Madras High Court
Alagupandi vs State Through on 22 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 12.09.2024
PRONOUNCED ON : 22.10.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
Alagupandi ... Appellant in Crl.A(MD)No.10 of 2021
Mutheeshwaran ... Appellant in Crl.A(MD)No.13 of 2021
Selvam ... Appellant in Crl.A(MD)No.16 of 2021
Thangapandi ... Appellant in Crl.A(MD)No.135 of 2021
vs
State through
The Inspector of Police,
Thirumangalam Taluk Police Station,
Madurai District.
(in Cr.No.39 of 2010) ...Respondent in all cases
COMMON PRAYER: Criminal Appeals filed under Section 374(2) of the
Criminal Procedure Code, to call for the entire records connected to the
judgment in S.C.No.423 of 2010 on the file of the I Additional District and
Sessions Judge, Madurai, dated 07.12.2020 and set aside the conviction and
sentence imposed against the appellant.
1/36
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
For Appellants : Mr.V.Kathirvelu
Senior Counsel
for Mr.R.Alagumani
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
(in all cases)
*****
COMMON JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
A complaint had been lodged before the Thirumangalam Taluk Police
Station, Madurai by PW-1, Alagammal on 14.03.2010 at around 09.30 pm,
consequent to which, FIR in Cr.No.39 of 2010 had been registered for
offences punishable under Sections 147, 148, 342, 323 and 302 IPC as
against six named accused, Mutheeshwaran (A1), Alagupandi (A2),
Thangapandi (A3), Selvam (A4), Pandiammal (A5) and Chittammal (A6).
Subsequent to investigation, final report had been filed before the Judicial
Magistrate at Thirumangalam and taken cognizance as P.R.C.No.22 of
2010. Since the offence under Section 302 IPC is triable exclusively by a
Court of Sessions, after following due procedure, the learned Judicial
Magistrate, Thirumangalam had committed the case to the Principal
Sessions Court at Madurai. It was then taken on file as S.C.No.423 of 2010
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
and made over for trial to the I Additional District and Sessions Court at
Madurai.
2.On 10.03.2015, the following charges were framed by the Court:
Charge No.1 Against A1 to A6 for offences
punishable under Section 147 IPC
Charge No.2 against A1 to A4 for offences
punishable under Section 148 IPC
Charge No.3 Against A5 and A6 for offences
punishable under Sections 148 r/w 149
IPC
Charge No.4 Against A1 to A4 for offences
punishable under Section 302 IPC
Charge No.5 Against A5 and A6 for offences
punishable under Section 302 IPC r/w
149 IPC
3.On 04.11.2020, the following additional charges were framed
against the accused:
Charge No.1 Against A5 and A6 for offences
punishable under Section 352 IPC
Charge No.2 Against A1 to A6 for offences
punishable under Section 147 IPC
Charge No.3 Against A1 to A4 for offences
punishable under Section 148 IPC
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
Charge No.4 Against A1 to A4 for offences
punishable under Section 302 IPC
Charge No.5 Against A5 and A6 for offences
punishable under Sections 302 r/w 149
IPC
4.After trial, judgment was pronounced on 07.12.2020 and A1 to A4
were found guilty and convicted for offence punishable under Section 302
IPC and were each sentenced to imprisonment for life and fine of Rs.5,000/-
in default to undergo three months simple imprisonment. A5 and A6 were
acquitted of all charges. A1 to A4 were acquitted of the charges under
Sections 147 and 148 IPC. Questioning and challenging the conviction and
sentence, A2 has filed Crl.A(MD)No.10 of 2021, A1 has filed
Crl.A(MD)No.13 of 2021, A4 has filed Crl.A(MD)No.16 of 2021 and A3
has filed Crl.A(MD)No.135 of 2021. The State has not filed any appeal
challenging the acquittal of A5 and A6 or the acquittal of A1 to A4 for
offences punishable under Sections 147 and 148 IPC.
5.Since all the four appeals arise from the same judgment, a common
judgment is passed in all the four appeals.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
6.Before proceeding further, the relationship among the parties
should also be stated:
7.A5, Pandiammal and A6 Chittammal are sisters. A2, Alagupandi,
A3, Thangapandi and A4 Selvam are the sons of A5 Pandiammal. A1
Mutheeshwaran is the son-in-law of Pandiammal. The de-facto
complainant, Alagammal (PW-1) is the wife of the deceased, Paunraj.
