Thirmoorthy and Others vs State

K.B.K. Vasuki, J.—The accused 1 to 4 are the appellants herein. The appeal is filed against their conviction and sentence imposed and sentence upon them for the offence u/s 326 IPC by the trial court. The case of the prosecution is that there was previous enmity between the family members of the defacto complainant and the 1st accused Thirumoorthy who are the permanent residents of Belur village in Jawadi Hills and on 25.8.2002 at about 3.00 p.m. one Thukan who is the close relative of Suvendiran grazed his cattle in the fields of Thirumoorthy leading to quarrel between the two and the same compelled the defacto complainant to give a complaint to Village Panchayat. The panchayat was held at 10. p.m. on 25.8.2002 and in the course of such panchayat all the four accused assaulted with knife the defacto complainant and his brother Ponnurangam with knife saying "

and thus voluntarily caused them grievous hurt and with such intention and knowledge that their act of assault is likely to cause the death of victims and such act according to prosecution constitutes the offence punishable u/s 307 IPC. The prosecution has in order to establish the charges against the accused, examined one of the injured, independent eye witnesses and mahazar witnesses, medical Doctor who treated the injuries and police officials who registered the case and investigated the complaint as P.W. 1 to P.W. 12 and produced Ex. P.1 to 13 documents and M.O. 1 to M.O. 9 material objects. The accused in support of their defence examined D.W. 1 to D.W. 4 and produced Ex. D.1 to Ex. D.5 documents.

The trial court on the basis of the available records arrived at a conclusion that Panchayat held between the two groups was regarding land dispute between them, in the course of which the accused group assaulted P.W. 1 and his brother on the spur of anger without any criminal intention and hence found the accused not guilty of the offence u/s 307 IPC, but guilty only u/s 326 IPC and convicted and sentenced them accordingly. Hence this appeal by the accused 1 to 4 before this Court.

As already referred to, all the four accused are the appellants before this court. Though the accused were originally charged for the offence u/s 307 IPC, they were found guilty and convicted and sentenced for the offence u/s 326 IPC. The learned counsel for the appellants have in this appeal seriously questioned the correctness of the finding rendered by the trial court regarding the manner of the occurrence and the participation of the accused in the same on the following grounds;

(1) The time and the manner in which Ex. P.9 complaint of Suvendiran is recorded, based on which is Ex. P.10 FIR, which culminated into trial leading to impugned conviction of the accused.

(2) The complaint and counter complaint were received in respect of same occurrence from both quarrelling and accusing groups but investigation held by Investigation Officer is upon one of the complaints and the same is not in accordance with the procedure laid down in the police standing orders and the same vitiates the entire prosecution case and the judicial proceedings held upon the same and the resultant judicial pronouncement.

(3) Neither the witnesses nor the Investigating Officer did offer any explanation for the injuries sustained by the accused and other persons belonging to the accused party and the same discloses the improper manner of the investigation held by the I.O.

Heard the rival submissions made on both sides on all legal and factual objections.

Regarding the 1st objection, the law is, according to the prosecution, set in motion against the accused on the basis of Ex. P9 complaint and Ex. P.10 FIR. Ex P.9 complaint is said to be received and recorded from one of the injured Suvendiran by the then Sub Inspector of Police attached to the concerned jurisdictional Police station, while he was under treatment in Thirupathur Government Hospital. Ex. P.10 FIR proceeds to say that due intimation was received by Head Constable and on receipt of the same, the Head Constable reached the Hospital and received the complaint from one Suvendiran at about 12.15 Hours on 26.8.2002 which is in respect of occurrence allegedly happened at 10 p.m. on 25.8.2002 and thereafter he came to the Police Station and registered the same FIR. It is spoken by the Head Constable as P.W. 10 in the witness box that he had on receipt of the intimation been to the hospital where he met the defacto complainant by name Suvendiran and Suvendiran introduced himself as Suvendiran and on the basis of such introduction, he recorded the statement from him and as the defacto complainant informed him that he was injured in his right hand, he affixed his thumb impression in Ex. P.9 and P.W. 9 did not meet the Medical Officer who treated the defacto complainant, either for the purpose of identifying the witness or for ascertaining the physical condition of either Suvendiran or Ponnurangam who is the other injured in the occurrence and he did not obtain any certificate from the Doctor who treated them regarding the unconscious state of Ponnurangam and he returned to the Police Station and registered Ex. P.10. FIR on the basis of the complaint given by P.W. 10 But the statement of P.W. 9 that he did not meet the Doctor and he identified the injured on his own stands contradicted by the treating medical officer. In the course of his examination as P.W. 7 he has categorically stated that on receipt of the intimation sent from the hospital the Police Official came to the hospital and it is P.W. 7 who identified both the injured. Further statement was made by P.W. 7 doctor was as if the injured were first seen and examined by P.W. 7 and was admitted as impatient and due intimation was sent to the police station from the hospital. But such statement of P.W. 7 was not supported by P.W. 1 and P.W. 3. In this case, the defecto complainant much before commencement of trial, passed away and his brother who is the other injured in the alleged occurrence was examined as P.W. 1 and P.W. 3 is one Chinnakali who belonged to the same village and is closely known to P.W. 1 family and is one of the persons who is said to have taken the injured to the hospital and admitted them in the hospital for treatment.

