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Judgment
A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the Judgment passed in S.C. Nos. 174/2001 on the file of the
Additional Sessions Court,(FTC-I), Erode.
The short facts of the case relevant for the purpose of deciding this appeal are as follows:
i) P.W.1 was residing at Kolathupalayam Village, wherein he had landed properties. On 8.3.2000 he went to cut leaves in his land and on his way
to his land he saw the deceased. After cutting the leaves, P.W.1 returned from his land with leaves and saw the deceased proceeding in his cycle.
when the deceased reached the main road from canal, P.W.1 was nearing the bridge. At the time the deceased was crossing A1''s rice mill, A1 to
A3 and one Palanisamy Gounder and Ramalingam were standing there. A1 was armed with knife and others were armed with stick. The accused
intercepted the deceased and caught hold of him and from road dragged him into the rice mill. Palanisamy attacked the deceased on the fore head
of the deceased with stick. Ramalingam beat on the chest of the deceased with stick. When deceased tried to escape from there, Palanisamy again
best the deceased. But, that attack fell on A2 and A2 fell down. A2 beat the deceased. At that time, P.W.1 raised alarm. A1 cut the deceased and
deceased fell down. Palanisamy Gounder and Ramalingam kicked the deceased on his flank. Then the accused ran away towards western side.
ii) On hearing P.W.1''s hue and cry, P.W.2 and P.W.3 came to the scene of occurrence. P.W.3 informed about the occurrence to P.W.4, who is
the brother of the deceased. P.W.4 came to the scene of occurrence. P.W.5 arranged a car and took the injured to the hospital for giving
treatment. Injured was admitted in C.K.Hospital at Erode at 12.30 p.m. on 8.3.2000. At 2.30 p.m. injured/Sathasivam without responding to the
treatment died in C.K.Hospital. P.W.1 went to the Kodumudi Police Station and gave a written complaint-Ex.P.1. P.W.5 is the driver, who took
the deceased to C.K.Hospital at Erode.
iii) P.W.13 is the Sub-Inspector of Police, who had registered a case in Cr. Nos. 77/2000 u/s 341, 342 and 302 IPC on 8.3.2000 at 6.00 p.m.
on the basis of the complaint-Ex.P.1. On 9.3.2000 at 1.00 am, P.W.13 went to the Erode Government Hospital and recorded the statement of
A3 and based on the statement of P.W.13 registered a case in Cr. Nos. 78/2000 u/s 341, 324 IPC and that report is Ex.P.24. The First
Information Report is Ex.P.25.
iv) P.W.15, the Inspector of Police, Malayapalayam incharge of Kadumudi Police Station, on receipt of the First Information Report, went to
C.K.Hospital and conducted inquest over the dead body in the presence of panchyatars. Ex.P.27 is the inquest report. P.W.9 is the Doctor, who
had treated the injured-Sathasivam at C.K.Hospital till his death at 2.30 p.m. on 8.3.2000. Dr.Vijayakumar had sent the death intimation to
Kodumudi Police Station. P.W.11 is the Doctor, who had conducted postmortem over the corpse of Sathasivam on 9.3.2000 at 8.20 am and
issued Ex.P.22-Postmortem certificate. The Doctor has opined that the cause of death is due to head injury and other injuries. P.W.15 went to the
scene of occurrence and prepared the observation mahazar and drew rough sketch-Ex.P.27 and also seized blood stained earth and sample earth
M.O.1 and 2 and bicyle-M.O.6 under mahazar and also examined the witnesses and recorded their statements and arrested A2 and A3 at Erode
Government Hospital and also seized M.O.10 to M.O.13.
v) P.W.16 is the successor of P.W.15. A1 surrendered before the Judicial Magistrate on 20.3.2000 and P.W.16 took the custody of A1 and
recorded his confession. On the basis of the confession statement of A1, P.W.16 recovered M.O.3-blood stained aruval under Ex.P.6-Mahazar.
