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Judgment
A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the judgment in S.C. No. 47 of 2004 on the file of the
Additional Sessions Judge, Dharapuram, by the complainant. The charge sheet was filed against A1 & A2 u/s 307 & 323 IPC.
The learned Judicial Magistrate, Dharapuram, after furnishing the copies to the accused u/s 207 of Cr.P.C., on his appearance on summons, had
committed the case to the Court of Sessions u/s 209 of Cr.P.C.
On appearance of the accused, the learned Trial Judge had framed the charges u/s 307 & 323 IPC and when questioned the accused pleaded
not guilty. On the side of the prosecution, P.W. 1 to P.W. 8 were examined and Ex. P.1 to Ex. P.7 were marked. No material objects were
marked before the Trial Court.
P.W. 1 is an injured witness. According to him, due to previous enmity in respect of bailing water from the common well on 28.3.2001 at about
11.00 pm he along with his brother went to the land and when they were irrigating the land, the accused came there and stopped the motor. When
this was questioned by P.W. 1, A1 had assaulted him on the back with stone and A2 also assaulted him on the back with stone and another
accused Rani had assaulted with stone on his left leg. The accused, thereafter, criminally intimidated P.W. 1 and had thrown him into the well.
P.W. 1 has further deposed that when he came out of the well he saw A2 beating P.W. 1 with a stick and A2 assaulting P.W. 2 with hands and
the deceased Rani had been assaulting P.W. 2 with a stone on the left cheek and that on hearing their distress call neighbours rushed to the place
of occurrence and on seeing them, the accused took to their heels. Both P.W. 1 & P.W. 2 were taken to government hospital at Dharapuram,
where they were treated as out patients. Ex. P.1 is the complaint preferred by P.W. 1.
P.W. 2 is the brother of P.W. 1. He would also corroborate the evidence of P.W. 1 and would say that at the time of occurrence A1 had
assaulted P.W. 1 with hands, the deceased Rani had assaulted P.W. 1 with stone on the left leg and A2 had assaulted P.W. 1 with stone on his
back and they have pushed P.W. 1 into the well and before P.W. 1 could claim up, A2 had assaulted him (P.W. 2) on his back with a stick and
A2 had assaulted him on the back with hands and the deceased Rani had assaulted him on the left cheek with stone causing injuries and on hearing
their distress call, witnesses Subramaniam, Kathiresan & Manivel rushed to the place of occurrence and on seeing them, the accused ran away
from the place of occurrence. Thereafter, P.W. 1 and P.W. 2 went to the Government Hospital at Dharapuram, where they were treated and on
the next day P.W. 1 had preferred a complaint with the police.
P.W. 3 is an eye witness to the occurrence. According to him, on 28/29.3.2001 at about 1.30 am, on hearing a noise near the well, he rushed
there and saw A1, A2 and the deceased Rani attacking P.W. 1. According to him, the overtact attributed to A1 is that he gave blows on the back
of P.W. 1 and A2 gave a blow on the eye of P.W. 1 and the deceased Rani pelted stone on the back of P.W. 1 and after criminally intimidating
P.W. 1, the accused pushed him into the well and A2 had assaulted P.W. 2 with a stick on his back and A1 had assaulted P.W. 1 with hands on
the back and the deceased Rani had assaulted with stone and on seeing him, the accused took to their heels.
P.W. 5 is the then Sub-Inspector of Police, Erode Taluk Police Station. On information, he had registered the statement of P.W. 1 on
29.3.2001 at Government Hospital, Dharapuram and registered a case in Erode Taluk Police Station Cr. No. 28 of 2001 u/s 323 & 324 IPC. Ex.
P.5 is the FIR. He had visited the place of occurrence and the Head Constable had prepared observation mahazar Ex. P.2 and also Ex. P.6-rough
sketch. He has also examined the Head Constable and recorded his statement.
P.W. 7 is the Investigating Officer in this case. He had altered the charges from Section 323 & 324 IPC to Section 307 & 323 IPC. Altered
FIR is Ex. P.7.
P.W. 5 is the doctor, who had examined P.W. 1 on 2.50 pm on 29.3.2001 at Government Hospital, Dharapuram and issued Ex. P.3 copy of
the accident register. He has also examined P.W. 2 on 29.3.2001 at about 2.40 am and Ex. P.4 is the copy of the accident register relating to the
injuries sustained by P.W. 2. The doctor has opined that the injuries are simple in nature.
