Raja vs State of Tamil Nadu

T.V. Masilamani, J.—Appellant is the accused who was tried before the Sessions Judge, Dharmapuri District at Krishnagiri for an offence

u/s 302 I.P.C. The charge against him is that on 19.8.1991 at about 8.30 P.M., he due to previous enmity had hit the deceased Kariyan @

Arunachalam with a brick on his forehead nearby the public drinking water tap in the village Mahendramangalam as a result of which the said

Arunachalam died on 27.8.1991 at about 8.25 P.M. in Epidemic Disease Hospital, Bangalore. The learned trial Judge held on the basis of the

evidence on record and on the arguments advanced on either side that the accused is guilty of the offence u/s 335 I.P.C. and convicted and

sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for

two months. The accused challenges the above conviction and sentence passed against him.

The case of the prosecution may be stated briefly as follows:-

The deceased Kariyan @ Arunachalam, husband of P.W.6 Tulasiammal and brother of P.W.1 Chinnapaiyan, had reprimanded the accused on the

date of occurrence for his high handed act of abusing the witnesses Rukku, Kamalam, Shanthi, Kunji and others and breaking the pots kept by

them near the public water tap and therefore an altercation ensued between the accused and the deceased. While so, the accused had hit the

deceased with brick M.O.1 on his left eye-brow and therefore, he had fallen down. Arunachalam was taken to the Government Hospital,

Palacode where P.W.10 Dr. Murugesan had admitted him as inpatient on 19.8.1991 at 9.30 P.M. and on his examination he found that

Arunachalam sustained contusion on his left fore head. Ex.P-7 is the intimation sent by P.W.10 to Palacode Police Station and thereafter, P.W.9,

Head Constable, Arumugam went to the hospital and examined Arunachalam and obtained Ex.P-8 complaint from the injured. Further P.W.10

referred the injured Arunachalam to Government Hospital, Dhamapuri for treatment and P.W.11, Dr. Ramakrishnan treated him on 20.8.1991 and

discharged him on 21.8.1991. P.W.1 Chinnapaiyan, brother of Arunachalam, had taken the latter to Bangalore for treatment in St. John''s Hospital

where he was admitted as inpatient on 27.8.1991 at 2.30 P.M. P.W.12 Dr. Naina Rani has given evidence about the death of Arunachalam in the

hospital at about 8.25 P.M. on 27.8.1991 on account of tetanus (vide) Ex.P-12 death certificate. Thereupon, P.W.1 lodged another complaint

Ex.P-1 at Marandahalli Police Station on 28.8.1991 at 11.00 A.M and P.W.8, Ramu, Sub Inspector, received the said complaint and registered a

case u/s 302 I.P.C. in Crime No. 621/91 and thereafter sent the documents to the higher police officials as well as to the concerned Court.

P.W.13 Arumugam Inspector of police took up investigation of the case, went to the scene of occurrence at 4.00 P.M. on 28.8.1991 and

prepared Ex.P-5 observation mahazar and Ex.P-14 rough sketch. He conducted inquest over the body of the deceased between 4.45 P.M. and

7.00 P.M. and Ex.P-15 is the inquest report. Thereafter, he sent the body for post mortem. P.W.4 Dr. Vasantha Kokilam conducted autopsy on

the dead body of Arunachalam and issued the certificate Ex.P-4 with the opinion that he would appear to have died due to shock and

haemorrhage due to head injury about 32 to 40 hours prior to autopsy. The relevant injuries as per Ex.P-4 are extracted hereunder:-

External injuries:- A cut injury about 4 cm x 1-1/2 cm bone deep wound extending from above the lateral 3rd of the left Eyebrow to the left

temporal region. There is a recent scar extending from the lower end of the wound to the left cheek.

Internal Examinations:

Hyoid bone intact. Thorax:- ribs no fracture. Head:- Weight normal, cut section all the chambers filled with clotted blood about 400 grams.

Lungs:- weight normal, cut section congested. Abdomen:- Stomach weight normal, cut section congested, contains 200 ml of black coloured fluid.

Liver:- weight normal cut section congested. Spleen:- Weight normal cut section congested. Intestine:- Weight normal, cut section congested.

Urinary bladder contains about 100 ml of urine. Brain:- Weight normal cut section pale. Duramater, arachnoid matter and piamater-intact. Skull

bones: There is a depressed partial fracture about 1-1/2 inches x 1/2 inches present over the frontal bone 1-1/2"" below the left frontal eminence

upto the bone marrow. Inner table of the bone intact.

