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2008 Supreme(Mad) 990
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P.D. DINAKARAN & THE HONOURABLE MR. JUSTICE R. REGUPATHI
State by Inspector of Police
Versus
Mani
Criminal Appeal No.784 of 2005
Decided on : 20-03-2008
For the Appellant: N.R. Elango, Addl. Public Prosecutor.
For the Respondent:K. Gandhikumar, Advocate.
Headnote:A. INDIAN PENAL CODE, 1890 - Section 302 read with 34 IPC and Section 324 read with 34 IPC - Acquittal by Trial Court due to contradictions in the evidence of witnesses, non-examination of Post-mortem doctor and non-explanation for the injuries sustained by one of the accused - HELD, Non-examination of Post-mortem doctor is not fatal-but to prove the authenticity of the Post-mortem report. Prosecution should have examined any other Doctor who knew the hand-writing and signature of the Post-mortem doctor (Para 13) - When there was a clash between groups and counter complaint lodged by the accused in such circumstances where both parties have grudges against each other in respect of land dispute, independent witnesses examined during investigation not examined in Court - Trial court rightly disbelieved the evidence of PW1 to PW5 as interested witnesses (Para 14) - Delay of 13 hours of FIR reaching Court Assumes importance in view of the Counter-Complaint given by the accused. HELD, FIR Ex-P1 could have been prepared after much deliberation after the receipt of Counter complaint, Further absence of any definite evidence as to the reference of Counter case as mistake of fact, a doubt is cast upon the prosecution as to the genesis of its case against the accused. (Para 15) - Trial court also concluded that Section 161 statements although allegedly recorded next day to the occurrence had reached court much later hence the said statements should have been concocted ones perpetrated after much deliberations (Para 17).
B. CRIMINAL PROCEDURE CODE - SECTION 156 - FIR - Delay - Possibility of preparation after receipt of complaint - accepted (Para 15).
P.D. Dinakaran, J.
This appeal is directed against the judgment of the learned Additional Sessions Judge, Dharmapuri, dated 11. 2005 made in S.C.No.74 of 1990, acquitting the respondent/A-1 from the charge of murder. Totally, there were three accused, against whom charges were framed and it is reported that the other two accused died pending trial and hence, the trial proceeded only as against the respondent/A-1.
2. For the sake of convenience, the other two deceased accused will be referred as per their rank in the charges, i.e., Accused Chinnasamy and Accused Govindan will be referred as A-2 and A-3 and the respondent/accused will be referred to as respondent/A-1.
1. The charge against the respondent/A-1, is that he along with A-2 and A-3, due to a dispute regarding partition of a property, on 24. 1988, at about 8.30 p.m., with an intention to cause the death of the deceased Ramasamy, inflicted injuries on him with a rice pounder and the deceased succumbed to the injuries while he was taken to the hospital, and thereby committed the offence under Section 302 read with 34 IPC.
2. The second charge is that during the course of same transaction, the respondent/A-1 and other accused inflicted injuries on P.W.4, when he intervenued and thus, committed an offence punishable under Section 324 read with 34 I.P.C. There are other charges framed, which need not be stated hereunder, as they were framed against other deceased accused.
1. The case of the prosecution, as unfurled by the oral and documentary evidence, is stated as hereunder:
(a) P.Ws.1 and 2 are the daughter and son of the deceased Ramasamy. P.W.3 is the wife of the deceased Ramasamy. P.W.4 is the husband of P.W.1 and P.W.5 is the younger brother of P.W.3, i.e. brother-in-law of the deceased. The deceased was residing with his wife and children at Errapatti and P.W.1 was residing at Bettagoundanur. The father of the deceased Ramasamy had two wives and the deceased was the son born through first wife and the accused are the sons through the second wife. Few days prior to the date of occurrence, the deceased picked up a quarrel with his wife, P.W.3 and children, and hence, they left the house and went to the house of P.W.1. At that time, the deceased was alone and the accused, by means of fraud, persuaded the deceased in order to grab the land adjacent to the land of A-3. But, P.W.3 was pacified by P.W.1 and she returned back to the house of the deceased. Few days thereafter, P.W.1 also came and stayed with her parents.
(b) While so, on the date of occurrence, i.e. on 24. 88 at about 8.30 p.m., the deceased was sitting in front of the house along with P.W.3, his wife, P.W.1, daughter and other children and a lantern light was burning in front of the house of the deceased. At that time, A-3 came there and shouted at the deceased to return the land as agreed by him, or otherwise, he would do away with him, for which, the deceased retaliated by saying that he would not give the land and that he can do anything he wants, which ended in a wordy quarrel between the deceased and A-3. During the quarrel, A-3 fisted on the face of the deceased and on seeing this, P.W.2, son of the deceased, went and brought P.Ws.4, 5 and others. In the meantime, the respondent/A-1 and A-2 came to the scene and assaulted the deceased on his left forearm with a stick. The deceased also, taking an aruval which was kept on the pial of the house, inflicted injuries on A-3. At that time, the respondent/A-1 took the rice pounder lying on the pial of the house and beat the deceased on his head three times and on receipt of the same, the deceased ran from the place and he was chased by the respondent/A-1, who assaulted him on various parts of his body. The deceased fell down unconscious. When P.W.4, husband of P.W.1 intervened, he was attacked by the respondent/A-1 by inflicting an injury with the koduval on his left wrist and A-2 bit him and assaulted him with the rice pounder on his back, s
