RAJA Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THE appellants, two in number, who stood charged, tried and was found guilty as below by the Court of II Additional Sessions Judge, dharmapuri at Krishnagiri in Sessions Case No. 149/1999, have brought forth this appeal : Accused 1 and 2 were charged under Section 302 read with 34 of the Indian Penal Code. Accused 1 and 2 were charged under Section 307 read with 34 ( 2 counts) of the Indian Penal Code. Accused 1 and 2 were charged under Section 324 read with 34 of the Indian Penal Code.

(2.) THE learned Sessions Judge, on trial, found the accused guilty of the charges, awarded life imprisonment along with a direction to pay a fine of Rs. 1,000/- carrying a default sentence of rigorous imprisonment for three months, for the conviction under section 302 read with 34 of the Indian Penal Code. For the conviction under section 307 read with 34 of the Indian Penal Code, the accused were awarded rigorous imprisonment for seven years and a fine of Rs. 1,000/- carrying a default sentence of rigorous imprisonment for three months, for each count. THE accused were also directed to undergo rigorous imprisonment for a period of two years along with a fine of rs. 1,000/- carrying a default sentence of rigorous imprisonment for three months, for the conviction under section 324 read with 34 of the Indian Penal code. THE said sentences were directed to run concurrently.

(3.) INCISED wound left side of chest 3 cm x 1 cm x muscle deep. He issued Ex. P. 4 wound certificate for the injuries sustained by him. P. W. 2 was examined at 1. 30 pm for her injuries by P. W. 4, who issued Ex. P. 5 noting the following injuries found on her: 1. INCISED wound left forearm wrist 7 cm x 3 cm x bone deep. 2. INCISED wound occipital region 10 cm x 5 cm x bone deep. 3. INCISED wound left parietal region 7 cm x 5 cm x bone deep. 4. INCISED wound right arm 7 cm x 3 cm x muscle deep. P. W. 1 was also examined by P. W. 4 at 08. 00 pm and the doctor gave wound certificate, Ex. P. 6, where he narrated the injuries found on p. W. 1, which are as follows : 1. INCISED wound right middle finger 2 cm x cm x muscle deep. 2. INCISED wound right ring finger 2 cm x cm x skin deep. P. Ws. 2 and 3 were referred to the Government Hospital, dharmapuri for better treatment. (e) P. W. 16, the Inspector of Police, on receipt of the first information report, proceeded to the scene of occurrence at 02. 15 pm, made an inspection in the presence of two witnesses and prepared a mahazar, ex. P. 8 and drew a rough sketch, Ex. P. 22. He conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatdhars between 04. 00 pm and 07. 30 pm and prepared Ex. P. 23 inquest report. He recovered M. Os. 3 to 5, blood stained earth, sample earth and burnt sticks, from the place of occurrence under cover of mahazar, Ex. P. 9. He issued Ex. P. 2 requisition to the doctor to conduct autopsy on the body of the deceased. (f) P. W. 4, the doctor attached to the Government hospital, Palacode conducted postmortem on the body of the deceased at 10. 00 am on 26. 07. 1995 and found the following injuries on her : 1. An incised wound with gapping over the back of neck 25 cm x 10 cm x 1 cm. Fracture and division of spinal column at C3 level with division of spinal cord. All the major vessels of neck both caroleds, jugular severed in the wound. Head is attached to the body only by trachea and a piece of neck in front of trachea. 2. INCISED wound over right side of back 3 cm x 1 cm x muscle deep. He has opined that the deceased would appear to have died of shock and haemorrhage and injury to vital organ like spinal cord. He issued ex. P. 3 postmortem certificate. (g) Pending investigation, both the accused were arrested at 06. 00 am on 27. 07. 2005 when they were standing near Palacode bus stand. The first accused gave the confession statement, the admissible portion of which is marked as Ex. P. 24, pursuant to which M. O. 1 koduval was recovered in the presence of witnesses under cover of a mahazar, Ex. P. 25. The second accused also volunteered to give a confession statement, which was recorded in the presence of two witnesses. The admissible portion of that statement is marked as Ex. P. 25, pursuant to which he produced M. O. 2 knife was recovered in the presence of the same witnesses under Ex. P. 27, mahazar. Both the accused were sent to remand. All the material objects recovered from the place of occurrence, from the dead body and from the accused on production were subjected to chemical analysis by the Forensic Department, on a requisition made by the Judicial Magistrate concerned. On completion of the investigation, the Investigating Officer filed the final report. The case was committed to court of Sessions and necessary charges were framed. The case was taken up for trial before the trial Court. 