Ashok Kumar v. The Deputy Superintendent Of

BAIL SLIP The Appellants/Accuseds viz. namely, 1.Ashok Kumar, 2.Chandrasekar, 3. Mathi, 4.Pandi were released on Bail as per order of this Court, dated 18.05.2017 and made in Crl.M.P(MD) No.4036/2017 in Crl.A.No.297 of 2016 and Crl.M.P(MD)Nos.4187 to 4189 of 2017 in Crl.A(MD)No. 328 of 2017.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.06.2018

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED Crl.A.(MD)Nos.297 and 328 of 2016 Ashok Kumar .. Appellant in Crl.A.(MD)No.297 of 2016 /A 1 1.Chandrasekar 2.Mathi 3.Pandi .. Appellants in Crl.A.(MD)No.328 of 2016/A2, 3 & 5 Vs.

1.The State rep. by The Deputy Superintendent of Police, Melur, Madurai District.

.. 1st Respondent in both the appeals 2.Suresh (R2 impleaded as per order of this Court, dated 18.05.2017 in Crl.M.P.(MD) No. 9805 of 2016 in Crl.A(MD)No.328/16) .. 2nd Respondent in Crl.A.(MD)No.328 of 2016 COMMON PRAYER: These criminal appeals have been preferred under Section 374 (2) Cr.P.C against the judgment dated 03.08.2016 made in Spl.S.C.No.139 of 2004 by learned III Additional Sessions Judge (PCR Cases), Madurai.

For Appellant in Crl.A.(MD)No.297/16 : Mr.N.R.Elango, Senior Counsel for Mr.S.M.A.Jinnah For Appellants in Crl.A.(MD)No.328/16 : Mr.Veera Kathiravan, Senior Counsel for Mr.R.Manickaraj For R1 in both the Criminal Appeals : Mr.S.Chandrasekar Additional Public Prosecutor For R2 in Crl.A.(MD) No.328/16 : Mr.S.Ramesh for Mr.P.Rathinam COMMON JUDGMENT (The Judgment of the court was delivered by C.T.SELVAM, J.) Since these two Criminal Appeals arise out of a single Judgment, they were heard together and they are disposed of by means of this Common Judgment. The appellant in Crl.A.No.297 of 2016 is the first accused and the appellants in Crl.A.No.328 of 2016 are the accused Nos.2, 3 and 5 in Spl.S.C.No.139 of 2004 on the file of III Additional District and Sessions Court (PCR Court), Madurai. 2.

Challenge is made to the Judgment of the learned III Additional District and Sessions Judge (PCR Cases), Madurai, made in Spl.S.C.No.139 of 2004, whereby the appellants along with A4 - Santhanam stood charged under Sections 148 and 307 IPC r/w Section 3 (2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. They were found guilty as charged and sentenced to one year rigorous imprisonment and a fine of Rs.500/-, in default one month simple imprisonment under Section 148 IPC and life imprisonment and fine of Rs.2,000/-, in default, six months simple imprisonment under Section 307 of IPC r/w Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

3.The prosecution case is that animosity existed between complainant and accused party. A meeting was conducted by the defacto complainant party at Sokkampatti on 13.11.1991. After attending the meeting, at about 5.45 p.m., P.W.1 and P.W.2 were talking at a rickshaw stand near Melur bus stand, A1 to A6 and some unnamed accused assaulted P.W.1 with knives and caused injuries to him. P.W.1, preferred a complaint before the Sub Inspector of Police at Melur Police Station on 13.11.1991 at 6.00 p.m. P.W.10, SubInspector of Police registered the complaint in Crime No.962 of 1991 under Sections 147, 148, 341, 323, 324 and 307 IPC and prepared Ex.P.16 - F.I.R. He recovered M.Os.7 and 8 Dhoti and Shirt from

P.W.1 and sent him to Government Hospital, Melur for treatment. P.W.8, Inspector of Police, took up investigation, went to the scene and prepared observation mahazar Ex.P.7(2), as also rough sketch Ex.P.8. On 14.11.1991, at 10.00 a.m., he arrested A4 and A5, namely, Santhanam and Pandi and recorded their confessions in the presence of P.W.5, namely, Somasundaram as also one Mookan. Based on the confession of A5 - Pandi, he recovered M.Os.1 and 2 - knives from him. On the same day at 11.30 a.m., he arrested A1 to A3, namely, Ashok Kumar, Chandrasekar and Mathi as also one Asaithambi (Originally 3rd accused) and recorded their confessions in the presence of P.W.6 - Murugesan as also P.W.7 - Malaisamy. Based on the confession of A1 - Ashok Kumar, he recovered M.Os.3 to 6 from him. He examined the witnesses and recorded their statements. P.W.13 continued investigation and examined the doctor, who treated the victim and recorded his statement. Upon completion of investigation, he filed a charge sheet informing commission of offences under Sections 148 and 307 I.P.C.