PW-2, Malarkodi is the daughter of PW-1 and the deceased Paunraj. PW-3
Alagu is the resident of the opposite house of the accused. He is also a
nephew of PW-1, Alagammal.
8.It is the case of the prosecution that the two daughters of A5,
Pandiammal, Pandimeena and Muthuselvi had come to their mother's house
(A5) with their newly born infants. A1 is the husband of Muthuselvi. A5,
Pandiammal washed the clothes of two young infants and poured the water
outside her house in the road. This was objected to by PW-3, Alagu, who is
the resident of the opposite house. The water further flowed down to the
neighbouring house, where, PW-1, Alagammal and her daughter, PW-2,
Malarkodi resided. There were a few skirmishes among the parties owing to
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
this act of A5.
9.On 14.03.2010 in the night around 09.00 pm, A5, Pandiammal had
similarly poured water used for washing the clothes of her young grandsons
in the road. This flowed across the house of PW-3, Alagu and reached the
house of PW-1, Algammal. This was questioned by PW-3, Alagu. There
was a wordy quarrel between A5, Pandiammal and PW-3 Alagu. PW-1
Alagammal poured sand over the said water and joined in the quarrel. A6,
Chittammal also joined. The wordy quarrel slowly escalated into minor
violence with the ladies pulling each others hair. At that time, A1 also came
to that place and it is stated that he had an aruval with him. A2 to A4 also
arrived with sticks in their hands. The deceased, Paunraj, the husband of
PW-1, Alagammal, who was inside the house came out and tried to mediate.
10.It is the case of the prosecution that at that time, Paunraj was held
by his hands by A3, Thangapandi and A1, Mutheeshwaran hit one blow on
his head with the aruval. Paunraj collapsed on the ground. It is further
alleged that A2, Alagupandi, A3 Thangapandi and A4 Selvam hit Paunraj
on his back with the sticks in their hands. Thereafter, the accused ran away.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
PW-1 Alagammal and PW-2, Malarkodi raised a cry. At that time, they
found that Paunraj had died. Thereafter, with the assistance of PW-6, Palani,
who is a brother-in-law of PW-1, Alagammal, a complaint had been lodged
before the Thirumanalgam Taluk Police Station. This complaint, during
trial, was marked as Ex-P1. Consequent to this complaint, FIR in Cr.No.39
of 2010 had been registered at 09.30 pm on 14.03.2010 for offences
punishable under Sections 147, 148, 342, 323 and 302 IPC against A1 to
A6, who had been named in the complaint.
11.As stated above, after investigation, final report was filed and it
was taken cognizance by the learned Judicial Magistrate at Thirumangalam
and later, the case was committed to the Court of Sessions and later, made
over to I Additional District and Sessions Court, Madurai and taken on file
as S.C.No.423 of 2010 and on conclusion of trial, A1 to A4 were convicted
for offence punishable under Section 302 IPC and acquitted of all other
charges framed against them and A5 and A6 were acquitted of all charges
framed against them. These Criminal Appeals have been filed by A1 to A4
questioning the said conviction and sentence.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
12.To elaborate the facts in accordance with the evidence produced
before the Court, a further narration is required.
13.PW-1 Alagammal in her evidence stated that on 14.03.2010 at
09.00 pm, her neighbour, Pandiammal (A5) poured the water used for
washing the clothes of her infants in the road. This water flowed through
the house of PW-3, Alagu, who is residing in the opposite house of A5,
Pandiammal and reached the house of PW-1, Alagammal. In her evidence,
she stated that this was questioned by PW-3, Alagu. In her cross
examination, she stated that Alagu was her nephew (nfhOe;jpahd; kfd;).
A quarrel started between A5, Pandiammal and PW-3, Alagu. It was joined
by A6, Chittammal, the younger sister of A5 and also PW-1, Alagammal
and her daughter, PW-2, Malarkodi. The quarrel escalated into violence.
PW-1 in her evidence further stated that at that time, there was a free fight
among the ladies by each pulling the other hair. A1 then came to the spot
with aruval. The husband of PW-1 and PW-2, Malarkodi tried to separate
them. At that time, it is contended that A3, Thangapandi caught the hands
of Paunraj and A1, Mutheeshwaran cut him on his head. Her husband fell
down.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
14.She further stated that A2, Alagupandi, A3, Thangapandi and A4,
Selvam hit her husband with sticks and then all the accused ran away. Her
brother-in-law, Palani, PW-6 then came to that place and PW-1 went with
him to give complaint to the Police Station. That complaint was marked as
Ex-P1. PW-1 identified the clothes worn by her husband as MO-1 and
MO-2. She also identified the aruval used by A1, which was produced as
MO-3. The three sticks used by A2, A3 and A4 were marked as MO-4
series.