4. In order to substantiate the charges levelled against the appellants/accused, 17 witnesses were examined by the prosecution. The prosecution relied on 27 exhibits and 18 material objects. On completion of the evidence on the side of the prosecution, all the accused were questioned under section 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses, and they flatly denied the same as false. Two witnesses were examined on the side of the defence, namely, D. W. 1, the doctor attached to the Government Hospital, Palacode, who medically examined Lakshmi and the said Lakshmi was examined as D. W. 2, and the wound certificate in respect of the injuries on D. W. 2 was marked as Ex. D. 1. After hearing both sides, the trial Court was of the opinion that the prosecution has proved its case, and therefore, found the appellants guilty of the charges framed against them and awarded imprisonment as mentioned above. 5. Learned counsel for the appellants, while advancing his arguments, inter alia, would submit that though the prosecution has marched p. Ws. 1 to 3, 5 to 7 as eye witnesses to the occurrence, P. W. 7 has turned hostile and all the witnesses, who have supported the prosecution, are closely related. It is an admitted position that there was prolonged enmity between the families and thus the prosecution witnesses have come forward with a false version implicating the accused with the crime. In the instant case Lakshmi with whom P. W. 3 had illicit intimacy on the false assurance of marriage was examined as D. W. 2. She has narrated the occurrence and she has also sustained injuries. Though she has been medically examined by D. W. 1, the doctor and the wound certificate in that regard has also been marked as Ex. D. 1, the prosecution had no explanation to offer as to the injuries sustained by D. W. 2. In the instant case, the attack on Lakshmi by the prosecution witnesses and the alleged occurrence, which is the subject matter of appeal before this Court, are part and parcel of the same transaction, but in a clever manner, the prosecution has projected the attack on Lakshmi as an independent transaction and has come out with this case. It is also an admitted fact by P. W. 16, the investigating Officer that a case came to be registered on the complaint made by the said Lakshmi in crime No. 754/1995 and the case is also pending. But, the records in respect of crime No. 754/1995 were not produced before the Court. So long as both the transactions are one and the same, a duty is cast upon the prosecution to produce the records enabling the Court to find out the truth of the matter, but the prosecution had miserably failed to do so and that would go to show that the genesis of the occurrence has been suppressed by the prosecution. 6. Added further the learned counsel, that the occurrence, according to the earlier version of the prosecution, had taken place at Melatheru, but, as could be seen from the evidence now available before the Court, the occurrence had taken place at the fields of Mariappan and no explanation has been brought forth in order to show how the discrepancy arose in respect of the place of occurrence. Apart from that, recoveries of the material objects 1 and 2 should have been rejected by the lower Court out right, since P. Ws. 10 and 11, in whose presence the accused gave confessional statement, according to the prosecution, and who attested the recovery mahazars, have turned hostile. Thus, the available witnesses are interested witnesses and if their testimony is carefully examined, their testimony would not stand scrutiny. Apart from that, this is a case where the prosecution has miserably failed to produce necessary documents before the Court enabling the court to find out the truth. Under the circumstances, the lower Court should have rejected the case of the prosecution outright giving the appellants the benefit of doubts. 7. The Court heard the learned counsel for the State on the above contentions, paid its anxious consideration on the submissions made and also made thorough scrutiny of the available materials.