March 2008 Mad by vQV681

VIEWS: 27 PAGES: 42

									                                        [2008 (1) T.N.L.R. 185 (Mad)]
                                            MADRAS HIGH COURT
BEFORE:
              M. JEYAPAUL, J.
                      SUNDARARAJAN AND OTHERS                                                      ...Petitioners
                                                Versus
                              INSPECTOR OF POLICE, CB-CID                                         ...Respondent
                [Criminal Revision Case No. 1964 of 2007, decided on 22 nd January, 2008]
        Criminal Procedure Code, 1973—Sections 223, 227 and 195 (1)(a)(i)—Indian Penal Code,
1860—Section 176—Discharge and joint trial—Petitioners are Sub-Inspector and constables—
Allegation against them is that where there were escorting accused persons and accused hatched
conspiracy to murder—Petitioner had knowledge of said conspiracy but they not informed police
authorities—Petitioner raised plea that there is a bar under Section 195 (1)(a)(i) to take cognizance
and joint trial is not permissible under Section 223—Application rejected by Trial Court—Validity
of—Held, charge-sheet submitted by Inspector can be construed as a complaint hence Court can take
cognizance—Further charge against petitioner being spectator is a distinct offence—Hence to be
charged separately—           However trial would be conducted simultaneously with other accused
persons—Petition dismissed.                            (Paras 14 to 20)
        Case law.—AIR 1962 SC 1206-relied on; AIR 1966 SC 1775; 1965 MLJ 348-referred.
        Counsel.—Mr. A. Padmanaban, for the petitioners; Mr. A. Saravanan, Govt. Advocate (Cri. Side),
for the respondent.
                                                   JUDGMENT
         M. JEYAPAUL, J.—The revision is directed against the dismissal of            discharge petition filed by
A-13 to A-16 in M.P.No. 51 of 2007 in S.C.No. 108 of 2007 on the file of the I Additional Sessions Judge,
Erode.
         2. The first petitioner is the Sub-Inspector of Police and petitioners 2 to 4 are the police constables
in Armed Reserve. A-1 to A-6 in Sessions Case No. 108 of 2007 allegedly committed murder of
Ravindranathan @ Ravi on 2.6.2004 at 6.00 p.m. in pursuance of the criminal conspiracy hatched by them.
The allegation as against the petitioners herein ranked as A-13 to A-16 is that when they escorted A-8 Ravi
alias Steel Ravi to the Court on 20.5.2004 at 4.30 p.m. and also at 6.20 p.m., the aforesaid criminal
conspiracy was hatched by the aforesaid accused with A-4 Balan, A-9 Madeswaran and A-10 Tajudeen to
murder Ravindranathan @ Ravi in their very presence. But, the petitioners, who had knowledge about the
said criminal conspiracy failed to inform the police authorities and thereby they committed an offence
under Section 176 of the Indian Penal Code.
         3. The petitioners would contend that there is a bar under Section 195 (1)(a)(i) of the Code of
Criminal Procedure to take cognizance of such           offences alleged to have been committed by the public
servant. Further, the joint trial of the petitioners along with the other accused is not permissible under
Section 223 of the Code of Criminal Procedure.
         4. The State would contend that the Court can take cognizance of any offence when it is clubbed
with other cognizable offences. As the offence has been allegedly committed by the petitioners during the
course of same         transaction which began with a criminal conspiracy and terminated with murder, joint
trial is permissible under Section 223 of the Code of Criminal Procedure, it is further submitted.
         5. The Trial Court has observed that the charge-sheet laid by the Inspector of Police who recorded
the statement can be considered as a         complaint for the purpose of Section 195 (1)(a)(i) of the Code of
Criminal Procedure. Therefore, there is no lacuna on the part of the State in                    prosecuting the
petitioners based on the charge-sheet which was tantamount to complaint for the scope of Section 195 (1)
(a)(i) of the Code of Criminal Procedure. The Trial Court has also held that the offence has been allegedly
committed by the petitioners only during the course of the very same            transaction and therefore, as per
Section 223 of the Code of Criminal            Procedure, joint trial is permissible. So saying, the Trial Court
dismissed the application seeking discharge.
         6. The points that arise for determination are—
       (i)     Whether the charge-sheet laid by the respondent would amount to complaint for the purpose
               of Section 195 (1)(a)(i) of the Code of Criminal Procedure.
      (ii)     Whether joint trial of the offence under Section 176 of the Indian Penal Code alleged to have
               been committed by the petitioners along with the offence under Section 320 of the Indian
               Penal Code is permissible under Section 223 (d) of the Code of Criminal Procedure.
         7. Learned counsel appearing for the petitioners would vehemently contend that the Trial Court has
totally ignored the bar under Section 195 (1)(a)(i) of the Code of Criminal Procedure for taking cognizance
of the       offence under Section 176 of the Indian Penal Code without any complaint in writing of the
public servant concerned or of some other public servant to whom he is administratively subordinate. It is
his further submission that the alleged offences charged as against the petitioners cannot be said to have
been committed during the course of the very same transaction. The offence alleged to have been
committed by the petitioners does not have any nexus with the criminal conspiracy or the murder alleged to
have been        committed in the aftermath of such criminal conspiracy. Therefore, joint trial is not at all
permissible even as per Section 223 (3) of the Code of Criminal Procedure.