15.During her cross examination, she admitted that at 09.30 pm,
MO-3 aruval was shown by the Inspector of Police in the Police Station. At
that time, A2, Alagupandi and A3, Thangapandi were also present in the
Police Station. A1, Mutheeshwaran was also present. She was there in the
Police Station till 10.00 in the night. A6, Chittammal was also present. She
further stated that she had also suffered injuries. She further asserted that
the accused dropped the weapon used by them at the scene of occurrence
and then ran away.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
16.PW-2, the daughter of PW-1, Malarkodi, in her evidence also
spoke about the same incident and also stated that A1 cut the deceased on
the head and that A2, A3 and A4 hit him on the back repeatedly. During her
cross examination, she stated that she suffered injuries in both her hands.
She was treated in Thirumangalam Government Hospital.
17.The prosecution also examined PW-3, Alagu, who also spoke
about the same incident and that he had witnessed the occurrence. During
his cross examination, he stated that when A1 tried to also attack PW-1, the
blow fell on the front face of A3, Thangapandi.
18.These are the eye witnesses evidence on whom the prosecution
relied to speak about the occurrence.
19.PW-4, Ayyavu, who is also a resident of the same area in his cross
examination stated that on the same night at 10.30 pm, he went to the
hospital, where he saw A3, A5 and A6, Alagupandi, Thangapandi and
Chittammal in the hospital. They had been brought by the Police.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
20.PW-5, Dhanapackiyam, who is the wife of PW-3 in her cross
examination admitted that as against her and against her husband, PW-3,
Alagu, A3 had filed a private complaint which after investigation, had been
taken cognizance as C.C.No.2 of 2017.
21.The FIR in this case was registered by PW-13, R.Alagarsamy, who
was the Sub Inspector of Police at Thirumanaglam Taluk Police Station and
who on receiving Ex-P1, complaint, registered Ex-P15, FIR on 14.03.2010
in Cr.No.39 of 2010 at 09.30 pm for offences punishable under Sections
147, 148, 342, 323 and 302 IPC. During his cross examination, he admitted
that the distance between the Police Station and the Judicial Magistrate
Court was just about 200 feet and could be reached by walking in 10
minutes. This evidence is crucial, since the FIR was received by the
Judicial Magistrate, Thirumangalam on 15.03.2010 at 05.20 am nearly about
8 hours later. No credible reason had been given for this delay.
22.PW-14, Murugan was the Head Constable at Thirumangalam
Taluk Police Station and had been given the duty to hand over the FIR and
the complaint to the Judicial Magistrate. In his evidence, he stated that
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
when he went to the Court, he was informed that the Judicial Magistrate was
taking rest and therefore, he had handed over the copies at 05.30 in the
morning on 15.03.2010. During his cross examination, he stated that the
Judicial Magistrate was not on leave, but was taking rest and that the Court
staff asked him to come in the early morning.
23.The investigation was then taken over by Sulaiman, who was the
Circle Inspector for Thirumangalam Taluk Police Station on 14.03.2010.
He went to the scene of occurrence at 10.00 pm on that date. He prepared
the observation mahazar, Ex-P2 and rough sketch, Ex-P16 in the presence
of witnesses, Shanmugam (not examined) and Duraipandi (PW-7). He then
collected blood stained sand (MO-6) and sand without blood stain (MO-5)
under seizure mahazar, Ex-P3. He then conducted inquest over the dead
body at Thirumangalam Government Hospital in the presence of
panchayadars. The inquest report was marked as Ex-P17. He then
forwarded the dead body through PW-15, Rajaram, Head Constable, for
conducting postmortem. The requisition letter was marked as Ex-P13.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
24.The postmortem was conducted by Dr.Pandi, PW-l2, who issued
the postmortem report, Ex-P14. In the postmortem report, the following
injuries were noted:
“1)A deep cut injury in the occipital area and over the
scalp measuring 9x2 cm which extended upto to the skull; and
2)Injuries in the chest and back.”