P.W.13, Inspector of Police arrested the accused on 30.8.1991 at 9.30 A.M. and sent him to judicial custody. On being identified by P.Ws.1 and

2, he recovered M.O.1 brick under Ex.P-6, mahazar. Thereafter, his successor P.W.14, Ramasamy, Inspector of Police, took up further

investigation and after completion of the same, the final report u/s 302 I.P.C. was lodged against the accused on 13.9.1991 in the Judicial

Magistrate Court, Palacode

The accused had also been examined by P.W.10 Dr. Murugesan on 20.8.1991 at 6.45 A.M. for injuries found on him (vide) Ex.P.10 accident

register copy and thereafter, P.W.9 Head Constable Adhimoolam had examined the accused in the hospital at 10.30 A.M. on the same day after

receiving the intimation from P.W.10.

While the accused was questioned with reference to the incriminating circumstance in the evidence adduced by the prosecution u/s 313 Cr.P.C.

he admitted that he had gone to the scene at the time as alleged by the prosecution, but however, he has denied the occurrence. According to him,

there was a wordy quarrel between P.W.1 Chinnapaiyan and others and he was not present during the occurrence as alleged by the prosecution.

He has stated further that since someone had thrown a brick at him, he sustained injury on his left eyebrow.

In the above circumstances, it has become necessary to consider whether the conviction and sentence passed by the trial Court u/s 335 I.P.C.

as against the accused has to be set aside as prayed for.

The homicide in this case has been proved by the evidence of P.W.4 Dr. Vasantha Kokilam and Ex.P-4 post-mortem certificate. The cause of

death, according to her, is the injury found on the left eye-brow measuring about 4 cm x 1-1/2 cm bone deep which corresponds to the internal

injury, namely, depressed partial fracture about 1-1/2"" x 1/2"" present over the frontal bone 1-1/2"" below the left frontal eminence upto the bone

marrow. The first contention of the learned counsel for the accused is that the medical evidence adduced by the prosecution is not only

contradictory but also leads to a grave suspicion in favour of the accused. He has pointed out the evidence of P.W.10 Dr. Murugesan who treated

the deceased at the earliest opportunity in the Government Hospital, Palacode on 19.8.1991 immediately after the occurrence and he has stated

categorically that only a lacerated injury over the left side of forehead 2 cm x 1/2 cm bone deep was found sutured. P.W.11 Dr. Ramakrishnan has

given a categorical opinion that the X-ray reports relating to Arunachalam did not reveal any injury to the skull bone and it is in his evidence that on

19.8.1991 Arunachalam was admitted as inpatient at 11.45 P.M. in the M.S. Ward for treatment and he treated him on 20.8.1991. Ex.P-11 is the

case sheet and M.O.6 (series) X-rays with reports corroborate the contention of P.W.11 and therefore, it is urged and in my opinion rightly by the

learned counsel for the accused that the depressed skull fracture found by P.W.4, Dr. Vasantha Kokilam at the time of post-mortem could not be

ante mortem in nature. On a careful perusal of the above evidence and upon hearing the argument of the learned counsel for the accused, I am

inclined to hold that a grave doubt in the case of the prosecution arises in this case in favour of the accused.

Nextly, the learned counsel for the accused has argued vehemently that the earliest complaint received from the deceased himself was

suppressed by the police and only after receipt of death intimation, the prosecuting agency obtained the complaint Ex.P-1 from P.W.1 on

28.8.1991 and prepared the F.I.R., Ex.P-2 so as to avoid the delay and therefore, on this ground also, the accused is entitled to the benefit of

doubt. It is in the evidence of P.W.10, Dr. Murugesan that on 19.8.1991, he sent the intimation Ex.P-7 to the police with reference to the

treatment of Arunachalam for the injuries said to have been caused on 19.8.1991 at about 8.30 P.M. by assault with brick by one known person

and P.W.9, Adhimoolam, Head Constable received the intimation Ex.P-7 and proceeded to the Government Hospital Palacode and obtained the

statement Ex.P-8 from the deceased Arunachalam at 10.15 P.M. and he has stated that he forwarded both Exs.P-7 and P-8 to Marandahalli

Police Station having jurisdiction over the place of occurrence for further action. As has been rightly argued by the learned counsel for the accused,

the prosecution has not explained anything about the fate of the complaint given by the deceased himself under Ex.P-8. It is admitted by P.W.13,

