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Judgment
A.C. Arumugaperumal Adityan,J.
The facts led the accused for conviction at the hands of the I Additional Sessions Court, which has been challenged before this Court in this
appeal are as follows.
a) There was originally seven accused cited in the First Information Report. The accused A3 Madesh and A7 Kuppan died even before the
commencement of the trial before the Sessions Court. A5, Kandhan died during the course of the trial. All the remaining accused who had faced
the trial were found guilty under Sections 302, 302 read with 149, 148, 324, 324 read with 149, 326 of I.P.C. A1 to A4 who had faced the trial
were convicted and sentenced under the above said provisions of law to undergo Life Imprisonment, one year Rigourous Imprisonment and 2
years Rigourous Imprisonment, etc.,
b) It is the case of the prosecution that the daughter of the deceased, Palani eloped with one Palanisamy, who is the son of the aunt of A1 and A2.
Since the deceased and his brothers P.Ws. 1 and 2 suspected that the accused persons are giving asylum to the said palanisamy and the daughter
of the deceased. On the date of occurrence i.e., on 07.08.1991. On hearing some noise from one Sengodan, thinking that it is the quarrel in
respect of the above said love affair, the deceased and his brothers P.W. 1 and 2 rushed to the said Sengodan''s house. On their way , the
accused persons (7 persons) came in the opposite direction and A1, A2 and one Madheswaran (deceased accused) attacked the deceased Palani
with knife on his chest and head. A1 attacked P.W.1 and A3 attacked P.W.2 with knives causing grievous injuries on them. After committing the
crime, the accused ran away from the place of occurrence. Thereafter, the deceased, P.W. 1 and P.W. 2 were taken to the Hospital, wherein
P.W. 1 preferred the complaint-Ex. P. 1 to P.W. 13, the Sub-Inspector of Police. The deceased Palani was taken to Erode Government Hospital.
From there, he was referred to Coimbatore Government Hospital, where he died on 09.08.1991.
c) Thereafter, P.W. 13, the Sub Inspector of Police has altered the charge from Section 307 I.P.C. to Section 302 I.P.C. The Inspector of Police,
Elango had taken up further investigation. He visited the place of occurrence and prepared Ex.P.2, Mahazar and had drawn a rough sketch. Then,
he examined the witnesses and recorded their statements, conducted inquest and arranged for recording dying declaration, on 08.08.1991 itself.
The accused was arrested and their confession statements were recorded. After completing the investigation, the charge sheet was filed on
10.04.1992. According to P.W.3, the Sub Inspector of Police, Thiru Elongavan-the Inspector of Police who had conducted investigation is also
now no more.
d) The case was taken on file by the Judicial Magistrate No. I, Sangagiri under PRC No. 8/92. On appearance of the accused, the learned Judicial
Magistrate furnished copies u/s 207 of Cr.P.C. and since the case is triable by the Court of Session, the learned Judicial Magistrate has committed
the case to the Court of Session u/s 209 of Cr.P.C. The learned Sessions Judge has framed charges under Sections 148, 302, 324, 302 read with
149, 326 and 323 I.P.C. against the accused and when questioned, the accused pleaded not guilty.
e) Before the trial Court, P.Ws.1 to 13 were examined and Ex. Ps. 1 to 31 and M.Os. 1 to 7 were marked on the side of the prosecution. When
the incriminating circumstances were put to the accused u/s 313 Cr.P.C., they denied the complicity with the crime.
f) After going through the oral and documentary evidence, the learned Sessions Judge has convicted A1 to A4 under Sections 148, 302, 302 read
with 149, 324, 326 and 323 of I.P.C and sentenced to undergo Life Imprisonment and various other sentences as indicated above. Aggrieved by
the findings of the learned Sessions Judge, the accused 1 to 4 have preferred this appeal.
Now the point for determination in this appeal is whether the conviction and sentence imposed by the learned Sessions Judge is sustainable for
the reasons stated in the memorandum of appeal?
2A. We have heard the submissions made by the Learned Counsel Thiru V.K.Muthusamy for the accused and Thiru. P.Kumaresan, learned
Government Advocate and considered the same.
The Point:
There are three eyewitnesses to the occurrence. They are P.Ws.1 to 3. P.Ws.1 and 2 are the brothers of the deceased Palani and they are also
injured eyewitnesses. P.W.3 is not an injured eyewitness, but he also corroborates the evidence of P.W. 1 and P.W. 2. The earliest document
available in this case is Ex.P.1, the complaint preferred by P.W.1 on 07.08.1991 at about 22.30 hours. Printed F.I.R. is Ex. P. 26. Neither
P.Ws.1 and 2 nor P.W.3 have spoken to anything about the injuries sustained by the accused in the same occurrence. P.W. 1 in the cross
examination would admit that the accused have preferred complaint against deceased Palani. P.W. 2 Ayyanar has also not deposed anything about
the injuries sustained by the accused, but he would state in the cross examination that when the accused attempted to assault the prosecution
witnesses, they retaliated in self defence. P.W.2 in the cross examination would further admit that the second accused Kandhan preferred a private
complaint against P.W. 1, PW. 2 and Sengoddan and the same was also pending before the Magistrate, Sankagiri. P.W. 1 has deposed in the
cross examination that at the time when he preferred
Ex. P. 1 complaint, his brother Ayyanar ( P.W. 2 ) has signed in the said complaint as witness. But a perusal of P.W. 1''s complaint Ex.P.1 would
go to show that P.W. 2 has not signed as a witness to the said complaint. P.W. 13, the Sub Inspector of Police who has deposed on behalf of
Elango Investigating Officer, who is now no more, has stated in the cross examination that on the basis of the complaint preferred by A1 against
the deceased Palani, P.W.1 Chinnayan, P.W. 2 Ayyanar, and one Sengoddan, a counter case has been filed in Crime No,.844/91 under Sections
324, 323 of I.P.C and Ex. D3 is the First Information report in Cr. No. 844/91.