25.In the opinion given by PW-12, it was opined that the death was
due to shock and hemorrhage due to injury to brain.
26.PW-16 in his evidence thereafter stated that he recorded the
statements of Alagammal, PW-1, Palani, PW-6, Malarkodi, PW-2, Alagu,
PW-3, Ayyavu, PW-4, Dhanapackiyam, PW-5, Jeyakumar (not examined),
Dinesh Kumar (not examined), Shanmugam (not examined), Duraipandi,
PW-7, Murugan, Head Constable, PW-14, Rajaram, Head Constable,
PW-15 and Alagarsamy, Sub Inspector of Police, PW-13. He then arrested
the accused at 05.00 am on 16.03.2010. He recorded the confession
statement of A1, Mutheeshwaran. The admissible portions of the same were
marked as Ex-P18. He recovered the aruval, MO-3 under seizure mahazar,
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
Ex-P19. He also recorded the confession statement of A2, Alagupandi. The
admissible portions of the confession were marked as Ex-P20. He seized the
three wooden sticks under seizure mahazar, Ex-P21. The wooden sticks
were marked as MO-4 series. He forwarded the material objects under Ex-
P22 to the Court.
27.He then recorded the statement of Dr.Pandi, PW-12, who had
conducted the postmortem. He also recorded the statement of Annadurai
(PW-8), Wireman of Electricity Board. He then received the biological and
serological reports, Ex-P11 and Ex-P12. He then filed the final report
before the Court charging the accused with commission of offences
punishable under Sections 148, 149 and 302 IPC.
28.During his cross examination, he was questioned about the FIR in
Cr.No.42 of 2010 also registered in the same Thirumangalam Taluk Police
Station for offences punishable under Sections 294(b), 324 and 323 IPC.
When a copy of the FIR was shown, he refused to acknowledge the
correctness of such copy. He also denied knowledge about the final report
filed by him pursuant to investigation in the said FIR. He further
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
proclaimed innocence of knowledge that in that FIR, it had been alleged that
PW-3, Alagu had attacked and caused injuries to A3, Thangapandi, A5,
Pandiammal and A6, Chittammal. He further stated that unless he sees the
final report, he would not be able to state whether he had filed the final
report in the Court pursuant to investigation. He further stated that he does
not know about the Police Standing Order-588 relating to joint trial of case
and counter case. He further denied knowledge about the private complaint
which had been filed against PW-3 Alagu and PW-5 Dhanapackiyam, by
A3, Thangapandi relating to the injuries suffered by A3, A4 and A5 which
was pending as C.C.No.2 of 2017.
29.In the face of the evidence of PW-16, who denied knowledge
about the complaint given by the accused against PW-3 and PW-5, on the
side of the accused, 7 witnesses were examined and 4 documents were
marked.
30.DW-1 was A3, Thangapandi, DW-2 was A6, Chittammal and
DW-3 was A5, Pandiammal. All three of them deposed that they had
suffered injuries in the hands of PW-3, Alagu and PW-5, Dhanapackiyam.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
They alleged that it was only in such quarrel, did the deceased suffer
injuries. A3, A5 and A6 had also suffered injuries. In this connection, A3
had lodged a complaint which was marked as Ex-D1. He stated that he was
examined in hospital by the Police. DW-2, Chittammal also stated that she
had also suffered injuries. Similarly, DW-3, Pandiammal, A5, also stated
that she had suffered also injuries.
31.On the side of the accused, Dr.Ramkumar was examined as DW-4.
He was a Senior Civil Surgeon in Thirumangalam Government Hospital. He
stated that A3, Thangapandi was brought to the hospital by A2, Alagupandi
and on examination, the following injuries were found:
“1)A laceration measuring 4x2 cm in the upper lip tearing
the middle portion of the lip;
2)A laceration cut injury 3x1 cm in the upper cheek.”
32.The witness stated that A3 was sent to Government Rajaji Hospital
for further treatment. The copy of the medical register was marked as Ex-
D2. During the question put by the Court, he stated that the injuries were
fresh and could have happened as stated by A2.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
33.On the side of the accused, Dr.Priyadarshini was examined as
DW-5. She tendered evidence on the basis of the records relating to A6,
Chittammal who had been admitted to the Central Prison Hospital, Trichy.
The records for the treatment were marked as Ex-D3. She stated that A6
had suffered injuries on the left proximal ulna and stated that the injury
could have been caused by an aruval.
