advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, October 10, 2015

Failures of Prosecution = Delay FIR, Non Recovery of Weapon and blood stained clothes , change in scene, subsequent material alterations in FIR , Previous enmity =The prosecution witnesses specifically stated that the weapon used was an iron pipe, however, alleged recovery was made of one iron rod. There is difference between an iron pipe and an iron rod. The alleged recovery was not proved by the witnesses, as PW7 and PW11 turned hostile. Upon examination there was no blood stain found on the weapon. Therefore, the prosecution failed to connect the alleged recovered weapon with the weapon used in the incident.The prosecution also failed to explain as to why the blood-stained clothes of PWs were not seized. The said fact would have testified the presence of witnesses at the place of occurrence. Also, the witnesses, at any time, did not depose or produce before the Court their blood-stained clothes. In light of the above, an adverse inference is drawn against the role of the prosecution which already made a material flaw by not examining any independent witness.Another view which disproves the prosecution story is that the witnesses deposed that they were attacked by glass tumblers, bottles, stones and wooden canes. However, none of these articles were recovered or seized by the prosecution from the place of incident. PW1 and PW2 though suffered simple injuries, the doctor (PW3) opined that the injuries could be sustained when entangled in a rough surface, if fallen on a rough surface, bruises could be sustained. There exists a possibility of minor scuffle at the place of incident. PW4 also deposed that there was a scuffle between respondent No.1 and the appellant (PW1). The prosecution has been able to prove the injuries sustained by the deceased. However, serious discrepancies arise from the depositions of the prosecution witnesses. The place of incident and the sequence of events are not proved. The weapon recovered could not be linked to the incident. The recovery itself is not proved. There is inordinate delay in lodging the FIR, which is in addition to the lack of genuineness of the FIR document itself. The possibility of subsequent material alterations cannot be ruled out. The defence examined one independent witness who deposed that the rod was in the hands of PW2 who accidentally struck the deceased while he intended the same on respondent No.1. It appears from the chain of events and previous enmity between the parties that there occurred a scuffle which grew hot and led to an injury which resulted into the death. However, it is not correct to impute the culpability on the accused when various inconsistencies occur in the evidences which are fatal to the case of the prosecution. Thus, in the light of the above discussion, we are of the opinion that the present appeal is devoid of merits, and we find no ground to interfere with the judgment passed by the High Court. The appeal is, accordingly, dismissed.

                                                              NON REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 341  OF 2012
D. THAMODARAN                                     APPELLANT
                                   VERSUS
KANDASAMY & ANR.                       RESPONDENTS



                               J U D G M E N T
Pinaki Chandra Ghose, J.
This appeal, by special leave, has been directed against  the  judgment  and
order dated 30.07.2010 passed by the High Court of Judicature at  Madras  in
Criminal Appeal  No.1030  of  2003,  whereby  the  High  Court  allowed  the
criminal appeal filed by respondent No.1 herein and acquitted him.

The facts of this case,  as  unfolded  by  the  prosecution,  are  that  the
appellant (PW1) was running a Soda Factory  under  the  name  and  style  of
“Suvai” and the 1st respondent herein was also running a Soda Factory  under
the name and style of “Rusi”. As the soda  bottles  of  the  1st  respondent
were said to have been used by the appellant, their relations were  strained
and consequently there was enmity between them.

On 13.04.2002 at about 9.00 pm, when the appellant (PW1) was  talking   with
Nedunchezhian (PW2), Iyengar (PW4) and Ramesh (PW5) at the  Bus  Stand  near
the Ladapuram Mariamman Temple,  accused Nos.1 to 6 came there  and  accused
No.1 (1st respondent herein) questioned the appellant as  to  how  the  soda
bottles from his factory had come to  the  appellant’s  factory.   Soon  the
argument between them grew hot and the appellant was surrounded  by  accused
Nos.2 to 6. Accused No.1 abused the appellant and started beating him.  Then
the father of the appellant – Durairaj (deceased) came there  and  tried  to
dispel the quarrel and pacify them. At that point of  time,  it  is  alleged
that respondent No.1 ran to the mini lorry parked nearby  and  took  out  an
iron rod (used for removing tyres) and gave a blow on the head of  Durairaj.
Durairaj fell down, bleeding with injuries, and was taken  to  the  hospital
but he was declared dead. There were other  allegations  of  beating,  stone
pelting, beatings by glass tumbler, wooden canes given by the other  accused
persons and PW1 and PW2 also suffered injuries. On hearing the hue and  cry,
the village people gathered  at  the  place  of  occurrence.  The  appellant
lodged the report same day at 11.30 p.m. at the  Perambalur  Police  Station
and the case was registered as Crime  No.174  of  2002  for  offences  under
Sections 147, 148,  323,  302  and  341  of  the  Indian  Penal  Code,  1860
(hereinafter referred to as “IPC”).  The accused persons  were  arrested  on
18.04.2002, and the alleged recovery of the weapon was made at the  instance
of Respondent No.1.