On the side of the prosecution, the Doctor, who had examined the accused for the injuries they had sustained in the same transaction, has been
examined as P.W.9. P.W.9, the Doctor would depose that A2 Kandhan was brought to the Government Hospital, Sangiri on 7/8.08.1991 at
about 12.30 midnight. The said Knadhan (A2) has also informed the Doctor, P.W.9 that he was assaulted by a known person on 07.08.1991 at
06.00 p.m. i.e., at the same time when this occurrence in Crime No.843/91 of Kumarapalayam Police Station, also took place. The Accident
Register copy relating to A2 is Ex.P.14. A1 was admitted before the same doctor in the same hospital on 07.08.1991 at about 10.30 p.m. and
Ex.P.15 is the copy of the Accident Register relating to A1. Accused, Madheswaran was also admitted in the same hospital before the same
doctor on 7/8.08.1991 at about 12.50 midnight. Even according to the version of A2 and A3 before P.W.9, the Doctor, they were also attacked
by known persons at the same time and same place of this occurrence. Ex.P.16 is the copy of the Accident Register relating to A3. A6 Balan was
also admitted in the same hospital by the same doctor on 7/8.08.1991 at 01.00 A.M. Ex.P.17 is the copy of the Accident Register relating to a6.
Apart from them, one Pappathi, the wife of A2 Kandhan was also admitted in the same hospital by the same doctor on 7/8.08,1991 at about
12.45 midnight, for treatment to the injuries she had sustained in the same transaction. Ex.P.18 is the copy of the Accident Register relating to
Pappathi. The above said persons have sustained injuries in the same occurrence in which the prosecution witnesses 1 to 3 also sustained injuries
at the hands of the accused. The prosecution has examined P.W.9 and marked Exs.P.14 to 18, the Accident Register copy to show that the above
said accused also sustained injuries in the course of the same transaction. But neither in Ex.P.1 nor in the evidence of P.Ws.1, 2 and 3 there is
mention about the injuries sustained by the accused.
It is the bounden duty of the prosecution to give a explanation for the injuries sustained by the accused Arumugam (A1), Kandhan (A2),
Madhesh and Balan (A4) in the course of the occurrence. Not only the prosecution has given no explanation but P.W.1 to P.W.3 have made a
wrong statement that they did not see any injuries on the person of the accused. Indeed the eyewitnesses may not be able to give such graphic
details regarding the assault on the deceased and P.Ws.1 and 2 and yet, they deliberately suppressed the injuries on the person of the above
mentioned accused. This is the 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.
The most important document which cuts at the root of the prosecution case is Ex.P.11 dying declaration recorded from the deceased by the
Judicial Magistrate, P.W.7 on 08.08.1991 at 01.00 p.m. A reading of Ex.P.11 would go to show that when the deceased Palani was proceeding
to a Petal nut Shop on 07.08.1991 at 06.00 p.m., he was attacked by A2, A1 and one Periyannan. He has further stated in the dying
declaration,Ex.P.11 regarding the overt act of A2 as he had attacked him with Vegetable Cutting Knife (Aruvamanai) on the head and A1 had
stabbed with a Soori Kathi on the stomach and Periyannan had attacked with pointed weapon made of tin. The deceased has not implicated any
other accused in the dying declaration. It is most astonishing to note that in this case the said Periyannan was neither referred to in the F.I.R nor
arrayed in the charge sheet as an accused. P.Ws.1 and 2 have stated that the deceased Palani was attacked by A1 and A2 with Soori Kathi and
A4, A5 and A6 with log but there is no reference in Ex.P.11 dying declaration that A4, A5, A6 attacked the deceased with log. So, Ex.P.11 is
fatal to the case of the prosecution.
Learned Government Advocate relying on the judgment reported in Lakshmi Singh and Others Vs. State of Bihar, and contended that the non-
explanation of the injuries sustained by the accused at the same transaction is fatal to the prosecution case.
The relevant observation in the above said dictum runs as follows:
In a murder case, the non explanation of the injuries sustained by the accused at about the time of 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.
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 version which competes in probability with that of the prosecution
one.
Hence, we are of the considered opinion that the prosecution has not proved the guilt of the accused beyond reasonable doubt, and the benefit
shall inure in favour of the accused.
In the result the appeal is allowed and the conviction and sentence imposed in the judgement in S.C. No. 120 of 1992 on the file of the first
Additional Sessions Court, Salem District are set aside and the accused are acquitted of the charges. If fine amount, any paid by the accused, the
same shall be refunded. The bail bonds executed by the appellants shall stand cancelled.