(Prayer: Criminal Appeal filed under section 374 of Cr.P.C. to call for the records in S.C.No.207 of 2013 on the file of XVII Additional Sessions Judge, Chennai and to examine the same and set aside the judgment of conviction pronounced on 29.7.2016 as well as the sentences inflicted, fine amounts imposed thereby upon the appellant and to acquit the appellant and set him at liberty.)
A. Selvam, J
1. This Criminal Appeal has been directed against the convictions and sentences dated 29th day of July, 2016 passed in Sessions Case No.207 of 2013 by the XVII Additional Sessions Court, Chennai.
2. The case of the prosecution is that the first accused by name Kutty is the brother of the deceased by name Kesavan. The defacto complainant, by name Saranya is the wife of the deceased. Both the defacto complainant and deceased, at the time of the occurrence, have resided in No.21/4, Muthu Kumarasamy Street, Perambur, Chennai-11. In another portion of the house, the first accused and his mother, sister and her husband have resided. The first accused has used to take water from the borewell of the deceased to his water supply service business and the same has been objected to by the deceased on 6.8.2012. The first accused has had quarrel with the deceased. The deceased has broken the motor pumpset. Having enraged at the conduct of the deceased, on 7.8.2012 at about 10.15 p.m., both the accused have attacked the deceased and due to their overtacts, he passed away. After occurrence, the defacto complainant, who is none other than the wife of the deceased, has given a complaint and the same has been registered in Crime No.1204 of 2012. The said complaint has been marked as Ex.P.17.
3. On receipt of Ex.P.17, the investigating officer, (P.W.18) has taken up investigation, examined connected witnesses and also made arrangements to conduct autopsy on the body of the deceased and accordingly, Dr.Murugesan (P.W.14) has conducted postmortem and he found the following external and internal injuries:
i. An oblique cut wound with regular margin 10x2cmxbone deep on the right side of the forehead extending from the hair lone to the outer angle of the right eye.
ii. An oblique cut wound 2x1cmxbone deep on the angle of the right lower jaw
iii. An oblique cut wound with regular margin 20x4cmxbone deep on the right side cheek extending from the upper end of the right ear to the inner third of the right lower jaw exposing the cut fracture on the right zygomatic bone and mixilla
iv. An oblique cut wound with regular margin 7x1xbone deep on the back of upper end of the right fore arm
v. An oblique cut wound 3x1xbone deep on the palmar aspect of the distal phalanx of the right little finger
vi. An oblique cut injury 3x1xbone deep on the palmar aspect of distal phalanx of the right little finger
vii.An oblique cut injury 3x1xbone deep on the palmar aspect of proximal phalanx of right ring finger
viii.An oblique cut wound with regular margin 10x2xbone deep on the lower part of right side occipital region of the scalp. Sub scalp haematoma seen.
ix.An oblique cut wound with regular margin 5x1cmxmuscle deep on the upper part of back of both side of the neck
x.An oblique cut wound 12x3xbone deep on the outer aspect of the lower third of the left upper arm.
xi.An oblique cut wound 10x5cmxbone deep on the back of upper third of the left fore arm
xii.An oblique cut wound 3x1xmuscle deep on the outer aspect of middle of the left fore arm
xiii.An oblique chop wound amputation at the lower end of the left fore arm 2 cm above the left wrist the upper end of the cut end of amputated hand was found separated and fit with cut end of the lower part of left fore arm and belong to the same individual
xiv.An oblique cut injury 10x2xbone deep on the dorsum of the left hand
xv.An oblique cut wound 3x1xbone deep on the dorsum of distal phalanx of the left second toe
xvi.An oblique cut wound 6x1cmxmuscle deep on the outer aspect of left shoulder joint
Heart: Normal in size, chambers Empty valves - NAD coronaries - patent great vessels - NAD
Lungs: Both lung normal in size, c/s pale, Hyoid bone, intact, larynx, trachea contain mucous froths mucosa congested. All other vital mid line structure of the neck were intact
Stomach: contains 20 gms partly digested cooked food material with no specific odour, Mucosa congested sub mucosal petechial haemorrhages seen. Small intestine contained 50 ml bile stained fluid with no specific odour . Mucosa-congested sub mucosa1 petechial haemorrhages seen. Large intestine distened with gas. Liver, spleen and kidneys: normal in size, c/s pale,
Pelvis, spinal column and Hyoid bone: Intact, Brain: Normal insize, c/s pale, scalp, vault and base of the skull and membranes were intact The Postmortem Certificate has been marked as Ex.P.12.
5. The Investigating Officer, viz., P.W.18 has continued investigation and after completing the same, laid a final report on the file of V Metropolitan Magistrate, Egmore, Chennai and the same has been taken on file in P.R.C.No.23 of 2012.
