Lingam vs State

S. Palanivelu, J.—This Criminal Appeal has been filed to call for the records in S.C. No. 75 of 2002, on the file of the Additional District-cum-Sessions Court, Virudhunagar, and set aside the judgment dated 08.01.2003 sentencing the Appellant herein to undergo five years Rigorous Imprisonment and a fine of Rs. 500/-and in default, one year Rigorous Imprisonment for the offence u/s 307 Indian Penal Code.

The case of the prosecution is summarised as follows:

2(1). P.W. 2 is the brother of P.W. 1 and P.W. 3 is the wife of P.W. 1. P.W. 1 lodged a complaint-Ex. P1 with the Respondent police stating that the accused is his neighbour, that he used to speak to P.W. 3 often and he would come to their house also, that on 15.03.1998 when P.W. 1 was in his house, he heard noise from the nearby cattle shed and himself and his brother P.W. 2 went there and happened to see both the accused and P.W. 3 were in conversation and that P. Ws.1 and 2 hauled the accused up and the accused went to his house, returned with an aruval in his hand and uttered the words (sic) and attempted to assault on the head of P.W. 1 by aruval and while P.W. 1 warded off, the aruval hit his left hand by means of which, he sustained fractures with bleeding in his fingers and he sat on the floor, that on seeing it, P.W. 2 and one Vellai junior paternal uncle of P.W. 1 came and chased him, that the accused fled away, that the injured was removed to Madurai Government Hospital and that P.W. 1 gave complaint after entrusting the bloodstained dhoti to the police. The Doctor P.W. 9 examined P.W. 1 and found the following injuries on P.W. 1 and issued Ex. P9 Wound Certificate:

(1) Cut injury left ring finger at the level of PP+ and involving (NC) (?)

(2) Cut injury left middle finger at the level of PP+ on the dorsal aspect and (?) hanging (NC) vertically.

(3) Cut injury left index finger at MCP (NC) level of joint exposed size 2 x 1 cm. bone deep.

(4) Cut injury left little finger (NC) X level 0.75 x 0.5cm bone deep.

2(2). P.W. 5, the Doctor took x-rays-Ex. P5 and has given an opinion that P.W. 1 sustained grievous injury since third and fourth and also the ring finger bone got fractured.

2(3). P.W. 7 Sub-Inspector, on receipt of intimation from the infirmary, proceeded to Madurai Government Hospital and examined P.W. 1 who was taking treatment in Ward No. 99 and also got signature as a witness from P.W. 2. Then, he came to Kariyapatti Police Station and registered a case in Crime No. 123 of 1998 u/s 307 of Indian Penal Code. He lodged FIR Ex. P7 and entrusted the case file to the Inspector of Police P.W. 8. M.O.2 is bloodstained lungi. P.W. 8 the Inspector of Police took up the case for investigation proceeded to the scene of occurrence on 15.03.1998 at 08.00 p.m. prepared Ex. P3 Observation mahazar and drew rough sketch Ex. P8 with reference to the scene of occurrence. He also lifted M. Os.3 and 4, bloodstained earth and sample earth respectively under Ex. P4 seizure mahazar. He also examined witnesses and recorded their statements. Further, he recovered M.O.1 aruval under Ex. P6 seizure mahazar in the presence of witnesses.

2(4). The next incumbent of P.W. 8, the Inspector of Police-P.W. 10 conducted further investigation. He examined Doctors and other witnesses, recorded their statements and obtained the medical certificates. Earlier to the registering of present case, the accused had given a complaint to Kariyapatti Police Station and the same was received by one Paun P.W. 7 Sub Inspector of Police who registered the said case in Crime No. 122 of 1998 u/s 341, 324 and 323 and lodged FIR Ex. P10. P.W. 10 also examined the said Paun-P.W. 7. As per his statement, the further proceedings in Crime No. 122 of 1998 were dropped as "mistake of fact". P.W. 10, after completing the investigation, laid a charge-sheet against the accused u/s 307 Indian Penal Code.

2(5). After oral evidence was over, the Appellant was questioned by the trial Court u/s 313 Code of Criminal Procedure as to the incriminating materials available against him. He denied the complicity to the offence. He had not examined any witnesses. No document was marked on his side.

