Gopal and Others vs State

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the Judgment passed in S.C. No. 124/2002 on the file of the

Additional Sessions Court,(FTC-I), Salem.

The short facts of the case relevant for the purpose of deciding this appeal are as follows:

i) The occurrence had taken place on 13.02.2000 at 4.00 p.m. near Adaiur village. Some 2 1/2 years prior to the occurrence i.e., on 13.2.2000

there was was dispute between deceased Perma Gounder and the accused with regard to pathway. Apart from this another motive is one

Kuttiyan, brother-in-law of the deceased Perma Gounder died due to electric current shock. But the villagers and deceased Perma Gounder were

scandalising that the accused were responsible for the death of Kuttaiyan.

ii) According to the prosecution, on 13.2.2000 at 4.00 p.m. the deceased was going in his T.V.S.50 moped at Amman Kovil Kaadu cart track all

the accused formed into an unlawful assembly and A1 was armed with M.O.3-Spear, A2 was armed with M.O.1-wooden reaper, A3 was armed

with M.O.2-sharp iron rod and A4 was armed with SBBL gun-M.O.4 and A5 to A7 caught hold of the deceased preventing him from moving.

The overtact attributed according to the eye witnesses P.W.1 , 3, 4 & 7 is that A1 stabbed the deceased on the left flank with M.O.3-Spear and

A2 beat with M.O.1 wooden reaper on the head of the deceased repeatedly and A3 with sharp iron rod assaulted the deceased on the forearm

and left hand and A4 brought a gun, which was snatched by A1 and fired at the deceased, who was narrowly escaped by lying down on the

ground. Thereafter, on seeing the other witnesses, the accused ran away with the weapons. Thereafter, P.W.5 took the injured-Perma Gounder to

Jalagondapuram in his motor bike and from there he took him to a private hospital at Salem. The Doctor at Bharathi Hospital at Salem examined

the deceased and issued Ex.P.24-Acident register and the wound certificate is Ex.P.25 and thereafter, intimation-Ex.P.23 was sent to the police.

iii) On 13.2.2000, at 9.00 p.m. P.W.11/Sub-Inspector of Police, Poolampatti Police Station received intimation from the hospital and went to the

hospital and recorded Ex.P.12-Complaint from the deceased and registered a case against the accused at 11.00 pm. Ex.P.13 is the First

Information Report. On 13.2.2000, P.W.14 received the First Information Report and took up investigation and went to the hospital and recorded

the statement of the deceased. On 14.2.2000 at 6.00 am P.W.14 arrested A4, A3 and A5 and on their confession seized the M.O.4-gun from A4

in the presence of witnesses. At 8.00 am, P.W.14 went to the scene of occurrence and prepared Ex.P.15-Observation Mahazar and drew rough

sketch-Ex.P.16. At 9.00 am examined P.W.1 and P.W.5 to 7 and other witnesses. On 15.2.2000, P.W.14 examined P.W.3, P.w.4 & P.W.8

and other witnesses. On 15.2.2000 at 2.30 p.m. P.W.14 arrested A2.

iv) On 12.3.2000 at 9.00 am, P.w.14 received death intimation-Ex.P.17 from the hospital and altered the case under Sections 147, 148, 324,

342, 323, 302 IPC and u/s 24(1) of Arms Act. Ex.P.18 is the altered First Information Report. P.W.14 conducted inquest between 10.00 am and

1.00 p.m. on the corpse of the deceased in the presence of the witnesses. Ex.P.20 is the inquest report. On 12.3.2000 at 4.15 p.m., P.W.9,

Dr.Vallinayagam conducted postmortem on the body of the deceased and issued Ex.P.5-Postmortem Certificate wherein he opined that the

deceased would appear to have died due to multiple injuries he had sustained.

v) On 13.3.2000, A1 surrendered before the Judicial Magistrate No. 3, Salem. On 21.3.2000, P.W.14 took police custody and on his confession

M.O.2-Iron rod, M.O.3-Spear and M.O.1-wooden reaper were seized in the presence of the witnesses. On 27.3.2000, P.w.14 gave requisition

to the Court to send the material objects for chemical analysis. On 31.3.2000, since P.W.14 retired from service, he handedover the investigation

to P.W.15-Inspector of Police On 31.5.2000, P.W.15 took up the further investigation and examined P.W.1 and recorded her further statement

and at 10.00 am seized the M.O.4-gun from A1''s house. Thereafter, he examined the witnesses. After completing the investigation, P.w.15 filed

the final report against the accused for the offences under Sections 147, 148, 341, 302, 149 IPC and u/s 27(1) of Arms Act.

vi) The case was taken on file by the learned Judicial Magistrate No. I, Sangagiri under PRC. No. 19/2000. The accused appeared before the

Judicial Magistrate on summons. Copies u/s 207 of Cr.P.C were furnished to the accused. Since the case is triable by the Court of Sessions, the

learned Judicial Magistrate had committed the case u/s 209 of Cr.P.C to the Court of Sessions.

vii) The learned Additional Sessions Judge, Salem, framed the charges u/s 147 IPC against A1 to A7, u/s 148 IPC against A1 to A4 and u/s 341

r/w 149 IPC against A1 to A7 and u/s 302 IPC against A1 to A3 and u/s 302 r/w 149 against A4 to A7 and when question, the accused pleaded

no guilty.