The post-mortem on the dead body was conducted  on  14.04.2002  and  it  was
opined that the deceased could have died due to shock and hemorrhage due  to
injuries sustained in vital parts, like brain and head and bone fracture.

Police filed challan against six accused and thereafter charges were  framed
against them under section 147, 148, 341, 323 and 302 of  IPC.  The  charges
were read over and explained to them. All the accused  persons  pleaded  not
guilty and claimed trial.

The Trial Court by  its  judgment  and  order  dated  27.06.2003,  convicted
Accused No.1 (respondent No.1  herein)  for  the  offence  punishable  under
Section 304 part II IPC, and acquitted  Accused  Nos.2  to  6,  disbelieving
the prosecution case. Aggrieved by the judgment  and  order  passed  by  the
Trial Court, respondent No.1 filed an appeal  before  the  High  Court.  The
High Court by the  impugned  judgment  and  order  allowed  the  appeal  and
acquitted respondent No.1 on the ground that the prosecution  case  suffered
from various infirmities, inconsistencies and inherent  improbabilities  and
hence the conviction was unsustainable in law.

The appellant (son of the deceased) has challenged before  us  the  judgment
of acquittal passed by the High  Court.   Mr.  Basant  R.,   learned  senior
counsel  appearing  for  the  appellant    vehemently   argued    that   the
prosecution has established a clear and cogent  story  which  is  consistent
with the evidence of PWs. 2, 4 and 5 and which is  further  corroborated  by
the medical evidence of PW3 (Doctor). The  said  eyewitnesses  have  clearly
established the role of respondent No.1 in the occurrence and  there  is  no
material contradiction in respect of the place  of  occurrence,  the  weapon
used and the single blow given on the deceased. To strengthen its case,  the
recovery of the weapon used was made at the  instance  of  respondent  No.1.
Learned senior counsel for the appellant further argued that  there  was  no
undue delay in lodging the FIR (Ex.P-1) and in sending the FIR to  the  area
Magistrate.

Mr.  Karpagavinayagam,  learned  senior  counsel  appearing  on  behalf   of
respondent No.1 argued that the High  Court  has  categorically  dealt  with
each of the argument and passed a detailed  judgment  pointing  out  serious
lacunae. Further, it was argued that the recovery  of  the  weapon  was  not
proved as  both  the  attesting  witnesses  turned  hostile.  The  iron  rod
recovered was not found to have any  contamination  of  blood.  The  defence
witness (DW1) successfully proved that weapon was in the hands of PW2  which
accidentally hit the deceased when it was  aimed  at  respondent  No.1.  The
other articles used in the attack i.e. glass tumbler,  bottles,  stones  and
wooden  canes  were  not  recovered.  Also  blood  stained  clothes  of  the
witnesses  were  not  taken   into   custody   and   there   exist   serious
contradictions in the depositions of the witnesses. This is in  addition  to
the fact that all the witnesses are interested  witnesses  and  despite  the
occurrence alleged to have taken place near  a  bus  stand,  no  independent
witness was called. Finally, the learned senior counsel for  the  respondent
argued  that  there  was  inordinate  delay  in  lodging  the  FIR  and  its
genuineness itself was doubtful on the ground that though  PW1  had  deposed
that he had given a written report by himself, but there  was  a  difference
in handwriting between the contents of the report and the signatures.

We have heard the learned senior counsel for the  parties  and  perused  all
the evidences and records of the case. At the foremost, the  infirmities  in
the depositions of the witnesses are argued.  The  four  witnesses  produced
are interested witnesses; three being in blood relation to the deceased  and
the fourth is a business  partner  of  PW1.  From  the  depositions  of  the
witnesses it is clear that all the witnesses lived  within  close  proximity
to the place of incident and the said place is close to a temple, bus  stand
and tea stall. PW1 has specifically  deposed  that  around  20  people  were
present at the time of incident and more people came there when the  scuffle
grew. The High Court rightly pointed out the lacunae  in  the  investigation
that despite the place of occurrence being a busy place, no independent  eye
witness was examined by the prosecution. The depositions made  by  the  four
witnesses also could  not  firmly  established  a  unified  story  as  their
versions differed on the point of  the  exact  place  of  incident  and  the
sequence of events.

