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Judgment
D. Murugesan, J.—The appellants, who are accused Nos. 1 to 7 in S.C. No. 123/1998 on the file of the Principal Sessions Judge,
Kamarajar District at Srivilliputtur, were tried for the charges, found guilty and sentenced to undergo imprisonment as detailed below.
Accused Charge Finding, Conviction & Sentence
Accused 1 to 7 Section 148 IPC Found guilty, convicted thereunder
and sentenced to pay Rs. 500/- each,
in default to undergo three months
simple imprisonment each.
Accused 1 to 7 Section 452 IPC Found guilty, convicted thereunder
and sentenced to undergo two years
rigorous imprisonment each and to
pay a fine of Rs. 500/- each, in
default to undergo two months simple
imprisonment each.
Accused 1 to 7 Section 302 r/w Found guilty, convicted thereunder
Section 34 IPC and each of them were sentenced to
undergo life imprisonment and to pay
Rs. 1000/-, in default to undergo six
months simple imprisonment.
Accused 1 to 7 Section 3(1) of Found not guilty and acquitted of
Tamilnadu Properties the charges.
(Prevention of Damages
& Loss) Act
Challenging the above said conviction and sentence, the appellants have preferred this appeal.
On the basis of the complaint Ex. P-1, given by P.W. 1, the Investigating Officers P.W. 14 had taken up the investigation and finally P.W. 15,
another investigation officer, laid the charge sheet against all the appellants.
Before the trial court, the prosecution has examined P.Ws. 1 to 15, marked Exs. P-1 to P-21 and M.Os. 1 to 12. The sum and substance of
the case of the prosecution is that Appellant Nos. 2 to 6 are the close relatives of Appellant No. 1 and appellant No. 7 is his close friend.
Appellant No. 1 by name Srinivasan married one Parameswari, the daughter of accused No. 5 Raman, in the year 1981. On 27.02.1997,
appellant No. 1 again married one Shanthi, P.W. 2, the daughter of the deceased Velusamy and P.W. 1, and registered the said marriage at
Tiruchuzhi Registrar''s Office. After the marriage, appellant No. 1 lived with P.W. 2 for only two days and thereafter he lived with his first wife.
The registration of the marriage with P.W. 2 was also cancelled by him on 25.06.1997. This was questioned by the deceased. As the deceased
had questioned the appellant No. 1 as to the cancellation of the registration of marriage with P.W. 2, on 25.08.1997 at about 10.45 p.m., all the
accused armed with bill hooks, knives and wooden logs entered forcibly into the house of the deceased, dragged the deceased out of the house
and inflicted injuries on various parts of his body, to which he succumbed later.
P.W. 1, the wife of the deceased, gave Ex. P-1 complaint at 00.30 hours on 26.08.1997 to P.W. 13, the Sub-Inspector of Police,
Aruppukkottai Town Police Station, based on which P.W. 13 registered a case in Crime No. 365/1997 under Sections 147, 148 and 302 IPC
and prepared Ex. P-18, the Express FIR and despatched the same to the Court. P.W. 14, Inspector of Police, took up the investigation, visited
the place of occurrence, made an observation and prepared Ex. P-4, the Observation Mahazar and drew Ex. P-20, the rough sketch. He caused
the place of occurrence photographed with the help of P.W. 7, the photographer and Ex. P-11 (series) are the photographs. He conducted inquest
over the dead body in the presence of witnesses and panchayatdars and prepared Ex. P-21, the Inquest Report. Thereafter, he sent the body to
postmortem. In the presence of P.W. 5 and another, P.W. 14 recovered M.Os.1 to 3 under Ex. P-5 mahazar, M.Os. 4 and 5 under Ex. P-6
mahazar and M.Os. 6 & 7 and under Ex. P7 mahazar and M.O. 8 under Ex. P-8 and M.Os. 9 and 10 under Ex. P-9 mahazar from the place of
occurrence.
P.W. 9, the Doctor attached to Aruppukkottai Government Hospital, conducted postmortem over the body of the deceased Velusamy and
gave Ex. P14, the postmortem certificate. In continuation of the investigation, on 27.08.1997 at about 9.00 a.m., P.W. 14 arrested accused Nos.
