State vs Gunasekar

A. Selvam, J.—The order of acquittal dated 19.08.2008 passed in Sessions Case No. 124 of 2007 by the Principal District and Sessions Court, Dindigul is being challenged in the present Criminal Appeal.

The crux of the case of the prosecution is that the first accused by name Gunasekar @ Sekar is the brother-in-law of the deceased by name Karuppusamy. The second accused Selvaraj @ Thangaraj is the brother-in- law of first accused and third accused Ramesh @ Ramesh Raja is known to both the accused 1 and 2. The first accused has used to make frequent demand of money from the deceased. On 10.05.2006 at about 10.00 p.m., in Kandappagoundenvalasu while the deceased has resided in a hut, situates in his garden, all the accused have come there by using a motor cycle. The first accused has demanded money from the deceased. Since the deceased has refused to part with his money and having enraged at his conduct, all of them have attacked him by using deadly weapons and due to their overtacts the deceased has sustained fatal injuries. The accused have also threatened the brother of the deceased by name Vellaichamy, his wife Mayilathal and one Selvaraj. After occurrence, the then injured (deceased) has been taken to Government Hospital, Palani. Since his condition is critical, he has been referred to Government Rajaji Hospital, Madurai where it is declared that he passed away and thereafter the de facto complainant by name Vellaichamy/brother of the deceased has given Ex.P.1, the complaint and the same has been registered by the concerned Sub Inspector of Police viz., Ayyanar in Crime No. 96 of 2006 under Sections 302 and 506(ii) of the Indian Penal Code.

On receipt of Ex.P.1, P.W.16, Inspector of Police viz., Anbalagan has taken up investigation and examined all connected witnesses and also made arrangements for conducting autopsy and P.W.9 Dr.Sridharan has conducted autopsy on the body of the deceased and found the following external and internal injuries:

"1. Laceration over left ear pinna 3 x 1 x 1 c.m.

Contusion over Left Cheek with eyeball edema 10 x 10 c.m. Open Dissection fracture Left Maxillary bone present.

Contusion with abrasion over the chin measured about 5 x 4 and 3 x 1 c.m. Mal occlusion of teeth present. Open Dissection fracture Mandible broken into two pieces.

A Lacerated Injury over occipital region 5 x 3 x bone depth.

Multiple abrasions over left shoulder. Open Dissection fracture Left clavicle present.

Contusion over the nape of neck 5 x 3 c.m. On opening the scalp:

Blood clot seen over the left temporal and occipital region fracture left temporal left parietal and occipital bone present. On opening the Membrane:

Sub-dural Hematoma seen over the whole of the brain fracture. Base of skull present. Brain Congested pale. On opening the thorax:

Fracture 4th, 5th & 6th ribs on left side. Thoracic Cavity contains about 300 ml of collected blood. Heart chambers empty. Hyoid Bone Intact. Stomach contains partially digested food particles about 200 ml. All Internal organs Congested Pale. Bladder empty".

The Postmortem Report has been marked as Ex.P.8. After transfer of P.W.16 his successor in office viz., Palanisamy/Inspector of Police (P.W.17) has continued investigation. After completing the same, laid a final report on the file of the Judicial Magistrate's Court, Palani and the same has been taken on file in P.R.C.No. 17 of 2006.

The Judicial Magistrate, Palani after considering the nature of offences alleged to have been committed by all the accused and also after coming to a conclusion to the effect that those offences are triable by Sessions Court, has committed the case to the Court of Sessions, Dindigul Division and the same has been taken on file in Sessions Case No. 124 of 2007.

The trial Court after hearing both sides and upon perusing the relevant records, has framed first charge against all the accused under Section 302 of the Indian Penal Code and second charge against all the accused Section 506(ii) of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.

On the side of the prosecution, P.Ws.1 to 17 have been examined and Exs.P.1 to P.22 and M.Os.1 to 11 have been marked.

When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. However no oral evidence has been let in on the side of the accused. But on the side of the accused Ex.D.1 has been marked.

The trial Court, after considering the available evidence on record, has found that the prosecution has failed to establish the guilt of all the accused and ultimately acquitted them. Against the order of acquittal, the present Criminal Appeal has been preferred by the Investigating Officer as appellant.

