.6 are in the nature
of hearsay. P.W.8/Casualty Medical Doctor who examined both the defacto
complainant and P.W.1 found laceration injuries which is contra to the
ocular evidence. P.W.8 admits that the injury sustained by P.W.1 on her left
index finger is grievous and other injuries are simple in nature but she fairly
admit that she had not seen the injury on the left index finger on the day of
examination. She further states that the injuries sustained by the defacto
complainant and P.W.1 would be due to scuffle and fight. The evidence of
P.W.5 confirms that there was scuffle, push and pull between the defacto
complainant and the appellant. The injuries sustained by the appellant is
not in dispute. Further, the reasoning given by the Trial Court for not
considering the injuries sustained by the appellant and discarding the
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decisions referred by the appellant is without proper reasons. It is
imperative that the complaint and FIR ought to reach the Court without any
delay. But in this case, admittedly the complaint given by the defacto
complainant and FIR reached the Court on 06.07.2020 and all other
documents reached the Court during April 2021 with a considerable delay
along with the final report. The importance and purpose of forwarding the
FIR has been explained by the Apex Court and this Court in the following
judgments:
(i) In the case of Rajeevan and another vs. State of Kerala
reported in [2003] 3 SCC 355, the Apex Court in paragraph 15
held as follows:
15.This Court in Marudanal Augusti v. State of
Kerala [(1980) 4 SCC 425 : 1980 SCC (Cri) 985] while
deciding a case which involves a question of delayed
dispatch of the FIR to the Magistrate, cautioned that such
delay would throw serious doubt on the prosecution case,
whereas in Arjun Marik v. State of Bihar [1994 Supp (2)
SCC 372 : 1994 SCC (Cri) 1551] it was reminded by this
Court that: (SCC p. 382, para 24)
“[T]he forwarding of the occurrence report is
indispensable and absolute and it has to be forwarded
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with earliest dispatch which intention is implicit with
the use of the word ‘forthwith’ occurring in Section
157 CrPC, which means promptly and without any
undue delay. The purpose and object is very obvious
which is spelt out from the combined reading of
Sections 157 and 159 CrPC. It has the dual purpose,
firstly to avoid the possibility of improvement in the
prosecution story and introduction of any distorted
version by deliberations and consultation and
secondly to enable the Magistrate concerned to have a
watch on the progress of the investigation.”
(ii) In the case of Ramachandran vs. State. By Inspector
of Police, Tirupur North Police Station, Tirupur reported in
2012 SCC Online mad 2638, this Court held as follows:
'22.No doubt, FIR is not a substantial piece of
evidence, but, in a Criminal Case, it is an important
document because it sets the Criminal Law in motion. It
contains the first, earliest version, information concerning
the commission of a cognizable offence (see Section 154,
Cr.P.C.). So much is the importance attached to such a
piece of document in a Criminal Case. That is how it has
been repeatedly held that it must reach the Law Enforcing
Authorities as well as the Court with quickest possible
time. Every delay of it must be accounted for, explained. It
is with a view to exclude, in the meanwhile, script writing
by prosecution implicating innocent persons, making
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additions and deletions. Fabrication in the FIR will tell
upon the prosecution version [see Kumar @
Thambi v. State by Inspector of Police, Dindigul Taluk
Police Station, Dindigul Dist., 2012 (2) MLJ (Crl.) 494].'
(iii) In the case of Muthukuberan vs. The State reported in
[2016] 2 LW(Crl) 100, this Court held as follows:
'12.The learned Senior Counsel appearing for the
appellant would submit that though it is alleged that the
FIR was registered at 11.00 a.m., on 30.12.2002, the same
has reached the hands of the learned Judicial Magistrate in
the same town at 5.55 p.m. on 02.01.2003, i.e., after three
days. According to the learned Senior Counsel, absolutely
there is no explanation as to why there was such inordinate
delay of about three days in forwarding the FIR to the
Court.
13.The learned Additional Public Prosecutor would
fairly submit that no evidence has been let in to explain the
said delay. As per the law laid down by the Hon'ble
Supreme Court in Thulia Kali vs. The State of Tamil
Nadu [MANU/SC/0276/1972 : 1973 AIR (SC) 501], we
are of the view that this inordinate delay in forwarding the
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Crl.A.No.1305 of 2022
FIR to the Court, which remains unexplained, creates initial
doubt in the case of the prosecution.'
Admittedly in this case, P.W.1 was nursing grudge against the
appellant for years together and P.W.3 is a close relative of P.W.1. The
ocular evidence and medical evidence are contradictory to each other.
16.Thus looking the case from any angle, it is seen that the
prosecution had suppressed the genesis and origin of the occurrence and
failed to give explanation on the injuries sustained by the accused at the
time of occurrence and in the background of well settled proposition of law
and in view of the improbabilities, the serious omissions and infirmities, the
interested nature of the evidence and other circumstances, it is clear that the
prosecution failed to prove the case against the appellant beyond reasonable
doubt.
17.Accordingly, the Criminal Appeal stands allowed. The conviction
and sentence passed by the learned XV Additional District and Sessions
Judge, Chennai in S.C.No.203 of 2021 on 16.12.2022 is set aside and the
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Crl.A.No.1305 of 2022
appellant is acquitted of all charges. Appellant is directed to be released
forthwith unless his presence/custody is required in connection with any
other case. The Bail Bond if any executed stands cancelled. Consequently,
connected miscellaneous petition is closed.
(M.S.,J.) (M.N.K.,J.)
26.04.2023
Speaking Order/Non Speaking Order
Index : Yes/No
Neutral Citation: Yes/No
cse
To
1.The Inspector of Police,
D6 Anna Square Police Station,
Chennai.
2.The XV Additional District and Sessions Judge,
Chennai.
3.The Superintendent,
Central Prison, Puzhal,
Chennai.
4.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.1305 of 2022
M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
cse
Pre-delivery Judgment made in
Crl.A.No.1305 of 2022
26.04.2023
https://www.mhc.tn.gov.in/judis