34.On the side of the accused, R.Krishnamurthy, who was working as
Special Sub Inspector of Police at Thirumangalam Taluk Police Station was
examined as DW-6. He stated that on the basis of the complaint given by
A3, Thangapandi, he had registered FIR in Cr.No.42 of 2010 under Sections
294(b), 324 and 323 IPC. He then arrested the accused, Alagu, PW-3 and
Dhanapackiyam, PW-5 on 17.03.2010. He handed over the investigation to
PW-16, Sulaiman, Inspector of Police. The certified copy of the FIR in
Cr.No.42 of 2010 was marked as Ex-D4. It had been mentioned that the
occurrence had happened at 09.00 pm on 14.03.2010 in the front of the
house of A3, Thangapandi.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
35.On the side of the accused, Dr.Revathy was examined as DW-7.
She was the Medical Officer in Women Prison at Trichy and she also stated
about the injuries suffered by A6, Chittammal. She identified Ex-D3 series
relating to the treatment.
36.As stated above, on analysis of the above evidence, the learned I
Additional District and Sessions Judge, Madurai, by judgment dated
07.12.2020, in S.C.No.423 of 2010 had convicted A1 to A4 for offence
punishable under Section 302 IPC and sentenced each of them to undergo
life imprisonment and fine of Rs.5,000/- each, in default to undergo three
months simple imprisonment and acquitted them of other charges and
acquitted A5 and A6 of all charges. Questioning the said conviction and
sentence, A1 to A4 have filed the present Criminal Appeals.
37.Heard arguments advanced by Mr.V.Kathirvelu, learned Senior
Counsel appearing for the appellants and Mr.T.Senthil Kumar, learned
Additional Public Prosecutor appearing for the respondent.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
38.Mr.V.Kathirvelu, learned Senior Counsel appearing for the
appellants took the Court through the facts of the case and pointed out that
the charges framed against A1 to A4 were under Sections 147, 148 and 302
IPC and against A5 and A6 were under Sections 147, 352 and 302 r/w 149
IPC. He pointed out that no charge had been framed under Section 149 IPC
against A1 to A4. He further pointed out that the trial Court had acquitted
A5 and A6 of all charges. The trial Court also acquitted A1 to A4 for
offences punishable under Sections 147 and 148 IPC. So far as the offence
under Section 302 IPC is concerned, the learned Senior Counsel pointed out
that the only evidence as against A3 was that he held the hands of the
deceased and as against A2, A3 and A4 was that, when the deceased had
fallen down, they had beaten him with sticks. The learned Senior Counsel
pointed out that as against A1, the allegation is that he had attacked the
deceased on his head with aruval. So far as A2 to A4 are concerned, the
learned Senior Counsel argued that the overt act as against them will have to
be viewed independently and it has to be explained whether the allegations
against them would cause death. He again stressed on the point that a
charge under Section 149 IPC had not been framed against them.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
39.The learned Senior Counsel then pointed out that initially there
was a wordy quarrel between A5, Pandiammal and PW-3, Alagu over A5
allegedly pouring water used for washing the clothes of her infant
grandchildren in the road. This had been objected to by PW-3, Alagu. This
incident happened around 09.00 pm on 14.03.2010. The quarrel between
A5, Pandiammal and PW-3 Alagu further escalated with the joining of A6,
Chittammal and PW-1, Alagammal. The quarrel escalated into a skirmish
with the ladies pulling each other hair. At that time, it was contended by the
prosecution that A1 came with an aruval and A2, A3 and A4 came with
sticks.
40.It was pointed out by the learned Senior Counsel that the deceased,
the husband of PW-1 and PW-2, Malarkodi, daughter of PW-1 tried to
separate the quarrelling persons. The learned Senior Counsel stated that it
is the case of the prosecution that at that time, A3 had held the hands of the
deceased and that A1 cut the deceased on the head with the aruval. After
the deceased had fallen down, it was contended by the prosecution that A2,
A3 and A4 had beaten him with sticks.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
41.The learned Senior Counsel then pointed out that A3,
Thangapandi and A6, Chittammal had also suffered aruval cuts and that fact
had been completely suppressed by the prosecution. The learned Senior
Counsel argued that the injuries on the accused must have been explained
only by the prosecution. In this case, the prosecution had suppressed the
fact that A3 and A6 had actually suffered cut injuries.