Viii) Before the trial Court, P.W.1 to 15 were examined and Ex.P.1 to P.26 were filed and M.O.1 to 4 were marked. When incriminating

circumstances were put to the accused u/s 313 Cr.P.C the accused denied their complicity in the crime. The accused have examined D.W.1-

Dr.Gothandaraman and marked Ex.D.1 to D.8. On the available document and oral evidences, the learned Additional Sessions Judge, Salem, has

come to a conclusion that the accused are guilty u/s 147, 148, 341, 341 r/w 149 IPC and 302 IPC and 302 r/w 149 IPC and sentenced under the

above said provisions of law against the accused. Aggrieved by the findings of the learned Additional Sessions Judge, Salem, the accused have

preferred this Appeal.

Now the point for determination in this Appeal is whether the prosecution has proved the guilt of the accused as to the charges levelled against

them beyond any reasonable doubt to warrant a conviction as indicated in the Judgment in S.c.124/2002 on the file of the Additional Sessions

Court, (FTC. No. I), Salem?

The point: We have heard the submissions of Mr. K.V. Sridharan, learned Counsel for the appellants/accused and Mr. V.R. Balasubramaian,

learned Government Advocate. We are of the constrained view that the prosecution has miserably failed to prove the guilt of the accused beyond

any reasonable doubt and consequently the accused 1 to 7 are liable to be acquitted against all the charges for the following reasons:

Ex.P.13-FIR, which was prepared on the basis of Ex.P.12-statement preferred by the deceased-Perma Gounder before P.W.14, who had

registered a case u/s 147, 148, 324, 342, 323 and 307 IPC and u/s 27(1) of Arms Act under Poolampatti Police Station Cr. No. 108/2000 on

13.2.2000 at 23.30 hours at Bharathi hospital at Salem. The accused 4 to 5 were arrested on 14.2.2000 at 6.00 am by P.W.14 and on the basis

of confession of A4, he had recovered a SBBL gun and he has received death intimation of Perma Gounder on 12.3.2000 at about 9.00 am and

he had altered the charges in Cr. No. 108/2000 to u/s 147, 142, 324, 342 , 323 and 302 IPC and u/s 27(1) of Arms Act. Ex.P.17 is the death

intimation and the express First Information Report is Ex.P.18 and accident register relating to the deceased-Perma Gounder is Ex.P.19. P.W.14

in the cross-examination would admit that at about 8.00 p.m. on 13.2.2000, he received information regarding the registration of a counter case in

cr. No. 107/2000 and he would admit that both the cases in Cr. No. 107/2000 and Cr. No. 108/2000 were investigated by him. P.W.14 would

depose that he is not aware as to whether any of the accused in the case in Cr. No. 108/2000 was admitted in Edapady Government Hospital. He

would admit that Ex.D.2 & D.3 are the rough sketches drew by him in Cr. No. 107/2000 and the observation mahazar in Cr. No. 107/2000 are

Ex.D.4 & D.5. P.W.11 is the Sub-Inspector of Police, who had registered the case under Cr. No. 108/2000 on the basis of Ex.P.12-statement

given by Parma Gounder soon after his admission in the Bharathi hospital at Salem. In the cross-examination, P.W.11 would admit that on the side

of the accused also a complaint was preferred by A2 at 7.30 p.m. on 13.2.2000 and on that basis a First Information Report was also registered

(Cr. No. 107/2000). The prosecution case is silent about the injury sustained by A2 and A3 in the same occurrence at the same time of

occurrence. But D.W.1, the then Doctor at Edapady Government Hospital would depose to the fact that on 13/14.2.2000 at about 2.30 am he

examined A1-Gopal for the injuries he had sustained on the same day i.e. on 13.2.2000 at about 3.00 p.m. at the hands of a known person near