The learned Additional District cum Sessions Judge, Virudhunagar, convicted the accused as above.

The point for consideration is: Whether the prosecution case has brought home the guilt of the accused beyond all reasonable doubt?

Point: The glaring feature, which is seen at the first instance in this case, is the delay in receipt of FIR by the Court. The occurrence is said to have taken place at 1.30 p.m. on 15.03.1998. But, the FIR shows that it was received by the Judicial Magistrate No. II, Virudhunagar, on 16.03.1998 at 3.30 p.m. Even though it is in the evidence of P.W. 7 that he recorded the statement of P.W. 1 on 15.03.1998 at about 05.00 p.m. and lodged a complaint at 06.30 p.m. on the same day, the FIR was received on the next day only at 3.30 p.m. by the Judicial Magistrate No. II, Virudhunagar. Neither P.W. 1 nor the concerned police personnel have come forward to explain the delay before the Court. In their evidence, nothing is available for explanation of delay. In the considered view of this Court, the above said delay remains unexplained which is fatal to the prosecution.

The next disturbing feature available in this case is the suppression of the records in Crime No. 122 of 1998. It is stated that pursuant to the complaint given by the Appellant earlier to the complaint lodged by P.W. 1, Ex. P10-FIR was lodged. But, the person who registered the case and lodged FIR, P.W. 7 has not stated about the registering of the case, lodging FIR and despatching the same to the Court. But, when he was examined in cross as to the above said records, the prosecution side has woken up and the fact came out from the mouth of P.W. 10 who would say that the case in Crime No. 122 of 1998, after investigation, was referred as "mistake of fact". It is his further evidence that the occurrence in Crime No. 122 of 1998 is not connected to the presence case, that the occurrence mentioned in the complaint by the accused was stated to have taken place in a different place and time and that the said case has come to the end. But the above said statements are palpably false because the prosecution has miserably failed to produce the records with regard to the investigation in Crime No. 122 of 1998. They are the statement of witnesses recorded u/s 161(3) Code of Criminal Procedure, Accident Register of the complainant and the copy of the referred charge-sheet. Ex. P10 is the carbon copy of the FIR which appears to have been maintained in the police station. The prosecution has not taken any initiative to send for the original FIR from the Court and connected records as afore mentioned to show the truth contained in the deposition of P.W. 10. When the accused in the present case has admittedly sustained injury in the occurrence, it is the bounden duty of the prosecution to produce the Medical Certificate and other records, if any, before the Court. But, it has miserably failed to discharge the said duty. Only if the records in crime No. 122 of 1998 were produced, then the Court can ascertain the genesis and origin of the occurrence. In the absence of the said documents, this Court is in dark to decide the above said aspect.

In this context, theLearned Counsel appearing for the Appellant relied upon a decision of the Division Bench of this Court reported in 2005 MLJ (Cri) 191 Moorthy and Anr. v. State, represented by Inspector of Police, Sembanarkoil Police Station, Sembanarkoil.) wherein, the learned Judges, in given circumstances, have observed that in the case, the police have only stated that they conducted investigation in the counter case and referred the same as "mistake of fact" and they have not marked the counter complaint and the referred report and that the prosecution has suppressed the genesis and the origin of the occurrence and thus not represented the true version and in the circumstances the Appellant accused are entitled to the benefit of doubt and they have to be acquitted. Only if the concerned police intimate the Court about the existence of the cross case or counter case, then the Court can act accordingly as per the guidelines set out by the Hon'ble Apex Court.