The High Court rightly held that the delay in lodging the FIR has  not  been
explained by the prosecution. The incident is alleged to  have  occurred  at
around 9:30pm; thereafter the deceased was lying at the spot  for  about  20
minutes; the deceased was taken to the hospital at about 10:00-10:15pm;  and
the FIR was lodged by PW1 by giving a  report  in  his  own  handwriting  at
11:30pm. The distance between the place of  occurrence  and  the  Perambalur
Government Hospital is about 15km,  and  further  200  meters  away  is  the
Police Station. According to PW1, he brought the deceased to the  Perambalur
Government Hospital at 10pm. However, it is improbable  that  he  covered  a
distance of 15 km in very short time but took more than  an  hour  to  reach
the Police Station which was just 200 meters away. Thus, there  occurred  an
undue delay in lodging the FIR. Another infirmity in the genuineness of  the
FIR was pointed out by the defence as PW1 stated that he  made  the  FIR  in
his own handwriting. However,  upon  examination  the  handwriting  and  the
signature on the FIR were proved to be not matching with those of PW1.

The prosecution based on the medical opinion argued that there was only  one
blow which resulted into three  injuries.  The  doctor  without  seeing  the
weapon opined that the three  injuries  could  have  been  possible  with  a
single blow by iron rod and even after seeing the  weapon  held  on  to  his
opinion. Even though the above is proved,  the  prosecution  has  failed  to
prove the recovery of M.O.1 i.e. the iron  rod.  The  prosecution  witnesses
specifically stated that the weapon used was an iron pipe, however,  alleged
recovery was made of one iron rod. There is difference between an iron  pipe
and an iron rod. The alleged recovery was not proved by  the  witnesses,  as
PW7 and PW11 turned hostile. Upon  examination  there  was  no  blood  stain
found on the weapon.  Therefore,  the  prosecution  failed  to  connect  the
alleged recovered weapon with the weapon used in the incident.

The prosecution also failed to explain as to why the  blood-stained  clothes
of PWs were not seized. The said fact would have testified the  presence  of
witnesses at the place of occurrence. Also, the witnesses, at any time,  did
not depose or produce before  the  Court  their  blood-stained  clothes.  In
light of the above, an adverse inference is drawn against the  role  of  the
prosecution which  already  made  a  material  flaw  by  not  examining  any
independent witness.

Another view which disproves the prosecution story  is  that  the  witnesses
deposed that they were attacked  by  glass  tumblers,  bottles,  stones  and
wooden canes. However, none of these articles were recovered  or  seized  by
the prosecution from the place of incident.  PW1  and  PW2  though  suffered
simple injuries,  the  doctor  (PW3)  opined  that  the  injuries  could  be
sustained when entangled in a rough surface, if fallen on a  rough  surface,
bruises could be sustained. There exists a possibility of minor  scuffle  at
the place of incident.  PW4 also deposed that there was  a  scuffle  between
respondent No.1 and the appellant (PW1).

The prosecution has been  able  to  prove  the  injuries  sustained  by  the
deceased. However, serious discrepancies arise from the depositions  of  the
prosecution witnesses. The place of incident and the sequence of events  are
not proved. The weapon recovered could not be linked to  the  incident.  The
recovery itself is not proved. There is  inordinate  delay  in  lodging  the
FIR,  which is  in addition to the lack of genuineness of the  FIR  document
itself. The possibility of subsequent material alterations cannot  be  ruled
out. The defence examined one independent witness who deposed that  the  rod
was in the hands of PW2  who  accidentally  struck  the  deceased  while  he
intended the same on respondent No.1. It appears from the  chain  of  events
and previous enmity between the parties that there occurred a scuffle  which
grew hot and led to an injury which resulted into the death. However, it  is
not  correct  to  impute  the  culpability  on  the  accused  when   various
inconsistencies occur in the evidences which are fatal to the  case  of  the
prosecution.


Thus, in the light of the above discussion, we are of the opinion  that  the
present appeal is devoid of merits, and we find no ground to interfere  with
the  judgment  passed  by  the  High  Court.  The  appeal  is,  accordingly,
dismissed.


                                      …....................................J
                                                      (Pinaki Chandra Ghose)





                                       …...................................J
                                                   (R.K. Agrawal)

New Delhi;


October  07, 2015.



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.