AUGUSTINE Vs. STATE

JUDGEMENT

(1.) The nine accused in S. C No. 11 of 1980 of the Court of the Additional Sessions Judge, Parur, were tried for the murder of one Michael, for causing injuries to his wife and two sons and other offences. It so happened that accused 1, 6 and 7 also sustained some injuries in the course of the same transaction. The police registered Crime No. 97 of 1979 on the basis of the information given by Pw-1, one of the injured sons of Michael, and Crime No. 99 of 1979 on the basis of the statement of the sixth accused. After investigation a charge sheet was presented in respect of Crime No. 97 of 1979 Crime No. 99 of 1979 was referred as false and a report to that effect was filed. After trial accused 1, 2 and 4 to 7 were convicted for murder, rioting and other cognate offences. Criminal Appeal No. 305 of 1980 was filed before this Court against the conviction and sentence of the above accused. The State filed Criminal Appeal No 430 of 1980 against the acquittal of accused 3, 8 and 9. The appeals came up for hearing before a Division Bench. In the course of arguments a contention was raised to the effect that a serious irregularity has been committed by the investigating agency in having filed a refer report in Crime No. 99 of 1979 and by the Court in accepting the same, that the said case and the present case came under what is known by the expression "case and counter case", that for the proper appreciation of the evidence in the present case the evidence in Crime No. 99 of 1979, which is the counter case, should also have been placed before Court, that the counter case should also have been committed for trial and the two cases should have been disposed of simultaneously. In support of the plea the accused appellants placed reliance on the decision in Thami v. State of Kerala, 1965 KLT 697 . In that case the appellant, Thami, was tried for the murder of one Madhavan Nair and for causing hurt to Pw-1 who according to the prosecution tried to wrest the knife of the accused and for that purpose beat the accused. The accused had his own version of the occurrence and if that version was true he was entitled to right of private defence. Even though a case was registered under S.324 of the Indian Penal Code on the basis of the statement of the accused, after investigation it was referred as non cognizable and falling under S.334 of the Indian Penal Code. The Division Bench of this Court which disposed of the appeal observed that the circumstances made out indicated that the whole thing took place in darkness, that none could have seen the occurrence and that the whole case appeared to have been reconstructed afterwards because a man died of injuries, Anna Chandy J., speaking on behalf of the Division Bench observed:

(2.) The appellants contended that the investigating agency in the instant case should not have referred Crime No.99 of 1979 registered on the basis of the statement of the sixth accused, that charge sheet should have been filed in Court and the case and the counter case should have been tried by the same Court. The omission, according to the learned counsel appearing for the accused, seriously prejudiced their defence and the conviction should be set aside on that sole ground.

(3.) No doubt there are instances where the police do file separate charge sheets in respect of the same transaction, one in the main case and the other in the counter case registered on the basis of the statement of the accused in the main case. Whenever such charge sheets are filed, the practice, it appears, has been to see that the prosecutions in the main case and the counter case are conducted by two different prosecutors, and the cases are disposed of simultaneously. In the usual course one case would end in acquittal and therefore there has been no occasion for this Court to examine the legal and practical implications of the practice. When a stand was taken by the appellants that it was incumbent on the prosecuting agency to have filed a charge sheet in the counter case also, our learned brothers in the Division Bench did not, not only concur with that view, but felt that the finding of two charge sheets in respect of the same occurrence is undesirable as it is against accepted norms of procedure and would undermine the very purpose of investigation by the police. The learned Judges after dealing with the case law on the point including Ramakrishnayya v. State, AIR 1954 Mad. 442 felt that there is an apparent conflict between the decision in Thami v. Stale of Kerala, 1965 KLT 967 and the decision in Achuthan v. Bappu, 1961 KLT 412 , which has followed the Madras case. The Division Bench therefore expressed the view that it is desirable that the matter is examined by a Full Bench. That is how the case happened to be before us.