The Hon'ble Apex Court is of the view that the Investigation Officer common in cross cases ought to have brought to the notice of the trial Court that there were two FIRs arisen out of the same incident to avoid gross injustice to the parties concerned. Their Lordships further held in the decision reported in Kuldip Yadav and Others Vs. State of Bihar, , as follows with regard to the combined trial of the connected cases after referring to earlier decisions of the Apex Court:

The above provision has been interpreted by this Court in the following decisions. In Harjinder Singh v. State of Punjab1 the question before the Court was whether u/s 223 of the Codeit is permissible for the Court to club and consolidate the case on apolice challan and the case on a complaint where the prosecutionversions in the police challan case and the complaint case are materiallydifferent, contradictory and mutually exclusive. The question was whether the Court should in the facts and circumstances of the case direct that the two cases should be tried together but not consolidated i.e. the evidence be recorded separately in both cases and they may bedisposed of simultaneously except to the extent that the witnesses forthe prosecution which are common to both may be examined in onecase and their evidence be read as evidence in the other.

After analysing the factual details, this Court has concluded: (HarjinderSinghcase1, SCC p. 426, para 8) "8. In the facts and circumstances of this particular case we feelthat the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold hisjudgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed tosimultaneously dispose of the cases by two separate judgmentstaking care that the judgment in one case is not based on theevidence recorded in the other case.

(underlining supplied)

In Balbir v. State of Haryana this Court considered Clauses (a) and (d) of Section 223 of the Code and held that: (SCC pp. 286h-287a) "... the primary condition is that persons should have been accused either of the same offence or of different offences "committed in the course of the same transaction". The expressionadvisedly used is "in the course of the same transaction". That expression is not akin to saying "in respect of the same subject-matter". For several offences to be part of the same transaction,the test which has to be applied is whether they are so related toone another in point of purpose or of cause and effect, or asprincipal and subsidiary, so as to result in one continuous action.Thus, where there is a commonality of purpose or design, wherethere is a continuity of action, then all those persons involved canbe accused of the same or different offences "committed in the course of the same transaction".

In Lalu Prasad v. State this Court held that amalgamation of cases u/s 223 is discretionary on the part of the trial Magistrate and he has to be satisfied that persons would not be prejudicially affected and that it is expedient to amalgamate cases.

The Investigation Officer is duty bound to investigate the case and the counter case simultaneously and to act in accordance with the Police Standing Orders. The relevant portion in the Police Standing Order is extracted as under:

Investigation to be impartial.-

(2) Charge-sheet in cases and counter cases.-In a complaint and counter complaint obviously arising out of the same transaction the investigating officer should enquire into both of them and adopt one or the other of the two courses viz., (1) to charge the case where the accused were the aggressors or (2) to refer both the cases if he should find them untrue. He should place before the Court a definite case which he asks it to accept. The investigating officer in such cases should not accept into one complaint and examine only witnesses who support it and gave no explanation at all for the injuries caused to the other side. It is his duty to exhibit the counter-complaint in the Court and also to prove medical certificates of persons wounded on the opposite side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the false are placed before the Court to enable it to arrive at the truth and a just decision.

(3) If the Investigating Officer finds that the choice of either course is difficult viz., to charge one of the two cases or to throw out both, he should seek the opinion of the Public Prosecutor of the district and act accordingly. A final report should be sent in respect of the case referred as mistake of law and the complainant or the counter-complainant as the case may be, should be advised about the disposal by a notice in Form No. 90 and to seek remedy before the specified Magistrate, if he is aggrieved by the disposal of the case by the Police."

In case if he refers a case as "mistake of fact", he has to properly intimate the Court as to the result. If the counter case in entirety is burked, then the Court cannot decide who is the real culprit, by the lapse on their part. In the opinion of this Court, the rights of the Appellant have been prejudiced for not having his case records before the Court. The above said circumstances would pave way to the Court to reach a conclusion that the case as put forth by the prosecution is surrounded with suspicion and the prosecution has not cleared the same by production of relevant records and leading satisfactory evidence.

In an yet another occasion, another Division Bench of this Court in a decision reported in 2009 (1) MWN (Cr.) 423 (DB) (Sulian alias Chinnathambi S/o.Pitchamuthu and Anr. v. State of Tamil Nadu, represented by the Inspector of Police, Kattumannarkovil Police Station, Cuddalore District) has observed that when a case and counter case arise in course of same transaction, it is the duty of the prosecution to place records relating to both cases and further duty cast upon prosecution is, to point out clearly genesis of occurrence, thereby, enabling the Court to find out truth and fix aggressors.