The consistent case put forth on the side of the prosecution is that the first accused is the brother-in-law of the deceased and he used to make frequent demand of money from the deceased for his lavish expenditure. The deceased has refused to part with his money and having enraged at his conduct, with intention to murder him, on 10.05.2006 at about 10.00 p.m. all the accused have come to the garden land of the deceased, where he resided and by using deadly weapons attacked on his person and at the time of occurrence the persons namely Vellaichamy, Selvaraj and Mayilathal are also present in the place of occurrence and all the accused have threatened the said Selvaraj and Mayilathal. After occurrence the then injured (deceased) has been taken to Government Hospital, Palani and subsequently referred to Government Rajaji Hospital, Madurai, wherein it is declared that he passed away and thereafter his brother viz., P.W.1 as de facto complainant has given Ex.P.1, complaint.

The learned Additional Public Prosecutor has contended that in the instant case the brother of the deceased has been examined as P.W.1 and his wife by name Mayilathal has been examined as P.W.3 and an independent witness by name Selvaraj has been examined as P.W.2 and all of them have consistently stated in their evidence that in the place of occurrence all the accused by using deadly weapons have indiscriminately attacked the deceased and thereby caused fatal injuries and their evidence is in consonance with the evidence of the Doctor, who conducted autopsy (P.W.9) and the trial Court without considering the overwhelming evidence available on the side of the prosecution has erroneously acquitted all the accused and therefore the order of acquittal passed by the trial Court is liable to be set aside and all the accused are liable to be punished as per Sections mentioned in the charges.

In order to controvert the contentions put forth on the side of the appellant/prosecuting agency, the learned counsel appearing for the respondents/accused 1 and 2 has contended that in the instant case the prosecution has purposely suppressed the genesis of occurrence and since the prosecution has suppressed material aspects and since the prosecution has not at all established presence of light in the place of occurrence, the trial Court has rightly acquitted all the accused and therefore the order of acquittal passed by the trial Court does not require any interference.

As stated supra, the entire occurrence has taken place in a garden land. The prosecution has set the law in motion only on the basis of Ex.P.1, the complaint, wherein it has been clearly stated about the motive for occurrence and also details of occurrence. Further it is stated in Ex.P.1 that after occurrence the then injured (deceased) has been taken to Government Hospital, Palani and subsequently he has been referred to Government Rajaji Hospital, Madurai where it is found that he has already passed away.

On the side of the accused, Ex.D.1 has been filed. Ex.D.1 is nothing, but Accident Register of the third accused by name Ramesh @ Ramesh Raja. In Ex.D.1, it has been clinchingly stated to the effect that both P.Ws.2 and 3 have admitted the third accused in Government Hospital, Palani on the same day. In fact this Court has perused the entire averments made in Ex.P.1. Nowhere it has been stated to the effect that during the course of occurrence the third accused has sustained injuries and he has also been taken to Government Hospital, Palani along with the then injured (deceased). Further this Court has analyzed the entire evidence given by P.Ws.1 to 3 and none of them has stated to the effect that P.Ws.2 and 3 have admitted the third accused in Government Hospital, Palani. Therefore it is quite clear that genesis of occurrence has been suppressed on the side of the prosecution for the reasons best known to it. Since genesis of occurrence has been suppressed by the prosecution, it is needless to say that the case put forth on the side of the prosecution is highly doubtful. The trial Court apart from the aspect mentioned supra has also disbelieved the case of the prosecution on the grounds of absence of light, delay in giving Ex.P.1 and also sending First Information Report to the Court.

It is an admitted fact that the occurrence has taken place in a garden land and that too at about 10.00 p.m. and the alleged eye-witnesses viz., P.Ws.1 to 3 have not spoken about the existence of light. Further the consistent case put forth on the side of the prosecution is that after attacking the deceased all the accused have escaped from the place of occurrence by using a motor cycle and the same dashed against a stone and due to that all of them have fallen down and subsequently they ran way from that place by way of leaving the motor cycle abruptly. In the instant case, a motor cycle has been seized and the same does not tally with the registration number available in this case. Further the ownership of that motor cycle has also not been established.

It has already been pointed out that the prosecution has suppressed genesis of its case. Since the prosecution has purposely suppressed genesis of its case and since P.Ws.1 to 3 have observed complete obmutescence with regard to admission of the third accused in the Government Hospital, Palani, it is needless to say that the prosecution has failed to establish the alleged guilt of the respondents/accused 1 and 2 punishable under Sections 302 and 506(ii) of the Indian Penal Code. In view of the discussion made earlier, this Court has not found any force in the contentions put forth on the side of the appellant/ prosecuting agency and altogether the present Criminal Appeal deserves to be dismissed.

In fine, this Criminal Appeal deserves dismissal and accordingly is dismissed and the order of acquittal passed in Sessions Case No. 124 of 2007 by the Principal District and Sessions Court, Dindigul is confirmed.