Adaiur Amman Kaadu Village with stick and that a lacerated injury on the centre of the head measuring 3 cm x 1/2 cm x Skin deep and an

aberration on the left elbow measuring 10 x 1 cm and he voluntarily got discharged on 16.2.2000 and that Ex.D.6 is the copy of the accident

register. He has further deposed that he had examined A2/Mani on the same day at 10.20 p.m. referred by Poolampatti Police for the treatment of

some of the injuries he had sustained and that on examination A2-Mani had infromed him that he was attacked by a known person on the same

day at 4.00 p.m. with stone near Adaiur Amman kovil kaadu and on examination he could find a lacerated injury measuring 1 x 1 cm on the right

side of the chest and an aberration on the left cheek measuring 1 x 1 cm and that he was admitted as an inpatient and he got discharged himself on

15.2.2000 against the medical advice and that Ex.D.7 is the copy of the accident register pertaining to A2. Even though P.w.14 has investigated

both the cases in Cr. No. 107/2000 and Cr. No. 108/2000 and filed charge sheet in both the cases, in this case he has failed to explain how A1

and A2 got injuries in the same occurrence. It is not the case of the prosecution that A1 and A2 were injured in separate incidents. On the other

hand Ex.D.1 preferred by A2 will go to show that he had sustained injury at the hands of nine persons namely Vadivelu, Vellaiyan, Seviyappan,

Kolandaivelu, Raja, Kaliyappan, Palanisamy, Mariyappan, Mathaiyan apart from Perma Gounder-deceased and that Perma Gounder had

assaulted A1-Gopal with a koduval and that A2 was assaulted with stones by Vadivelu on the chest and P.W.4-Saviyappan has also assauted him

with stones on the cheek causing bleeding injuries and that Perma Gounder, Palanisamy also kicked him(A2) and that A1 was assaulted by

Vellaiyan, Mariyappan, Raja, Kolandaivelu and Kaliyappan with hands and stones and that he along with A1 and his wife were returning to the

house, the above said persons again assaulted them with stones and A4 who made an attempt to pacify the above said persons was also attacked

by stones and at that time his brotherSeviyappan and his uncles son Govind attacked Perma Gounder with stones and that A4 immediately went

inside his house and brought a licenced gun loaded with a bullet and thereupon he(A2) snatched the gun and fired a shot in the sky and thereafter

the accused took to their heels and afterwards, he had sent the injured-Gopal(A1) to Edapady Government Hospital and he (A2) went to the

Poolanpatti Police Station and lodged a complaint before Sub-Inspector of Police, who registered the case under Cr. No. 107/2000 u/s 147, 148,

324, 323 and 307 IPC. It is seen from Ex.D.2 that the second occurrence had taken place infront of A1''s house and the first occurrence had

taken place near the cart track as per Ex.P.16. But the prosecution has failed to explain the injuries sustained by A1 and A2 in the same

transaction. The learned Counsel for the appellant/accused relied on a decision reported in State of Kerala and Another Vs. Philomina and Others,

, wherein it has been held by the Honourable Apex Court as follows:

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 circumstances 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 or, 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.

According to P.w.14, there were two guns recovered from A4 one on the confession of A4 after his arrest on 16.3.2000 and P.W.15 has also

recovered a gun from A1. So, the recovery of the two guns itself cast a cloud of suspicion in the investigation of this case. Apart from this, there

are also discrepancies in the evidence of P.W.3, P.W.4 in respect of overtact of the accused. According to P.W.4, A5 to A7 caught hold of the

deceased to facilitate A1 to A3 to assaulted him. But neither P.W.1 nor P.W.3 have deposed to the fact that A5 to A7 facilitated A1 to A3 to

attack Perma Gounder by caught hold of him at the time of the occurrence. According to P.W.3, Perma Gounder was proceeding in his TVS.50

at the time of attack by the accused, but no TVS.50 was recovered from the place of occurrence by the Investigation Officer. In a case and

counter case, it is the duty of the prosecution to file charge sheet against the aggressor. But in this case, there is evidence to show that in the same

occurrence A1 and A2 also sustained injuries at the hands of Peruma Gounder and others and took treatment in Government Hospital as

inpatients. But the prosecution has failed to explain the injuries sustained by A1 and A2 in the occurrence, which is fatal to the prosecution case as

per the ratio-decedendi in State of Kerala and Another Vs. Philomina and Others, .

Under such circumstances, we are constrained to come to the conclusion that the prosecution has failed to prove its case beyond any

reasonable doubt and the same enures to the benefit of the accused.

In the result, the Appeal is allowed and the conviction and sentence passed in S.C. No. 124/2002 on the file of the Additional Session Court,

(FTC. No. I), Selem, is set aside and A1 to A7/appellants herein are acquitted of the charges levelled against them. Fine amount, if any paid by the

accused, is to be retuned to the accused. Bail bonds stand cancelled.