Thereafter, P.W.12 - Deputy Superintendent of Police, Melur as per the direction of Superintendent of Police, Madurai Rural District, took up further investigation. As per the direction of Fast Track Court No.3, Madurai, he examined P.Ws.1 and 2 and recorded their statements. He obtained community certificates of the victim and accused. Upon completion of investigation, he filed a charge sheet informing commission of offences under Sections 3(1)(x) and 3(2)(v) of SC/ST (Prevention of Atrocities) Act. On committal, the case was tried in Special S.C.No.139 of 2004 on the file of learned III Additional District and Sessions Judge, (PCR Court), Madurai. Before trial Court, prosecution examined 13 witnesses and marked 19 exhibits and 8 material objects. None were examined and no document was marked on behalf of defence.

4.1. P.W.1 - Suresh is the victim. His complaint is marked as Ex.P.1. He deposed that on 13.11.1991 at 5.45 p.m., when he was talking with P.W.2, accused attacked him with knives. He also spoke to the motive for the occurrence of going to hospital and of preferring complaint.

4.2. P.W.2 - Deivendran, eye-witness to the occurrence, corroborated the evidence of P.W.1.

4.3. P.W.3 - P.Sivanantham spoke to taking the accused to Government Hospital, Madurai from Government Hospital, Melur. 4.4. P.W.4 - Muthukumar was examined to speak on preparation of observation mahazar. However, he did not support the prosecution and was treated hostile.

4.5. P.W.5 - Somasundaram spoke to arrest, confession and recovery from A4 and A5.

4.6. P.W.6 - Murugesan was examined to speak of arrest, confession and recovery from A1 to A3 as also one Asaithambi. He did not support the prosecution and was treated hostile.

4.7. P.W.7 - Malaisamy spoke to arrest, confession and recovery from A1 to A3 as also one Asaithambi. 4.8. P.W.8 - Selvaraj was the Inspector of Police at Melur Police Station, who conducted investigation in the case. He spoke to visiting the place of occurrence, preparation of mahazars, recovery of material objects, arrest of accused and examination of witnesses. 4.9. P.W.9 - A.V.R. Dharmaraj, Tahsildar, Melur, spoke to issuance of community certificates both of the accused and the victim.

4.10. P.W.10 - Lakshmanan, Sub-Inspector of Police, spoke to registration of case in Crime No.962 of 1991 u/s. 147, 148, 341, 323, 324 and 307 I.P.C., and of forwarding Ex.P.16, Original First Information Report to Judicial Magistrate, Melur and copies thereof to higher officials.

4.11. P.W.11 - Dr.Jegatheeswari spoke to examining of P.W.1 and issuing wound certificate.

4.12. P.W.12 - Palanichamy, Deputy Superintendent of Police, Melur, spoke to conduct of further investigation based on the direction of Superintendent of Police and on completion of investigation, filing charge sheet informing commission of offences under Sections 3(1)(x) and 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

4.13. P.W.13 - Baskaran, Deputy Superintendent of Police, Melur, who took up the case for further investigation spoke to continuation of investigation and on completion of investigation, filing charge sheet informing commission of offences under Sections 148 and 307 I.P.C.

5.When the accused were examined under Section 313 Cr.P.C. regards the incriminating materials against them, they denied their complicity in the crime and stated that they had been falsely implicated in the case.

6.On appreciation of materials before it, trial Court, under judgment dated 03.08.2016, convicted the appellants/A1 to A3 and A5 for offence u/s. 148 IPC and sentenced them to one year R.I. and fine of Rs.500/- each i/d 1 month S.I. and also convicted them for offence u/s 307 I.P.C. r/w Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and sentenced them to life imprisonment and fine of RS.2,000/- each i/d 6 months S.I. Against such finding, the present appeals have been filed. 7.Heard Mr.N.R.Elango, learned Senior Counsel for appellant in Crl.A.(MD) No.297 of 2016, Mr.Veera Kathiravan, learned Senior Counsel appearing for appellants in Crl.A.(MD) No.328 of 2016,

Mr.S.Chandrasekar, learned Additional Public Prosecutor appearing for first respondent in both the appeals and Mr.S.Ramesh, learned counsel for second respondent in Crl.A.(MD) No.328 of 2016.