6. The V Metropolitan Magistrate, Egmore, Chennai, after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Chennai Division and the same has been taken on file in Sessions Case No.207 of 2013 and subsequently made over to the file of the trial court.
7. The trial court, after considering the available materials on record and after hearing arguments of both sides, has framed the first charge against both the accused under Section 450, second charge against them under section 302 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.
8. On the side of the prosecution, P.Ws.1 to 19 have been examined and Exhibits P.1 to P.26 and Material Objects 1 to 4 have been marked.
9. When the accused have been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused.
10. The trial court, after hearing arguments of both sides and upon perusing relevant evidence available on record, has found the first accused guilty under Section 450 of the Indian Penal Code and sentenced him to undergo 10 years simple Imprisonment and also imposed a fine of Rs.10,000/- with usual default clause. Likewise, he has been found guilty under section 302 of the Indian Penal Code and sentenced him to undergo life Imprisonment and also imposed a fine of Rs.15,000/- with usual default clause. The trial court has acquitted the second accused. Against the convictions and sentences passed by the trial court, the present Criminal Appeal has been filed at the instance of the first accused as appellant.
11. The sum and substance of the case of the prosecution is that the first accused is the brother of the deceased by name Kesavan. The defacto complainant is the wife of the deceased and at the time of the occurrence, both of them have resided in a house bearing Door No. 21/4, Muthu Kumarasamy Street, Perambur, Chennai 11. The first accused, his mother, sister and her husband have resided in a portion of the said house. The first accused has run a Water supply service business by way of taking water from the borewell of the deceased. On 6.8.2012, a quarrel has occurred between the first accused and deceased and due to that, the deceased has broken the motor pumpset and having enraged at his conduct, on 7.8.2012 at about 10.15 p.m., both the accused have trespassed into the house of the deceased and attacked him indiscriminately and due to their overtacts, the deceased has passed away.
12. The learned counsel appearing for the appellant/first accused has sparingly contended that in the instant case, so many persons have been examined as eye witnesses and none of them has supported the case of the prosecution and the trial court, without considering the fact that even a piece of evidence is not available so as to point out the guilt of the first accused/appellant, has erroneously found him guilty under sections 450 and 302 of the Indian Penal Code and therefore, the convictions and sentences passed by the trial court are liable to be interfered with.
13. The learned Additional Public Prosecutor has contended that the wife of the deceased (defacto complainant) has been examined as P.W.1 and in fact, she has given the complaint in question. During the course of examination, she has admitted her signature and further, the Doctor who admitted the then injured (deceased) has been examined as P.W.12 and his specific evidence is that he has seen the then injured (deceased) and the trial court, after considering the evidence given by P.Ws.1 and 12, has rightly found the appellant/first accused guilty under sections 450 and 302 of the Indian Penal Code, even though some of the eye witnesses have become hostile and under such circumstances, the convictions and sentences passed by the trial court are not liable to be interfered with.
14. The entire case of the prosecution hinges upon Ex.P.17, the Complaint, wherein it has been specifically stated about the motive for occurrence and also the details of attack alleged to have been made both the accused on the person of the deceased. The prosecution has set the law in motion only on the basis of Ex.P.17. The author of Ex.P.17 has been examined as P.W.1 and virtually, she has not supported the case of the prosecution except she admitted her signature found therein. Simply because P.W.1 has admitted her signature found in Ex.P.17, the Court cannot come to a conclusion that the evidence of P.W.1 has lent support to the case of the prosecution.
15. It is an admitted fact that the mother of P.W.1 has been examined as P.W.2. Mother of the deceased and first accused has been examined as P.W.3 and his sister has been examined as P.W.4 and they have not supported the case of the prosecution. Even most of the Mahazar witnesses have become hostile. Therefore, it is quite clear that even an iota of evidence is not available for the purpose of coming to a conclusion that the appellant/first accused has committed offences under sections 450 and 302 of the Indian Penal Code.
16. The trial court, without considering the lack of evidence on the side of the prosecution, has simply invited convictions and sentences against the appellant/first accused. Merely on the basis that P.W.1 has 11 admitted her signature found in Ex.P.17 and also on the basis of some flimsy evidence. The approach made by the trial court for convicting the appellant/first accused is totally erroneous. Therefore, viewing from any angle, the convictions and sentences passed by the trial court against the appellant/first accused are liable to be set aside.
In fine, this Criminal Appeal is allowed. The convictions and sentences dated 29.7.2016 passed against the appellant/first accused in Sessions Case No.207 of 2013 by the trial court are set aside. The appellant/accused is acquitted. Fine amounts, if paid, are ordered to be refunded to the appellant/first accused forthwith.