42.The learned Senior Counsel further argued that the accused had
adduced oral and documentary evidence about the registration of FIR
against PW-3, Alagu and PW-5, Dhanapackiyam, for having caused injuries
with aruval against A3 and A6. He therefore contended that once there had
been a case and counter case, a joint trial should have been conducted. He
therefore assailed the procedure adopted by the trial Court. He further
strongly condemned the denial of PW-16, Sulaimain, Investigating Officer
about the knowledge of even registration of FIR on the complaint given by
A3, Thangapandi. The learned Senior Counsel stated that the prosecution
had deliberately suppressed all these material facts.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
43.In this connection, the learned Senior Counsel appearing for the
appellants relied on the judgment of Hon'ble Full Bench of this Court in
Crl.O.P.No.4587 of 2023 etc., batch (T.Balaji and another vs State
represented by Inspector of Police, New Washermpet Police Station,
Chennai), wherein, the Hon'ble Full Bench had examined the guidelines for
investigation and trial of what is often termed as case and counter case.
44.The learned learned Senior Counsel further placed reliance on a
judgment of a Division Bench of the Principal Bench in Crl.A.No.1305 of
2022, dated 26.04.2023, Arputhan vs State represented by Inspector of
Police, D6-Anna Square Police Station, Chennai, with respect to the
injuries suffered by the accused and asserted that when the prosecution had
suppressed the genesis and origin of the occurrence and had not presented a
true version, then, the accused must be acquitted of the charges. The
learned Senior Counsel therefore asserted that the judgment and conviction
should be set aside by this Court.
45.Mr.T.Senthil Kumar, learned Additional Public Prosecutor
appearing for the respondent denied and disputed the contentions raised by
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
the learned Senior Counsel appearing for the appellants. The learned
Additional Public Prosecutor however stated that a charge under Section
149 IPC had not been framed. But, he pointed out that the prosecution had
established that there was a quarrel between A5 and PW-3, which escalated
into violence owing to A6 and PW-1 joining and led to the death of the
husband of PW-1/father of PW-2. He pointed out the evidence of PW-1 to
PW-4, who consistently stated that A1 had attacked the deceased with an
aruval and that the deceased immediately collapsed at that place and was
later beaten up by A2, A3 and A4.
46.The learned Additional Public Prosecutor pointed out the
postmortem report in this connection, Ex-P14 issued by PW-12, Dr.Pandi,
wherein, the injuries noted were consistent with the evidence of PW-1 to
PW-4. The learned Additional Public Prosecutor argued that when the
evidence of witnesses inspires confidence, there is no reason to suspect or
doubt the correctness of their evidence. The learned Additional Public
Prosecutor asserted that the accused had been correctly convicted by the
trial Court. He therefore urged that the Court should confirm the conviction
against A1 to A4 and dismiss the Criminal Appeals.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
47.We have carefully considered the arguments advanced and
perused the material records.
48.All the accused are members of one family. A2, A3 and A4 are
sons of A5. Her son-in-law is A1. Her younger sister is A6. The two
daughters of A5 had come to their mother's house, since they had two new
young infant children. On 14.03.2010 at around 09.00 pm, A5 is said to
have poured the water with which she had washed the clothes of the infant
children in the street in front of her house. PW-3 was residing in the
opposite house. He objected to this. A quarrel arose between A5 and
PW-3. The water further flowed to the house of PW-1, Alagammal, who is
also a close neighbour. Incidentally, PW-3 is her nephew (nfhOe;jpahd;
kfd;). She put sand over the water and blocked it. This gave rise to further
words being exchanged among A5, PW-3 and PW-1. At that time, A6,
younger sister of A5 also joined in the quarrel. The quarrel escalated to
such an extent that the ladies started to tear each other hair. At that time,
the deceased Paunraj, the husband of PW-1 and PW-2, Malarkodi, the
daughter of PW-1 came there and to separate the ladies.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
49.It is stated that at that time, A1 also came with an aruval and A2,
A3 and A4 came there carrying sticks. It is the case of the prosecution that
A3 held the hands of Paunraj and A1 cut him on his head. When he fell
down, it is the further case of the prosecution that A2, A3 and A4 beat him
with the sticks they had in their hands.