8. Advancing arguments on behalf of the appellants, learned Senior Counsel would submit that according to the prosecution, the occurrence took place on 13.11.1991 at about 05.45 p.m. at Melur bus stand, a day light occurrence. If the injured has suffered injury in the manner spoken to by him, the presence of bloodstains would have been mentioned in the observation mahazar. The Observation Mahazar does not disclose presence of any bloodstains and thus it become suspicious. He would further submit that the Accident Register, which would be a contemporaneous record of the manner and time of occurrence had not been marked. Though the occurrence is a day light occurrence, no independent witness was examined. The Police Constable, who accompanied the victim to hospital was also not examined. Under such circumstances, the appellants are entitled for acquittal.

9. The Court heard the learned Additional Public Prosecutor for first respondent in both appeals and Mr.S.Ramesh, learned counsel for second respondent in Crl.A.(MD) No.328 of 2016 on the above contentions.

10.These appeals succeed for the following reasons:- (i) The occurrence is of 13.11.1991 and the original complaint Ex.P.1 was registered on the same day. The original charge sheet has been filed on 21.05.1992 informing offences under Sections 148 and 307 IPC. P.W.1, who is informed to be now no more, has taken up study of Law in the academic year 1991-1995 and in 1999, he moved an application under Section 173(8) Cr.P.C. seeking further investigation, which came to be allowed. Pursuant there to, a final report has been filed in the year 2004 informing commission of offence also under Sections 3(1)(x) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The charge of offence under Sections 3(1)(x) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, does not survive for the reasons that;

(a) neither in the original complaint nor in the statement made under Section 161(3) of Cr.P.C., there is an accusation on caste lines;

(b)The Investigating Officer - P.W.8, in cross, informed that P.W.1 had not stated that the accused had attacked him uttering his caste name.

(ii) The case is one where P.W.1 has suffered the following injuries:-

(1) Stab injury 7cm x 3 cm x bone deep on the left upper arm upper part;

(2) Incised injury 4 cm x 2 cm x 2 cm on the gluleal region Right side;

(3) Incised injury 4 cm x 2 cm x 2 cm on the Right hip;

(4) Incised injury 3 cm x 2 cm x 1 cm on the Right thigh upper part;

(5) Incised injury 2 cm x 1 cm x 1 cm on the Right thigh middle part;

(6) Incised injury 2 cm x 1 cm x 1 cm on the Right thigh upper part 4 cm inner to the 4th injury;

(7) Incised injury 4 cm x 2 cm x 1 cm on the Right fore arm middle part;

(8) Incised injury 1 cm x 1 cm x 2 cm on the left upper arm upper part inner aspect;

(9) Incised injury 2 cm x 1⁄2 cm x 1⁄2 cm on the Right middle finger dorsal aspect;

(10) Incised injury 1 cm x 1⁄2 cm x 1⁄2 cm on the index finger Right side;

(11) Incised injury 1 cm x 1⁄2 cm x 1⁄2 cm on the Ring finger Right side;

(12) Incised injury 1 cm x 1 cm x 1⁄2 cm on the Right side of the back-middle part.

Though P.W.1 has suffered as many as twelve injuries, none of them are serious in nature. One of them is to the chest and others are to the right thigh and right hand. Sufferance of multiple injuries by itself, would not lead to the conclusion of an attempt to murder. It is to be ascertained whether the appellants can be found guilty thereof beyond reasonable doubt. We consider it difficult to do so, since, (a) The place of occurrence is said to be the busy Melur Bus Stand area and the time thereof 5.45 p.m. In a day light occurrence at a busy spot, no independent witness has been examined by the prosecution;

(b) We find unacceptable explanation of Investigation Officer - P.W.8 that the independent witnesses had not been examined since they had not seen the occurrence;

(c) The Observation Mahazar - Ex.P.7, does not indicate any bloodstain. Further, according to P.W.1, the occurrence has taken place on the western side of Madurai-Trichy road, whereas in the Observation Mahazar, it is shown to have taken place on the Southern side of Madurai-Trichy road;

(d) P.W.1 has first been admitted at the Government Hospital, Melur. The wound certificate (for P.W.1) - Ex.P18 has been issued on 22.02.1992. The Accident Register, relating to the admission and treatment of P.W.1, which would be the first contemporaneous record, has not been marked;

(e) After first aid, P.W.1 was sent to Government Rajaji Hospital, Madurai for further treatment. No records were produced relating to the treatment of P.W.1 at Government Rajaji Hospital. P.Ws.2 and 3 would state that they had taken P.W.1 to the Government Rajaji Hospital. It is hard to understand why P.W.1 has not been shifted to Rajaji Government Hospital, Madurai at the instance of the Police agency.