After observing the other formalities, P.W.16 had completed his investigation and filed final report. P.W.16 closed the First Information Report in
Cr. Nos. 78/2000 (complaint preferred by A3) as mistake of fact. On 6.11.2000 P.W.16 received a letter from Joint Secretary(Home) to
conduct further investigation. On 9.11.2000 P.W.16 filed a petition to conduct further investigation in Cr. Nos. 77/2000 (complaint preferred by
P.W.1) before the Judicial Magistrate, Kodumudi and obtained an order to conduct further investigation on 10.11.2000. P.W.17 took up further
investigation and after completing the investigation filed charge sheet against the accused 1 to 3 under Sections 341 and 302 r/w 34 IPC.
vi) The case was taken on file by the learned Judicial Magistrate, Kodumudi in PRC. Nos. 7/2000 and on appearance of the accused copies u/s
207 of Cr.P.C were furnished to the accused and since the case is triable by the Court of Sessions, the learned Magistrate had committed the case
to the Additional Session Judge(FTC.I), Erode, who had framed the charges u/s 341 and 302 r/w 34 IPC against A1 to A3. When questioned the
accused denied their complicity in the crime. On the side of the prosecution P.W.1 to 17 were examined, Ex.P.1 to 31 and M.O.1 to 13 were
marked and on the side of the accused D.W.1 was examined and Ex.D.1 to 6 were marked.
Vii) When incriminating circumstances were put to the accused u/s 313 of Cr.P.C, they pleaded innocence. On the basis of the available evidence
both oral and documentary, the learned Additional Session Judge(FCT.I), Erode has come to a conclusion that A1 to A3 are liable to be
convicted u/s 341 and 302 r/w 34 IPC and conbsequently convicted and sentenced them to undergo one month simple imprisonment u/s 341 IPC
each and sentenced u/s 302 r/w 34 IPC to undergo life imprisonment each of the accused. Aggrieved by the findings of the learned Additional
Sessions Judge,(FTC.I), Erode, the accused have preferred this Appeal.
Now the point for determination in this Appeal is whether the conviction and sentence u/s 341 and 302 r/w 34 IPC against the accused 1 to 3 is
liable to be set aside for the reasons sated in the memorandum of Appeal?
4.The point:- Originally there were five accused viz., 1.Sengottaiyan, 2.Palanisamy, 3.Ramalingam, 4.Muthayee Ammal and 5.Kolandaisamy
Gounder, cited in the First Information Report as well as in the charge sheet filed u/s 173(2) of Cr.P.C. A2''s son-in-law viz. Kathirvellu had
presented a petition dated 13.3.2000 to the Secretary to the Home Department, Tamil Nadu stating that the accused Palanisamy Gounder and the
accused Ramalingam were innocents and they were not present at the time of occurrence and an enquiry was conducted by the CB-CID Police,
Coimbatore and the report of the DSP was accepted by the Additional Director General of Police(Crime), CB-CID. According to the said report,
the accused Palanisamy and the accused Ramalingam were not present at the place of occurrence at the time of occurrence. The Inspector of
Police, Kodumudi Police Station filed M.P.1439/2000 before the Judicial Magistrate, Kodumudi u/s 173(8) of Cr.P.C for permitting to conduct
further investigation in Cr. Nos. 77/2000 (complaint preferred by P.W.1) on the file of Kodumudi Police Station and the said petition was allowed
and on that basis, P.W.16 has conducted further investigation and filed fresh charge sheet-Ex.P.30 only against A1-Sengottaiyan, A2-Muthayee
Ammal and A3-Kolandaisamy Gounder. The charge sheet was dropped against the accused Palanisamy and Ramalingam on the ground that they
were not present at the time and place of occurrence. Ex.P.29, petition of the Inspector of Police u/s 173(8), contains the report of the Additional
Director of CB-CID, as per the report of the Additional Director of CB-CID, on the date of occurrence i.e., on 8.3.2000, A3-Kolandaisamy
Gounder and his wife Muthayee Ammal(A2) and their son Sengottaiyan(A1) were drying the turmeric in the disputed place without heeding to the
words of the deceased-Sathasivam and since the deceased-Sathasivam had objected the accused, for drying turmeric in the disputed place, all the
three accused had attacked him, which resulted in the death of Sathasivam in the hospital and the complaint was preferred by the brother of the
deceased-Sathasivam after consulting the advocates and after implicating Palanisamy Gounder and his son Ramalingam as accused, the murder
case was registered against the above said five accused. It has been further stated in the report that on investigation it was brought to light that on