Yet another notable discrepancy is regarding the time of occurrence as stated by P.W. 1 in his complaint and his evidence on one part and in the information before the Doctor on the other. In the complaint and in his oral evidence, he has stated that the occurrence took place at 1.30 p.m., but he informed the Doctor while he was medically examined that he was assaulted by a known person at 11.30 a.m. on 15.03.1998. Even though P.W. 10 would say that the occurrence mentioned by the accused took place in a different place and time, the intimation by P.W. 1 to the Doctor as regards the time of occurrence tallies with the time as stated by the Appellant in his complaint. In Ex. P.10-FIR, the Appellant has stated that on 15.03.1998 at about 12 noon, when he was proceeding to the shop, P.W. 1-Marimuthu the brother of P.W. 2 came, and pulled him by shirt and P.W. 2 attempted to assault him with aruval and while he warded off, he sustained injury on his left index finger. In the present case, as per the evidence of Doctor, the time of occurrence as intimated by P.W. 1 is 11.30 a.m. As per FIR, Ex. P10 the time of occurrence as mentioned by the Appellant is about 12 noon. Hence, there can be no doubt that both the occurrences had taken place in a same place and same time. Hence, it is a case and a case in counter. Therefore, the Investigation Officer is bound to follow the procedures as contained in the Police Standing Orders. But, this Court finds more in breach than in observance.

As far as the facts of the present case are concerned, when oral evidence of P. Ws.1,2&3 are subjected to a careful scrutiny, it transpires that the oral testimonies of P. Ws.2 and 3 do not duly corroborate the version of P.W. 1 in support of his case as regards the occurrence. P.W. 1 has stated about the assault by aruval repeatedly by the Appellant on him. Even though in the chief examination, P. Ws.2 and 3 have stated as if they were also present in the scene of occurrence, in the cross examination, their evidence would go to show that they were not personally aware of the occurrence. P.W. 2 says in his cross-examination that he saw the accused within 10 feet, that at the time of occurrence, they were inside the house and that the brother P.W. 1 was standing outside the house, that they saw the accused when they were coming out from the house while the accused was running after assaulting his brother and that he knows about the occurrence. When this part of evidence in cross-examination of P.W. 2 is scanned, it is to be observed that he was inside the house at the time of occurrence.

As far as the evidence of P.W. 3 is concerned, she categorically says in her cross-examination that at the time of occurrence, she was inside the house and she came out after hearing noise and that while she was seeing, P.W. 1 was lying on the floor. While the above said circumstances are carefully scrutinised, it has to be necessarily observed that both P. Ws.2 and 3 are unaware of the occurrence. Hence, the evidence of P.W. 1 alone is available for the occurrence.

It is true that P.W. 1 has sustained fractures in his palm. But, the Court is bound to ascertain who is the aggressor and the genesis and origin of the occurrence. But, on the lapse on the part of the prosecution, it has become impossible for the Court to decide the same. The necessary corollary would be, the circumstances including the occurrence as put forth by the prosecution are surrounded by doubts and they have not been removed. Yet another circumstance to be noted in this case is that even though the aruval and the bloodstained lungi were seized by the police, they were not sent to the Forensic Science Laboratory for chemical analysis. The duty is cast upon the Investigating Agency to despatch the material objects seized in the case to the chemical analysis to find out whether the blood found in the objects are of human in origin and what is the blood group. In the absence of such scientific examination, the nexus between the accused and the occurrence could not be ascertained.

A Full Bench of the Hon'ble Apex Court in a decision reported in (2010) 1 MLJ (Crl) 687 (SC)(PrabirMondalandanotherv.StateofWestBengal), has observed that the knife which was seized and was alleged to have been used for commission of offence, was never sent for forensic examination so as to connect it with the offences, that further more, the other sharp-cutting implements, which were also seized, were also not sent for such examination, even the mat which had bloodstain on it was not sent for such examination and it could, therefore, not be proved as to whether the bloodstains thereon were of human or animal in origin.

The above said observations obtained in the light of the illuminating judicial pronouncements would lead this Court to conclude that the prosecution has woefully failed to establish the charge framed against the accused.