2 and 3 and sent them for judicial custody. On the same day, at about 10.30 a.m., P.W. 14 arrested accused Nos. 4 and 5, who were under
treatment in the Government Hospital, and sent them also for judicial custody. Thereafter, P.W. 15, Inspector of Police, took up the investigation.
Accused Nos. 1, 6 and 7 surrendered before the Court. Examining some other witnesses, P.W. 15 filed the final report before the Court.
On completion of the evidence of the prosecution, the accused were questioned u/s 313 Cr.P.C. about the incriminating circumstances found in
the evidence of prosecution witnesses and they denied each and every circumstance as false and pleaded not guilty. Though no witness was
examined on the side of the accused, three Exhibits D-1 to D-3 were marked. Considering the evidence of P.Ws. 1 and 2, coupled with the
evidence of the Doctor P.W. 9, relating to the injuries found on the deceased, the learned Sessions Judge had convicted all the appellants for the
offences referred to above and sentenced them as stated earlier. It is against the said judgment of the learned Principal Sessions Judge,
Srivilliputtur, the present appeal has been filed.
Mr. B. Sriramulu, learned senior counsel, appearing for all the appellants had submitted that even as per the prosecution, accused No. 4, by
name Sannasi and accused No. 5 Raman were injured in the same transaction and they were treated by P.W. 8, the Doctor, and Exs. P-13 and
P-12 are the Wound Certificates given to them, respectively by P.W. 8, the Doctor. Learned Senior Counsel further submitted that in fact the
injuries sustained by accused No. 5 Raman were all on vital parts and there is absolutely no explanation as to the injuries sustained by accused
Nos. 4 and 5 and in the absence of satisfactory explanation as to the injuries sustained by accused Nos. 4 and 5, the entire prosecution case
should only be disbelieved.
Adding to the above, the learned senior counsel would submit that as the occurrence had taken place just in front of the house of the deceased,
earlier a complaint was given by one Ananth, who is living just near to the place of occurrence, and the same has been suppressed by the
prosecution. He would submit that in fact, on the basis of the said complaint, accused Nos. 4 and 5 were sent for treatment to P.W. 8, the Doctor,
with Police Medical Memos and they were treated at about 00.30 hours on 26.08.1997 as per Exs. P-12 and P-13 and contrary to the above,
the prosecution has now made up a case as if accused Nos. 4 and 5 had got themselves admitted in the hospital and on receiving an intimation
from the hospital authorities, P.W. 13, the Sub-Inspector of Police by name Vijayakumar, went to the hospital and recorded a statement from
accused No. 5 at about 1.15 a.m. and registered a case in Crime No. 366/97 under Sections 341 and 354 IPC and prepared Ex. P-19 FIR. It is
the submission of the learned senior counsel, having regard to the evidence of P.W. 8, the Doctor, the above case of the prosecution about the
manner in which Ex. P-19 FIR has been registered has to be rejected totally as false. In support of his submission that the non-explanation of the
injuries found on accused 4 and 5 is fatal to the prosecution case, the learned senior counsel placed reliance on the judgments of the Supreme
Court reported in Lakshmi Singh and Others Vs. State of Bihar, and 2003 SCC (Cri) 1426 Lakhwinder Singh v. State of Punjab.
Apart from the above, the learned senior counsel would also draw our attention as to Ex. P-19, namely, the prosecution has not filed the very
complaint recorded by P.W. 13, the Sub-Inspector of Police, from accused No. 5 before the Court and consequently the said complaint was not
marked. He would further add that the original of Ex. P-19 FIR, registered by P.W. 13, has not been filed before the Court, as admittedly only
true copy has been filed and even there is no signature found in Ex. P-19. In these circumstances, according to the learned senior counsel, the very
case of the prosecution is doubtful in its entirety and there is every possibility of falsely roping in as many as accused in the case.