the date of occurrence at the time of occurrence the accused Palanisamy and his son Ramalingam were not present at the scene of occurrence, but
they were working in the turmeric field some four kilometers away from the place of occurrence and they retuned only at 6.30 p.m. on the date of
occurrence to their house. The above said report was also filed along with Ex.P.29 by P.W.16, which cuts at the root of the prosecution case for
the following reasons:
i) According to P.W.1 to 3 the place of occurrence is the rice mill belonging to A1 and at the time of occurrence A1 had assaulted the deceased-
Sathasivam with knife and the accused Palanisamy and accused Ramalingam (Who have been dropped subsequently in the re-investigation from
the charge sheet) also attacked the deceased-Sathasivam with wooden stick on the head and chest of the deceased respectively and A2 had
assaulted Sathasivam with a wooden stick and Palanisamy and Ramalingam kicked Sathasivam on the flanks. According to P.W.1 the accused
had way laid Sathasivam and dragged him into the rice mill belonging to A1 and assaulted him. But in the cross-examination, P.W.1 would admit
that the place where the turmeric were boiled and dried is situated some 100 feet away from the rice mill of A1. P.W.2 and 3 have also deposed
to the fact that all the accused along with the accused Palanisamy and the accused Ramalingam assaulted the deceased-Sathasivam. P.W.3 has
also corroborated that A1 to A3 along with Palanisamy and Ramalingam have assaulted the deceased-Sathasivam. According to P.W.3, the
motive for the occurrence was that there was some enmity prevailing between Palanisamy and Ramalingam on one hand and the accused on the
other in respect of a ditch and the motive for the occurrence against A2 & A3 and the deceased-Sathasivam was in respect of 5 cents of lands. In
the cross-examination, P.W.3 would depose that about 25 cents of land belong to one Kolandaivel Samboornam, who had appointed the
deceased-Sathasivam as his power of agent, already had executed the entire 25 cents in favour of A3, but P.W.3 has purchased 5 cents in the
same survey number in the above said 25 cents of land from the power of attorney agent deceased-Sathasivam and there was a civil dispute
pending before the civil court at Kodumudi. P.W.4, the brother of the deceased-Sathasivam, has also deposed to the fact that on the basis of the
power deed deceased-Sathasivam had executed a sale deed in favour of milk society in which P.W.3 is the president and that a civil dispute is
pending between A1-Sengottaiyan and P.W.3. Ex.P.2-sale deed will go to show that the deceased-Sathasivam had executed the sale deed as a
power of attorney for Sambooranam in favour of P.W.3-Palanisamy, in respect of 5 cents in survey No. 542/16 of Kulathupalayam village.
According to P.W.1, the entire 25 cents in the said survey number property was purchased by A1 and had constructed a rice mill thereon, but
through the deceased-Sathasivam as power of attorney for Sambooranam, another sale deed in favour of P.W.3 was executed for 5 cents. But
P.W.3 would depose in the cross-examination that he is not aware as to the purchase of entire 25 cents of land for Rs. 1,10,000/- by A1. As per
Ex.P.29, as per the investigation of CB-CID both the erstwhile accused Palanisamy and Ramalingam were not present at the place of occurrence,
that is why, they have been dropped in the charge sheet filed after reinvestigation u/s 173(8) of Cr.P.C. On the other hand, P.W.1 to 3, the eye
witnesses, would depose that the said Palanisamy and Ramalingam also assaulted the deceased/Sathasivam at the place of occurrence. So the
evidence of P.W.1 to 3 cannot be believed at all.
ii) As per the evidence of P.W.9, the Doctor, who had deposed on behalf of Doctor Vijayakumar, who had conducted autopsy, there were three
cut injuries on the head to bone deep, and stab injury behind the left ear and a contusion on the right fore head and another contusion on the left
fore head and an aberration on the left forearm and left thigh. In the cross-examination, the Doctor-P.W.9, who had admitted and treated the
deceased/Sathasivam at about 12.30 p.m. On 8.3.2000 at C.K.Hospial Erode, has deposed that Sathasivam had expired due to massive heart
attack. But, P.W.11-Doctor, who had issued Postmortem certificate-Ex.P.22, would depose that the deceased-Sathasivam would have died due
to the injuries he had sustained on the head. So, with regard to the cause of death also there is a discrepancy between the evidence of P.W.9-
Dr.S.K.Krishnan and P.W.11-Dr.N.Sengottaiyan.
