Muthupandi (a) Thavakkalai and Others vs State

C.T. Selvam, J.—This appeal is preferred against the judgment by the learned Additional District Judge cum Fast Track Court No.II, Tirunelveli, in Special Case No. 782 of 2000, dated 31.05.2005.

Accused 1 to 5, who stand convicted for offences under Sections 148 and 307 r/w 149 IPC and sentenced to undergo Rigorous Imprisonment for one year for offences u/s 148 and 7 years Rigorous Imprisonment as also to pay a fine of Rs. 5000/- each, in default of payment of fine to undergo rigorous imprisonment for 1 year, for offences u/s 307 r/w 149 IPC, are the appellants herein.

The case of the prosecution is that, the accused armed with deadly weapons attacked the injured PW-1 Rajagopal at about 2.30 pm on 06.11.1999 at the bus stop at a village by name Kandavilai, causing multiple injuries. PW-1 survived the gruesome attack, wherein he suffered as many as 12 grave injuries involving fracture of the skull, fracture of bones on both legs as also of the wrist bones. He subsequently suffered amputation of both legs as the consequence of the attack suffered by him. The prosecution had examined 19 witnesses, marked 31 Exhibits and 10 material objects. PW-1 Rajagopal is the person who had suffered the alleged attack at the hands of the accused and he had spoken of the occurrence. He would also inform that on hearing about the incident, his brother PW-2 Mupidathi had taken him to the Government hospital at Kottar in a taxi. PW-2, the brother of PW-1 would depose of having been informed of PW-1 having been attacked and of taking PW-1 to the Government Hospital, Kottar in a taxi. Pws-3, 4, 5, 8 and 14 examined to speak of the arrest and confession of and recovery from the accused have turned hostile. PW-6 is none other than the sister of PW-1 and who was to speak of the motive for the alleged attack on PW-1, also has turned hostile. So have PW-7 & PW-13 who allegedly were witnesses to the mahazar and athatchi.

PW-9, Selvaraj is the Head Constable at Radhapuram Police Station who claims to have recorded the statement of PW-1 at Kottar Government hospital. PW-10 who is the Special Sub Inspector of Police, attached to Radhapuram Police Station has prepared printed FIR. PW-11 Sivasailam is the Court Clerk who speaks about sending the properties for chemical analysis and of receipt of the report. PW-15 is the Doctor who has admitted PW-1 at Government Hospital at 4.10 pm on 06.11.1999. PW-16 and PW-17 are the Doctors at Rajaji Hospital, Madurai and the Thiraviam Hospital, Nagercoil respectively who subsequently amputated the right and left legs of PW-1 at the ankle. PW-18 and PW-19 are the Investigating Officers. PW-19 completed the investigation and laid the charge sheet. The defence has examined 1 witness who was the head constable at Kottar Police Station on the date of occurrence i.e. 06.11.1999 and he has spoken to the maintenance of General Diary, admitted that one of the pages in the General Diary and of date 06.11.1999 have been torn but claimed that the same would be sent to the Deputy Superintendent of Police.

Heard the learned Counsel appearing for both sides and perused the material available on record.

Generally, the Court would go slow in arriving at a finding of acquittal when the lives to tell the tale. However, in the instant case, the prosecution must fail for the following reasons.

The occurrence is said to have taken place at 2.30 pm on 06.11.1999. PW-10 who is the Special Sub Inspector of Police attached to Radhapuram Police Station admits that Exh.P-11, the First Information Report recorded at 8.45 pm at hospital and registered at the Radhapuram Police station at 10.15 p.m on 06.11.99 was submitted to the Magistrate at 10.20 am on 08.11.1999. There is absolutely no explanation for the delay. PW-18, the Investigating Officer admits to not having questioned or examined any witness regarding this delay.

PW-2 admits in cross that while he and PW-1 were at hospital, the police from Kottar Police station came and questioned him, that PW-1 informed what had happened, that he also did so and the same was recorded by such police. PW-15, the Doctor who admitted PW-1 at hospital also has spoken to having intimated the Kottar Police station. DW-1, the then Head Constable, Kottar Police Station admits that the page of the General Diary relating to the date 06.11.1999 was torn, though he would attribute the reason that the same was forwarded to the Deputy Superintendent of Police. PW-9 is the Head Constable attached to the Radhapuram Police Station, within whose jurisdiction the occurrence is said to have taken place. On information from the Kottar Police Station, he had gone over to the hospital at Kottar, recorded the statement of PW-1, Exh. P-1 complaint at 8.45 pm and returned to the Radhapuram Police station at 10.15 pm. In cross, he would admit that Exh.P-1 complaint does not bear any indication that he had recorded the same and also would admit that it bore the endorsement of the Assistant Sub Inspector N.S. Pandian. A perusal of the complaint, Exh.P-1 makes it clear that the same indeed was recorded by N.S. Pandian, Assistant Sub Inspector, Radhapuram. The Investigating Officer PW-18 would admit to this position.

From the evidence of PW-1 and PW-2, it is clear that the alleged place of occurrence is a busy place and that there are several residences and shops nearby. PW-18 Investigating Officer would deny that he had not examined anybody at the shops or houses nearby and would claim to have examined one Jeyamuthu who has not been put up as a witness.

4.PW-2 would state that when he lifted his brother PW-1 onto a taxi, his clothes became blood stained and that such clothes were handed over to the police. PW- 18, the Investigating Officer would say that he had not conducted any investigation in this regard. PW-1 and PW-2 would claim to have gone to the hospital in a taxi. No driver of any taxi has been examined.

Both the First Information Report and the evidence of PW-1 would reflect the position that the accused were on motorcycles. PW-18 admits to not having conducted any enquiry towards ascertaining the number of the vehicles in which the accused came nor in seizing the vehicles.

The flaws in the prosecution case are too many to enumerate. Where the genesis of the occurrence is not clear, where it is apparent that the complaint was not registered in the manner stated by the prosecution, where there is an unexplained delay in the F.I.R reaching the Magistrate, where the natural witnesses in and around the place of occurrence have not been examined and PW-12, who has been examined as an eye witness has turned hostile. Where the witnesses to the arrest and confession of and recovery from the accused as also the witness who was to depose to the motive of the accused have turned hostile. This Court considering the perfunctory nature of the prosecution case has no alternative but to discard the same and allow this appeal.

Accordingly, this appeal stands allowed. The appellants shall stand acquitted of the charges leveled against them. Fine amount paid if any, shall be refunded to the appellants.