The learned senior counsel would also draw our attention as to the non-examination of independent witnesses. According to him, though the
neighbour by name Adaikalam was present at the time of occurrence, he has not been examined. Learned senior counsel would fairly contend that
it is not a general rule that in all cases the Court should doubt the prosecution for non-examination of independent witnesses. But, having regard to
the above factual aspects, the non-examination of the said Adaikalam assumes importance as the same throws serious doubt on the genesis of the
First Information Report.
We have heard the learned Additional Public Prosecutor on the above aspects. According to the learned Additional Public Prosecutor, Ex. P-
1 complaint, given by P.W. 1, categorically explains the injuries found on accused Nos. 4 and 5 and P.W. 2 has also spoken as to the attempt
made by the deceased on the accused. It is the submission of the learned Additional Public Prosecutor that this Court can very well rely on Ex. P-
1 and the evidence of P.W. 2 and safely come to a conclusion that the injuries found on accused Nos. 4 and 5 have been explained by the
prosecution. Insofar as the submission of the learned senior counsel as to Ex. P-19, the learned Additional Public Prosecutor has submitted that
inasmuch as the evidence of P.W. 13, the Sub-Inspector of Police who recorded the complaint from accused No. 5, is categorical that he went to
the hospital on receipt of the intimation from the hospital authorities and recorded the statement of accused No. 5 and it must necessarily be
believed and therefore the prosecution case has to be accepted. He would further submit that on the facts of the given case, non-examination of
independent witnesses would not in any way affect the case of the prosecution. On the above submissions, he supported the conviction and
sentence imposed on the appellants by the trial court.
We have carefully considered the rival submissions and perused the evidence and other materials available on record.
Before we delve upon the facts of this case, we would like to discuss the law laid down by the Apex Court as to the non-explanation of the
injuries found on the accused persons. In the case in Lakshmi Singh and Others Vs. State of Bihar, , the Supreme Court has enunciated the
principle as to the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation and
the inferences the Court can draw, as under:
...
(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.
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....
That was a case where the Supreme Court was considering an appeal on conviction u/s 302 IPC and the accused was sentenced to life
imprisonment. An argument was advanced before the Supreme Court that one of the accused had sustained injuries along with the deceased but
however the prosecution had not explained the injuries found on the accused. In that circumstances, the Supreme Court had held that non-
explanation of the injuries found on the witnesses would be fatal to the prosecution case. The very same principle has been reiterated by the
Supreme Court in yet another judgment reported in 2003 SCC (Cri) 1426 Lakhwinder Singh v. State of Punjab, wherein in paragraph No. 35 it
has been held as follows:
The next question is, in a case of this nature, whether the prosecution was bound to explain the injuries appearing on the person of Paramjit
Singh. In our view, having regard to the facts and circumstances of this case, it was the duty of the prosecution to explain the injuries suffered by
Paramjit Singh which were 19 in number and two of them resulting in fractures. It is not as if the prosecution did not know of these injuries and that
they were manufactured later to support the case of the defence. The facts disclose that even by the time the first information report was finalised
and before the special report was dispatched, the investigating officer had knowledge of the fact that Paramjit Singh had suffered injuries and was
admitted in a hospital for treatment. We, therefore, hold that the failure of the prosecution to explain the injuries on Paramjit Singh leads to the
inference that the prosecution has not disclosed the true genesis and the manner of occurrence.
A combined reading of both the above judgments would show that the burden is on the prosecution to explain to the satisfaction of the Court
as to how the accused had sustained injuries. Of course, it has been held by the Supreme Court in the decision reported in State of Gujarat Vs. Bai
Fatima and Another, that non-explanation of the injuries which are minor and superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and credit worthy, will not affect the prosecution case. It need not necessary in all cases the
non-explanation of the injuries on the accused would be fatal to the prosecution. But, there are certain exceptions, namely that the prosecution may
explain through evidence which is clear and cogent, independent and disinterested, probable, consistent and credit worthy. However, if the injuries
are serious and were inflicted on vital parts and the court comes to the conclusion that there is no clear or cogent, independent or disinterested,
probable, consistent and credit worthy evidence, it must be held that the absence of explanation as to the injuries sustained by the accused is a
serious infirmity and therefore would affect the prosecution case.