iii) Yet another point to be noted is the fracture of occipital bone on the skull seen as per Ex.P.22-Postmortem report. According to P.W.1 to 3,
the other two accused viz. Palanisamy and Ramalingam were also assaulted with wooden stick on the head of the deceased/Sathasivam. But
according to the prosecution, the said Palanisamy and Ramalingam, who were previously shown as accused in the charge sheet before re-
investigation were not at all present at the place of occurrence at the time of occurrence. Under such circumstances, we cannot give any credit to
the evidence of P.W.1 to 3 to arrive at a conclusion that the occurrence had occurred in the manner as alleged by them.
iv) The next point to be noted is that A3 also sustained injury and according to P.W.16-Investigation Officer, a case under Cr. Nos. 78/2000 of
Kodumudi Police Station was registered on the complaint made by A3 and Ex.P.30 is the file relating to Cr. Nos. 78/2000. But, without
investigating the same, the said First Information Report was closed as mistake of fact. The learned Counsel appearing for the accused/appellants
relied on the decision reported in Lakshmi Singh and Others Vs. State of Bihar, and contended that non-explanation of injury sustained by the
accused is fatal to the prosecution case. According to P.W.15, then Inspector of Police, who had conducted a part of the investigation in this case,
A2-Muthayee Ammal and A3-Kolandaisamy Gounder were arrested in the Government Hospital while they were under treatment, but their
injuries were not at all explained by the prosecution. The relevant observation in the above said dictum by the Honourable Apex Court runs as
follows:
It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in
the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows
that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not
come out with a true version of the occurrence. This mater was argued before the High Court and we are constrained to observe that the learned
Judges without appreciating the ratio of the Court in Mohar Rai and Bharath Rai Vs. The State of Bihar, tried to brush it aside on most untenable
grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue particularly when the very
Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the
case referred to above, this Court clearly observed as follows:
The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as may as
13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that he noticed injuries on the person of Mohar Rai when he was produced
before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is
highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our Judgment the failure of the prosecution
to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly
true. Further those injuries probabilise the plea taken by the appellants.b2
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow:(1) that the evidence of the
prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants....
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the
three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond
reasonable doubt.
(3) It does not affect the prosecution case at all.
...
...
... It seems to us that in a murder case, the 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 circumstances 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 or, 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.
Further the occurrence had taken place at 11.00 am on 8.3.2000, but P.W.1 has preferred Ex.P.1-complaint only at 6.00 p.m. After having
deliberations with P.W.4 and that other advocates. The preponderance of possibilities seems to indicate that not only Palanisamy and Ramalingam
were falsely implicated in this case earlier, but also the present accused 1 to 3 have been falsely implicated. The evidence of P.W.1 to 3 will clearly
go to show that they have been falsely implicated, the above said Palanisamy and Ramalingam in their evidence, by saying that they also assaulted
the deceased with wooden stick on the head and chest respectively at the time of occurrence along with A1 to A2. There is no overtact attributed
against A3, whereas the overtact attributed against A2 is that she had assaulted the deceased-Sathasivam with a wooden stick on the hands.
P.W.3 in his evidence has stated that A2 had assaulted with a wooden stick on the left hand of Sathasivam. But, P.W.16, the Investigation Officer,
has stated in his evidence that he had not seen any bleeding injury on the left hand of the deceased-Sathasivam.
The delay in preferring the First Information Report, the non-explanation of the injuries sustained by A3 and the implication of Palanisamy and
Ramalingam falsely into the crime will cast cloud on the investigation of the prosecution case and the benefit of doubt shall go to the accused. We
are of the constrained opinion that the prosecution has miserably failed to prove the guilt of the accused u/s 341 and 302 r/w 34 IPC beyond any
reasonable doubt.
In the result, the appeal is allowed and the conviction and sentence passed against the appellants herein-A1 to A3 by the learned Additional
Sessions Judge,(FTC-I), Erode in S.C. Nos. 174/2001 is hereby set aside and the appellants herein/A1 to A3 are acquitted from the charges
levelled against them. Bail bonds stand cancelled.