It is the categorical evidence of P.W. 1 in the course of cross examination that the injured immediately after the occurrence went to police station first wherein both of them who were fully conscious gave independent statements to Sub Inspector of Police and the Sub Inspector of Police who recorded their statements read it out to the complainant and thereafter obtained their signature in the same and the case was registered on the basis of such statement. P.W. 3 has given almost identical statement and thus corroborated the version given by P.W. 1. Thus there are two versions available before this court regarding the time and the manner in which the first complaint regarding the occurrence is recorded.

As per the statement given by P.W. 1 and P.W. 3 who are the injured and the author of the statement and is more competent to speak about the same, they had been to police station first and gave the complaint to Sub Inspector of Police, whereas P.W. 10 Head Constable and P.W. 7 Doctor would say that the complaint was received only by head Constable from one of the injured at the hospital. The complaint which saw the light of the day is the complaint received from the hospital and the earlier complaint which was referred to by the injured as recorded in the Police Station has not seen the light of the day and the same amounts to suppression of the first information received by the police. The version that the complaint received in the police station is earlier in point of time is more acceptable for the following reasons.

As rightly pointed out by the learned counsel for the appellant, Ex. A1 and Ex. A2 Accident Registers Extracts relating to both the injured Suvendiran and Ponnurangam recorded by P.W. 7 Doctor refer to FIR. Had it been true that the injured was first seen by P.W. 7 and were admitted in the hospital and thereafter complaint was received then Ex. P.1 and Ex. P.2 are to be construed as earlier in point of time than Ex. P.9 statement and Ex. P.10 FIR. If that is so, the particulars regarding FIR which is the latter document could not find place in Ex. A.1 and Ex. A2 accident registers. The very fact that Accident Register contains the particulars regarding the crime number would only support the theory put forth by P.W. 1 and P.W. 3 that one complaint is received before Ex. A1 and Ex. A2 and the injured were admitted in the hospital after receipt of the complaint which is now suppressed. The failure on the part of the prosecution to produce the earlier complaint Ex. P.9 statement given by the injured in the hospital has to be necessarily treated as Section 161 Statement and cannot be attached any reliance.

However, this serious and material inconsistency in the evidence of P.W. 1 and P.W. 3 individuals on one hand and P.W. 7 and P.W. 10 officials on the other hand is not at all considered by the trial court. The trial court by giving its own explanation ignored the same and the same has resulted in erroneous finding regarding genuineness of Ex. P.9 and Ex. P.10. In my considered view, had this aspect been duly appreciated, the same would have led to serious doubt about genuineness of Ex. P.9 and Ex. P.10 thereby rendering the prosecution theory about the so called occurrence to be doubtful.

Secondly the evidence adduced on the side of the defence through D.W. 1 and D.W. 2 medical officers, D.W. 3 and D.W. 4 officials and through Ex. D.1 to D.4 would reveal that Thirumoorthy, Kallaimmal Thukkan and Govindan were injured in the course of the same occurrence at 10 p.m. on 25.8.2002 and they were seen and examined by D.W. 1 and D.W. 2 Doctors and D.W. 1 and D.W. 2 after their examination issued Ex. D1 would certificate of Kaliammal and Ex D2 to D4 Accident Registers relating to Thirumoorthy Govindan and Thukkan and they were admitted in hospital for further treatment and intimation was sent to the same Police Station and the same was received by Sub Inspector of Police who had then been to Hospital and received the complaint from Kaliammal and the same was registered as Crime No. 1030 of 2002 of the same police station. The evidence of DW 3 and DW 4 would further reveal that the complaint registered under Crime No. 1030 of 2002 is closed as mistake of fact on the same day.

This court finds great appreciation in the argument advanced on the side of the learned counsel for the appellants regarding the improper manner in which the investigation is held upon both FIRs registered as Crime No. 1029 and 1030 of 2002 arising out of the same occurrence. The contents of the Ex. P.10 and Ex. D.5 FIRs would reveal that the same relate to same occurrence that had taken place between 9.30 P.M. to 10.30 P.M. on 25.8.2002 and the same were given by two injured groups and recorded as Crime Nos. 1029 and 1030 of 2002. In that even both ought to have been necessarily treated as complaint and counter complainant and case and counter case, but however, the I.O. for reasons best known to him did not hold investigation in the manner as prescribed under law for case and counter case.

There is absolutely no explanation is forthcoming on the part of either P.W. 12 or DW 4 police officials for their failure to treat both complaints as case and counter case and to hold simultaneous investigation in the manner known to law and to file a report relating to both FIR''s to enable the Court to ascertain the real first aggressor and also origin and genesis of the occurrence, The Investigating Officer has not only failed to comply with such procedure, but has also chosen to suppress the first complaint recorded from the injured. The acts commission and omission on the part of the I.O. as discussed above would vitiate the entire proceedings which is totally based upon the second statement which is more in the nature of Section 161 statement. The trial court has totally over looked this serious aspect and misdirected itself and misconstrued the evidence and on misconception of facts held the charges levelled against the accused as proved. The considered view of this appellate Court or the discussion held above is that such finding is not legally and factually sustainable and the order of conviction and sentence based on the finding is liable to be set aside and is set aside. In the result the appeal is allowed setting aside the judgment of conviction and sentence dated 31.08.2002 made in S.C. No. 282 of 2003 on the file of Additional District and Sessions Judge, FTC, Thiruppathur, Vellore District. The accused 1 to 4 are acquitted from the charges and the bail bonds if any, executed by the accused 1 to 4 stand cancelled. The fine amount if any paid by the accused shall be refunded to the accused 1 to 4.