Keeping the above principles in mind, we will have to consider as to whether the prosecution has properly explained the injuries found on
accused Nos. 4 and 5 and rely upon the exceptions, which are not exhaustive, given in State of Gujarat Vs. Bai Fatima and Another, . Admittedly,
accused No. 4 sustained the following injuries, as noted in Ex. P-13 Wound Certificate issued to him by P.W. 8, the Doctor who treated him.
1) Lacerated wound 6 x 3 cm on the middle of right leg x bone deep.
2) Lacerated wound 2 x 0.5 cm on the left foot below the great toe.
3) Lacerated wound 4 x 2 cm on the right forearm x muscle deep.
The following are the injuries found on accused No. 5 Raman as per Ex. P-12, the Wound Certificate.
A curvilinear cut injury on the left parietal region of scalp on poster aspect 7 cm x Bone depth
A curvilinear cut injury on left occipital region 5 cm x bone depth.
abrasion 2 x 2cm on the lateral scapular area of the back.
Curvilinear cut injury along the left costal margin 15 cm x muscle depth.
Cut injury 4 x 2 cm near the lumbur spine latera 1 to 13, 14 vertebrae x muscle depth.
Lacerated wound 6 cm x 2 cm along the right costal margin x muscle depth.
Lacerated wound 1 cm x 0.5 cm on the right temporal region.
From the above, we find that except Injury No. 3, which is a lacerated wound on the lateral scapular area of the back, all other injuries found
on accused No. 5 are on vital parts. To find out as to whether these injuries were explained by the prosecution to the satisfaction of the Court, Ex.
P-1, the evidences of P.Ws. 1 and 2 and P.W. 8 are relevant. In Ex. P-1 complaint, the above injuries have been spoken by P.W. 1, who is the
complainant. Nevertheless, she has not come out with any such case while she was examined before the Court as to how the accused Nos. 4 and
5 sustained the injuries. From the evidence of P.W. 1, we are not able to either visualize or see any convincing explanation offered by the
prosecution as to the nature of the injuries sustained by accused Nos. 4 and 5. In the circumstances, the presence of P.W. 1 in the place of
occurrence itself is doubtful. This leads us to the evidence of P.W. 2. From the evidence of P.W. 2, we could see that the deceased had made an
attempt by sweeping aruval on the accused. In fact, it is only a general statement. It is not clear as to whether the deceased made an attempt either
on accused No. 4 or accused No. 5. That apart, in the cross-examination, P.W. 2 has totally denied as to any knowledge of the injuries either on
accused No. 4 or accused No. 5. From the evidence of P.W. 2 also, we are unable to see any explanation as to the injuries sustained by accused
Nos. 4 and 5, more particularly the injuries sustained by accused No. 5 on his vital parts.
In the above background, the evidence of P.W. 8, the doctor who treated accused Nos. 4 and 5, has relevance. The injuries sustained by
accused No. 5 is spoken to by P.W. 8 doctor and as already indicated, except injury No. 3, all other injuries are on vital parts. Inasmuch as the
evidence of P.W. 8 Doctor is categorical as to the injuries sustained by accused No. 5 and in the absence of any evidence to explain those injuries
by the prosecution, we have no hesitation to hold that the prosecution has not satisfactorily explained as to the injuries sustained by accused Nos. 4
and 5.