(f)According to prosecution, Ex.P18 - wound certificate reveals that the injured P.W.1 was accompanied by one P.C.No.1581 by name Rahamathullah to hospital. The said police constable has not been examined. Significantly it makes no mention of the presence of P.W.2.

(g) According to P.W.1, he along with P.W.2, with whom he had been conversing at the bus stop at the time of occurrence, had gone to police station and on the basis of his statement, Ex.P.1 has been registered. In cross examination he has stated that immediately after he tendered statement, he was sent to Government Hospital, Melur and that he did not remember, which police official had recorded his statement or whether he signed the same. He has further deposed that he was examined by the Inspector at the Hospital by about 6.00 p.m. to 6.30 p.m.; his statement was recorded and that he had signed the same. According to P.W.2, it was his statement at the police station, that was recorded and that it was thereafter, he and P.W.1 were sent to hospital.

(h) Despite injuries No.7, viz., incised injury 4 cm x 2 cm x 1 cm on the Right fore arm middle part; No.9, viz., Incised injury 2 cm x 1⁄2 cm x 1⁄2 cm on the Right middle finger dorsal aspect; and No.11, viz., Incised injury 1 cm x 1⁄2 cm x 1⁄2 cm on the Ring finger Right side; P.W.1 informs of having signed the complaint at the hospital between 6.00 - 6.30 p.m. It straightaway raises the question whether P.W.1, having suffered such grievous injuries, actually could have signed the complaint-Ex.P1 and an immediate answer is found in favour of the defence. That the alleged signature of P.W.1 in Ex.P.1, and that found in the deposition before Court are totally at variance is relavant.. We are unable to accept the submission of learned counsel for defacto complainant that the variance is owing to injuries suffered.

(i) P.W.5, examined to speak to arrest of A1 to A3 informs that he was witness to confession and recovery as also from A4 and A5. (j) There is a delay of seven months in statements recorded under Section 161(3) Cr.P.C., reaching the Court. (k) Here is a case, where the prosecution alleges an occurrence at 5.45 p.m. on 13.11.1991, registration of FIR at 6.00 p.m. and of the same reaching the Judicial Magistrate at 7.00 p.m. on the same day. Even so, we are unable to attach any credence to the prosecution case, particularly, giving the failure of the

prosecution to mark the Accident Register of P.W.1, which would be the contemporaneous record and, which would have revealed his time of admission at hospital. We see much force in the defence making an issue thereof. The non availability of Accident Register of P.W.1, as also the other discrepancies noted, cast a doubt on whether the occurrence, in which, P.W.1 suffered injuries took place in the manner projected by the prosecution.

10. Given the infirmities above informed in the prosecution case, it becomes necessary not to delve further thereon. The prosecution has failed to prove its case beyond reasonable doubt. The appellants are entitled to acquittal.

11.In the result, these Criminal Appeals are allowed. The conviction and sentence imposed on the appellants/A1 to A3 and A5 in Spl.S.C.No.139 of 2004, dated 03.08.2016 are set aside. The appellants are acquitted of the charges levelled against them. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bonds executed by the accused shall stand cancelled. Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar(CS-I) To 1.The III Additional District and Sessions Judge,PCR Court, Madurai.

2.The Judicial Magistrate, Melur.

3.The Deputy Superintendent of Police, Melur, Madurai District. 4.The Superintendent, Central Prison, Madurai. 5.The Inspector of Police, Melur Police Station, Madurai District.

6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Copy To:

The Section Officer,Criminal Section, Madurai Bench of Madras High Court,Madurai.(2 Copies) +1CC to M/s.Veera Associates, Advocate, SR.No. 67459 +1CC to Mr.S.M.A.Jinnah, Advocate, SR.No.67290 +2CC to Mr.R.Alagumani, Advocate, SR.Nos. 67679, 67455 Crl.A.(MD) Nos.297 & 328 of 2016 07.06.2018 RJ2 ES/SKN/RSK/SAR 1/27.08.2018/8P/13C