50.But none of the prosecution witnesses and more importantly,
PW-16, Investigating Officer, Sulaiman had spoken about the injuries
suffered by A3, Thangapandi and A6 Chittammal. They had also suffered
cut injuries which according to DW-4, Dr.Ram Kumar, and DW-5,
Dr.Priyadarshini and DW-7, Dr.Revathi had been caused by cuts with an
aruval. A3 had been treated in Thirumangalam Government Hospital. A6
had been treated in the Women Prison Hospital at Trichy. Records in that
connection had also been marked as documents, namely, Ex-D2 and Ex-D3.
51.It is also on record that A3 had given a complaint against PW-3
and PW-5 for causing injuries with an aruval on himself and on A6. In this
connection, FIR in Cr.No.42 of 2010 had been registered in the very same
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
Police Station by DW-6, R.Krishnamurthy, Special Sub Inspector of Police.
It is to be noted that the FIR in the instant case is FIR in Cr.No.39 of 2010.
Thus, at very close proximate time, two separate FIRs had been registered
relating to the same occurrence. The prosecution had deliberately
suppressed every detail about FIR in Cr.No.42 of 2010 in which the accused
had suffered aruval cut injuries.
52.PW-16, Sulaiman, Inspector of Police, had actually also filed final
report in FIR in Cr.No.42 of 2010. He belatedly denied the same in his
evidence. It is clear that the prosecution had not presented the correct
version before the Court. They consistently suppressed material evidence
and failed and explain the injuries on the accused. This creates a very
strong suspicion on the credibility of the evidence of PW-1, PW-2 and
PW-3. They were also specifically asked about the injuries which had been
suffered by A3 and A6 and they denied knowledge of the same. But the
said accused were also present in the Police Station, when PW-1 was also
present. A3 had been taken to Thirumangalam Government Hospital. He
had received treatment at the hands of Doctor at that place. A6 had been
treated at the hospital premises in Women Prison at Trichy. The Doctors,
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
who actually gave treatment had also been examined as witnesses on the
side of the accused. We find that no reason had been advanced by the
prosecution for deliberate suppression of material facts. The prosecution
had also failed to explain how A3 and A6 sustained injuries.
53.In Lakshmi Singh and others vs. State of Bihar reported in
(1976) 4 SCC 394, the Hon'ble Supreme Court had extended the benefit of
doubt, when the prosecution had failed to explain the injuries sustained by
the accused. In the instant case, the prosecution had not only suppressed
that fact, but PW-16 denied that fact, even though he, as the Investigating
Officer, had filed final report in Cr.No.42 of 2010 which was registered on a
complaint given by A3 about the injuries suffered by him and also by A6.
He had alleged that they were cut with an aruval by PW-3 Alagu. As a
matter of fact, DW-6, R.Krishnamurthy, Special Sub Inspector of Police at
the very same Police Station had deposed that he had not only registered the
FIR, but had also arrested PW-3 and PW-5.
54.In Babu Ram and others vs. State of Punjab reported in (2008) 3
SCC 709, the Hon'ble Supreme Court had held that non explanation of the
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
injuries sustained by the accused at the time of occurrence or in the course
altercation is a very important circumstance from which the Court can draw
adverse inference against the prosecution for suppressing the genesis and
origin of the occurrence and for not presenting the true version.
55.In Bhagwan Sahai and another vs. State of Rajasthan reported in
(2016) 13 SCC 171, the Hon'ble supreme Court had 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.
56.In Nand Lal and others vs. State of Chattisgarh reported in
(2023) 10 SCC 470, the Hon'ble Supreme Court had relied upon the
Lakshmi Singh case [(1976) 4 SCC 394] referred supra and held as
follows:
“26.We will first consider the issue with regard to
nonexplanation of injuries sustained by Accused No. 11 Naresh
Kumar. In the case of Lakshmi Singh and Others. v. State of
Bihar [(1976) 4 SCC 394], 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
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
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 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.
.....
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 [1991 SCC (Crl) 1048], State
of M.P. v. Mishrilal (Dead) and Ors [(2003) 9 SCC 426] and
Nagarathinam and Others. v. State (Represented by Inspector of
Police [(2006) 9 SCC 57].
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 [(2005) 10
SCC 498], 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.”