Arumugam, the then Inspector incharge of Marandahalli Police Station, that he was holding additional charge of Palacode Circle Inspector on

19.8.1991 while he was serving as Inspector of Police Kaveripattinam and he has not explained as to whether the law was set in motion on receipt

of Exs.P-7 and P-8 by Palacode Police Inspector and in this connection, it is relevant to note that only on 28.8.1991 after receiving the complaint

Ex.P-1 from P.W.1 a case was registered in Crime No. 620/91 of Marandahalli Police Station and thereafter, Ex.P-2 express F.I.R. was

prepared and sent to the Court along with Ex.P-1 and copies to the higher police officials. Though the learned Government Advocate (Criminal

side) has made a feeble attempt to show that the initial complaint given by the deceased u/s Ex.P-8 was given a number under P.I.R. 103/91 dated

20.8.1991 such an entry cannot cure the lacuna in the very basis of the case of the prosecution. In view of the decision in T.T. ANTONY v.

STATE OF KERALA 2001 AIR SCW 2571, it is well settled proposition of law that as regards cognizable offence, there can be no second

F.I.R. in respect of the same cognizable offence, same incident or occurrence. But in this case, such second F.I.R. had not only been registered,

but had also set the law in motion. In this context, it is useful to refer the decision in THULIA KALI v. STATE OF TAMIL NADU 1974 CriL.R.

30 which laid down the proposition as follows:-

The importance of the above report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging

of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was

committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence.

Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report

not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted

story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be

satisfactorily explained.

Hence, the contention of the learned counsel for the accused that inaction on the part of the investigating agency immediately after receipt of the

complaint from the deceased himself is fatal to the prosecution has to be accepted, especially, in view of ratio laid down in the said decisions and

therefore, the filing of second complaint and F.I.R., Exs.P-1 and P-2 respectively, after a considerable delay in this case cannot cure the defect in

the prosecution case. On this ground also, I find that the prosecution has miserably failed to explain satisfactorily the delay in prosecuting the case

and therefore, the accused is entitled to the benefit of doubt.

The learned counsel for the accused has urged further in his argument that the recovery of M.O.1 alleged to have been made by the prosecution

cannot be true for the simple reason that as per the evidence adduced by the prosecution in this case, the place of occurrence was cleaned on the

same day immediately after the police visited the spot and since the occurrence is said to have taken place on 19.8.1991 inasmuch as the evidence

of the prosecution is that on 28.8.2001 at about 7.15 P.M. M.O.1 brick was recovered from the place of occurrence, the allegation of the

prosecution in this respect becomes unbelievable. It is in this circumstance that the trial Court has rejected the contention of the prosecution for

conviction u/s 302 I.P.C. and held that the accused was liable to be punished only for a lesser offence u/s 335 I.P.C. As rightly argued by the

learned counsel for the accused, if the recovery of the very offensive weapon, namely, M.O.1 has not been proved beyond doubt, I am of the

opinion that the accused is entitled for an acquittal even of the charge u/s 335 I.P.C.

Nextly, the learned counsel for the accused has adverted to my attention to the evidence of P.W.1, P.W.2 and P.W.6 who are closely related

to the deceased and argued that none of the independence witnesses who are alleged to have been present in the place of occurrence has been

examined by the prosecution and therefore, the conviction rendered on the basis of the interested testimony is not sustainable. Similarly, he has

urged that the private Doctor who treated the deceased for about 3 days immediately after his discharge from the General Hospital, namely, Dr.

Siva Shanmugam of Palacode was not examined by the prosecution and therefore, the evidence of P.W.12 Dr. Naina Rani that Arunachalam died

of Tetanus would have been the probable cause of death as a result of the alleged assault by the accused with the brick M.O.1. Having regard to

the totality of the evidence adduced by the prosecution in this case, I am of the opinion that such contention also deserves consideration. On a

careful perusal of the evidence on record and in the light of the arguments advanced on either side, I find that it is difficult to uphold the conviction

of the accused even u/s 335 I.P.C. and therefore, I find that the appellant/accused is entitled for acquittal.

The appeal is allowed accordingly and the conviction and sentence passed by the trial court are set aside and the accused is acquitted of the

charge u/s 335 I.P.C. Fine amount if paid by him shall be refunded. Bail bond if any shall stand cancelled.