P.W. 8 after completing the formalities had filed the charge sheet against the accused on 13.8.2002 u/s 323 & 307 IPC.
When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., the accused would deny their complicity with the crime. The
accused have exhibited Ex. D.1 to Ex. D.5, documents relating to Cr. No. 29 of 2001, the counter case filed by the accused against P.W. 1 &
P.W. 2. After scanning the evidence both oral and documentary, the learned trial Judge has come to the conclusion that the prosecution has failed
to prove the charges levelled against the accused beyond any reasonable doubt and accordingly acquitted the accused from all the charges levelled
against them, which necessitated the complainant P.W. 1 to prefer this revision.
Now the point for determination in this revision is whether the findings of the learned trial Judge is full of manifest error or perverse in nature
leading to miscarriage of justice to warrant any interference from this Court?
The Point : At the same time of occurrence the accused also sustained injuries at the hands of P.W. 1 & P.W. 2 and A1 had preferred a
counter case under Cr. No. 29 of 2001. The said fact was admitted by the Investigating Officers in this case viz., P.W. 6 & P.W. 7 in their cross-
examination. The charge sheet, FIR, rough sketch, observation mahazar and the list of material objects filed along with the charge sheet in Cr. No.
29 of 2001 were exhibited in this case on the side of the accused as Ex. D.1 to Ex. D.5. But there is no explanation given by the Investigating
officer in this case as to why the provision u/s 588(A) of the PSO was not followed in this case. The said complaint in Cr. No. 29 of 2001 was
preferred by Panneer Selvi, A1 herein. It is seen from Ex. D.2, that case was registered u/s 324 & 506(ii) IPC against Kittusamy, P.W. 1 herein
and Rangasamy - P.W. 2 herein and also against one Chinnadurai. P.W. 6, the Investigating Officer in this case, would admit that in the cross-
examination he has not filed any wound certificate in respect of the accused for the injuries they have sustained in the same occurrence. If the
prosecution fails to explain the injuries of the accused then it is fatal to the prosecution case, is the dictum laid down in State of Kerala and Another
Vs. Philomina and Others, , wherein the prosecution has failed to explain the injuries sustained by the accused at about the same time of
occurrence or in the course of alteration. The honourable Apex Court has held that the non-explanation of the injuries sustained by the accused
would amount to suppression of genesis and the origin of the occurrence itself and it throws doubt on the prosecution case, which will inure to the
benefit of the accused. The exact observation in the above said dictum runs as follows:
Particularly when the prosecution does not give any explanation for the grievous and other serious injuries on the person of Dasrath Singh. This is a
case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed
together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which
cannot be done in a criminal case....
...
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. (AIR 1968 SC 12 81 and AIER 1975 SC 1674 relied on).
...
...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 where the defence gives a version which competes in probability with that of the prosecution case.
Apart from the above said flaw the prosecution has also suffered from other infirmities like the statement of the injured P.W. 1 and P.W. 2 before
the doctor, P.W. 5, that they have been assaulted by six persons at the time of occurrence. But before the Court they would confine themselves to
three persons. The evidence of P.W. 2 will go to show that he would not have witnessed the alleged assault made by the accused on P.W. 1
because his evidence is to the effect that even before P.W. 1 could come out of the well he had seen A1 & A2 assaulting P.W. 1 with stone and
stick. Further P.W. 1 before the doctor P.W. 5 at the time of his treatment has informed that six known persons have assaulted him with aruval
which is not the case of P.W. 1. In Ex. P.4 copy of the accident register, also the doctor P.W. 5 has mentioned that P.W. 2 had informed him, at
the time of treatment, that he was assaulted by six known persons with aruval causing grievous injuries. Further no material objects were also
produced by the prosecution in this case. Under such circumstances, I do not find any illegality or manifest error or perverseness in the findings of
the learned trial Judge leading to miscarriage of justice to warrant any interference from this Court. Point is answered accordingly.
In fine, the revision is dismissed confirming the judgment of the trial Court in S.C. No. 47 of 2004 on the file of the Additional Sessions Judge,
Dharapuram.