(Emphasis supplied)
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
57.In the instant case, as repeatedly pointed out, the prosecution had
completely suppressed the registration of FIR in Cr.No.42 of 2010 in the
very same Police Station. They had suppressed the fact that a complaint was
given by A3 that A3 and A6 had suffered aruval cut injuries. They had been
treated at Thirumangalam Government Hospital and at Prison Hospital at
Trichy, respectively. The prosecution had suppressed that DW-6 had
arrested PW-3 and PW-5, the accused in that case. The prosecution had
further suppressed that PW-16 had actually filed final report which had been
taken cognizance by the competent Court and the trial was pending.
58.It is also to be noted that it is the evidence of PW-13, Alagarsamy,
who was the Sub Inspector of Police, Thirumangalam Taluk Police Station
and who had registered the FIR in Cr.No.39 of 2010 that the distance
between the Police Station and the Judicial Magistrate Court is about 200
feet and could be reached in 10 minutes even by walking. The FIR in the
instant case had been registered at 09.30 pm on 14.03.2010 and was
received by the Judicial Magistrate only at 05.20 am on 15.03.2010. An
explanation had been given by PW-14, Murugan, Head Constable that the
Judicial Magistrate was taking rest. We are not inclined to accept that
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
particular reason, as it is totally unsubstantiated and not available in any
other record. It was also not spoken to by PW-16, the Investigating Officer.
59.In Rajeevan and another vs. State of Kerala reported in (2003) 3
SCC 355, the Hon'ble Supreme Court had 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 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.”
(Emphasis supplied)
60.It is thus seen that the Hon'ble Supreme Court had held that the
delay would throw serious doubt on the case of the prosecution. In the
instant case, the delay assumes significance owing to suppression of
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
registration of FIR in Cr.No.42 of 2010.
61.It is also to be noted that a Full Bench of this Court in Crl.O.P.No.
4587 of 2023 etc., batch (T.Balaji and another vs State represented by
Inspector of Police, New Washermpet Police Station, Chennai), when two
separate FIRs had been registered on the same transaction and the accused
had also suffered injuries, had examined the following questions of law:
“i. Whether the police is required to mandatorily follow the
procedure prescribed in Police Standing Order 566 while
investigating a case and case in counter?
......
iv. What is the procedure to be adopted by the Court trying
offences in cases where the prosecution files a report under
Section 173(2) Cr.P.C in both the case and case in counter?”
62.The Full Bench had answered the aforementioned questions as
follows:
“a. The police are required to mandatorily follow the
procedure prescribed in PSO 566 while investigating a case and
case in counter ie., rival versions of the same incident.
......
d. Trial of a case and counter case shall be held
simultaneously before the same Court........”
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
63.In the instant case, there has been complete violation of procedure
by PW-16, Investigating Officer. As noted, there had been suppression of
material facts which leads us to the only conclusion that the prosecution had
deliberately suppressed the genesis and origin of the occurrence.
64.As held by the Hon'ble Supreme Court that when the prosecution
has failed to explain injuries on the accused, the Court can draw adverse
inference as against the prosecution for not presenting the true version. As
held by the Hon'ble Supreme Court in Lakshmi Singh and others [(1976) 4
SCC 394] referred supra, Babu Ram and others [(2008) 3 SCC 709]
referred supra, Bhagwan Sahai and another [(2016) 13 SCC 171] referred
supra and Nand Lal and others [(2023) 10 SCC 470], referred supra , the
only course open is to grant the benefit of doubt to the accused.
65.In view of all the above reasons, since the prosecution had
suppressed the genesis and origin of the occurrence and had failed to
explain the injuries suffered by A3 and A6 at the time of occurrence and in
view of the delay in forwarding the FIR to the Magistrate, we hold that the
prosecution had failed to prove the case against the accused/appellants
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
beyond reasonable doubt.
66.In the result, Criminal Appeals are allowed. The conviction and
sentence passed by the I Additional District and Sessions Judge, Madurai in
S.C.No.423 of 2010 by judgment dated 07.12.2020 against the appellants
herein/A1 to A4 for offence punishable under Section 302 IPC is set aside.
The appellants/accused A1 to A4 are acquitted of all the charges. The
surety bonds executed shall be discharged. The fine amounts paid shall be
refunded.
[C.V.K., J.] & [J.S.N.P., J.]
22.10.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
To
1.The I Additional District and Sessions Judge, Madurai.
2.The Inspector of Police,
Thirumangalam Taluk Police Station,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
C.V.KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD. J.
cmr
Judgment made in
Crl.A(MD)Nos.10, 13, 16 and 135 of 2021
22.10.2024
https://www.mhc.tn.gov.in/judis