We must necessarily mention one more aspect in view of our finding as above. The evidence of P.W. 8 Doctor is categorical, while he states
that he treated both accused No. 4 and accused No. 5 at 00.30 a.m. on 26.08.1997 only on police medical memos. Exs. P-12 and P-13 also
reflect the same. On the other hand, we have got the evidence of P.W. 13, the Sub-Inspector of Police, who denies the above said statement of
the Doctor, P.W. 8. According to P.W. 13, on receipt of intimation from hospital authorities, he went to the hospital and recorded the statement of
accused No. 5 at about 1.15 hours. We are not inclined to accept the evidence of P.W. 13 for more than one reason. Firstly, the original
complaint given by accused No. 5 and record by P.W. 13, based on which a case in Crime No. 366/97 for the offences under Sections 341 and
354 IPC came to be registered, has not been filed before the trial court. Secondly, P.W. 13, who registered Ex. P-19 FIR, has not put his
signature and thirdly the evidence of P.W. 8 Doctor as to the medical memos sent by the police to treat accused Nos. 4 and 5 even before Ex. P-
1 was registered. In these circumstances, we have to accept the evidence of P.W. 8, the Doctor, as there was no occasion for the doctor to come
with that version before the trial court and the evidence of P.W. 8 is supported by police medical memos as well. Hence for all the above reasons,
we are convinced that the failure on the part of the prosecution to explain the injuries sustained by both accused No. 4 and accused No. 5 throws
serious doubt as to the genesis of the very FIR Ex. P-18 itself.
Further, it is to be seen that the place and the time of occurrence at which both the deceased and the accused sustained injuries are one and
the same and especially when it is the specific case of the defence that one Ananth had lodged a complaint at the earliest point of time about the
occurrence and the said complaint has been totally suppressed by the prosecution and further the said Ananth is also residing just near the scene of
occurrence and his statement u/s 161 Cr.P.C. was also recorded, in all probabilities the prosecution should have examined the said Ananth.
Law in respect of non-examination of independent witness is well settled. The Supreme Court, in the decision reported in The State of Punjab
Vs. Nazar Singh and Others, , in paragraph No. 4, had observed as under:
4... Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In
the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However,
the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of
prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime....
It is not as if that in all cases the court must reject the evidence of related or interested witnesses let in on behalf of the prosecution only on the
ground that independent witnesses were not examined; but it depends upon the facts and circumstances of each case. Having regard to the specific
defence taken by the accused that there was a complaint at the earlier point of time by the above said Ananth and even according to the
Investigation Officer P.W. 14, the said Ananth was an eye-witness to the occurrence and he also examined him and especially when the two other
witnesses are closely related to the deceased, namely P.Ws. 1 and 2, the wife and daughter of the deceased and they have not spoken anything
about the nature of the injuries sustained by accused No. 4 and 5 and their evidence does not inspire confidence, the non-examination of the said
independent witness Ananth assumes importance while judging the prosecution case. In addition to the above, even according to P.W. 14, the
Investigation Officer, one more person by name Adaikalam was present at the scene of occurrence and also his statement was recorded, but there
is absolutely no explanation as to why he was not examined as a witness before the Court.
In the above circumstances, the argument and submission of the learned senior counsel for the appellant as to the non-examination of the
independent witness affects the prosecution case must necessarily be accepted as we have no reason to reject the same. In this context, our
attention was drawn to the decision of the Apex Court in Deepak Kumar v. Ravi Virmani and Anr. 2002 SCC (Cri) 470, wherein the Supreme
Court has held that it is not a rule steadfast but depends on the concept of justice and the question of availability of acceptable evidence on record.
It is not that multiplicity of witnesses would improve the situation. Neither the court to be understood to hold that corroboration from independent
witnesses stands out to be a mandatory requirement and the witnesses though be interested can be relied upon, provided, the evidence available on
record is trustworthy and creates confidence in the minds of the Court that the scrutiny entails only pointing out the commission of an offence by the
accused. In the give case, as we have found that the very presence of P.W. 1 in the scene of occurrence is doubtful and she is none other than the
wife of the deceased and an interested witness, the prosecution, in all fairness, should have examined independent witnesses. There is absolutely no
explanation in this regard. We do not find any evidence to convince ourselves that there were any explanation as to the non-examination of the
available independent witnesses, namely either Ananth or Adaiklam.
For all the reasons, we are of the considered view that the prosecution has not established its case beyond any reasonable doubt and
accordingly the appellants are entitled to an acquittal in this appeal.
Accordingly, the appeal is allowed and the conviction and sentence imposed on all the appellants by the trial court in its judgment dated
24.02.1999 are set aside. The appellants are acquitted of the charges levelled against them. The bail bonds executed by appellants shall stand
terminated and the fine amount, if any, paid by them shall be refunded.