         8. Learned Government Advocate (Criminal Side) would submit that our High Court has held in a
similar situation that the charge-sheet laid by the Inspector of Police who is a public servant would amount
to a complaint for the purpose of Section 195 (1)(a)(i) of the Code of Criminal Procedure. The knowledge
as to the conspiracy had been allegedly acquired by the          petitioners during the conspiracy which was
hatched by the other accused in this case. Therefore, Section 223 (d) of the Code of Criminal Procedure is
squarely attracted to the facts and circumstances of the case.
       9. Section 192 of the Code of Criminal Procedure would read that no Court shall take cognizance of
any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in
writing of the public servant concerned or of some other public servant to whom he is administratively
subordinate. It is quite clear from the aforesaid provision of law that it is not permissible for the Court to
take cognizance of offence under Section 176 of the Indian Penal Code as against the petitioners except on
a complaint in writing of the public servant.
        10. It has been held by this Court in Periyasamy Nadar, In re, 1965 MLJ 348, as follows:—
         “It would be unreasonable to classify the complaints of public        servants under Section 195 (1)
         (a) into complaint by public servants other than Police Officers and complaints by Police Officers
         and police reports by Police Officers and to exclude Police Reports by Police Officers from the
         purview of the section. The scope of the section is that before the Court could take cognizance of
         an offence against a public servant, the public servant should himself prefer a complaint in
         writing. There is no justification for treating the Police Officer differently and excluding the
         complaint from the Police Officer which is preferred in the form of a Police Report. The context
         of Section 195 clearly warrants the construction of the word              ‘complaint’ in Section 195
         (1)(a) to include even report of the Police Officer, when this is made by the Police Officer
         concerned as a public servant with a view to taking action against a person.”
        11. This Court has chosen to authoritatively hold in the aforesaid case that when the concerned
public servant is the police officer who laid the charge-sheet, the charge-sheet laid by him cannot be
excluded from the        definition of the complaint. Such a charge-sheet laid by the police officer who is the
public servant concerned shall be considered as a complaint for the purpose of Section 195 (1)(a) of the
Code of Criminal Procedure.
        12. In this case, based on Section 161 statement given by the                    witnesses before the
Investigating Officer and also based on the 164 statement recorded in this case, the Investigating Officer
has chosen to lay a final report not only against the other accused but also against the petitioners who
allegedly committed the offence under Section 176 of the Indian Penal Code.
        13. The learned counsel appearing for the petitioners submits an                authority reported in
Durgacharan v. State of Orissa, AIR 1966 SC 1775, wherein it has been held that without a complaint in
writing for the distinct offence under Section 186 of the Indian Penal Code, the same cannot be taken
cognizance of by the Court concerned. Further to circumvent the        provision under Section 195 (1) of the
Code of Criminal Procedure, the investigating agency cannot charge a person with an offence to which
Section 195 does not apply. Merely by changing the garb or label of an offence which is essentially an
offence covered by Section 195 of the Code of Criminal             Procedure, the Court cannot take cognizance
of such offence.
        14. The question whether a charge-sheet laid by the Inspector of          Police, a public servant who
came to know of the offence alleged to have been committed by the petitioners herein can be construed as a
complaint for the purpose of Section 195 (1)(a) of the Code of Criminal Procedure had not arisen in the
aforesaid judgment. Further, that was a case where some of the police officials and other public servants
were the victims of the occurrence. But, in the instant case, the victim is not the public servant. The public
servants are the alleged perpetrators of the crime under Section 176 of the Code of Criminal Procedure. The
Inspector of Police who has come to know of such an offence alleged to have been committed by the
petitioners, has rightly laid the charge-sheet under Section 176 of the Indian Penal Code also against the
petitioners. Such a charge-sheet can be construed, as per the ratio laid down by this Court, as a complaint
for the purpose of Section 195 (1)(a)(i) of the Code of Criminal Procedure. Here, in this case, the
respondent, Inspector of Police is the public servant concerned.
        15. It has been held in Daulat Ram v. State of Punjab, AIR 1962 SC 1206, that the complaint must
be in writing by the public servant concerned before taking cognizance of an offence under Section 182 of
the Indian Penal Code by the Court concerned. In that case, it appears that a public servant was attacked
and the official documents in his possession were robbed by the accused. Neither the public servant who
was attacked nor the Tahsildar concerned submitted any complaint in writing as per the mandates of
Section 195 (a) of the Code of Criminal Procedure. But, in this case, the petitioners, who are public
servants have allegedly perpetrated the crime. The Inspector of Police, who has been entrusted with the task
of investigation is the proper public servant who can lodge a complaint. As already held by this Court, the
charge-sheet laid by the Inspector of Police amounts to a complaint.
        16. In view of the above, the Court finds that the Court concerned has rightly taken cognizance of
the case for offence under Section 176 of the Indian Penal Code based on the final report filed by the
Investigating      Officer.
        17. As per Section 223 (d) of the Code of Criminal Procedure, the persons accused of different
offences committed in the course of same           transaction may be charged jointly. The question that arises
for determination is whether the alleged act of the petitioners has been committed during the course of
same transaction of the alleged criminal conspiracy which           culminated in murder. Of course, a person
can be tried for several distinct offences if they are committed in one series of acts so connected together as
to form the same transaction under Section 223 (d) of the Code of Criminal Procedure. The only condition
is that different offences should have been committed in the course of the very same transaction. The
phrase “same transaction” implies continuity of action and purpose. It must be established that each one of
the accused was so connected with the other accused that the act done by one of them may be said to have
been done jointly with the others. In other words, the expression “same transaction” would imply
onerous of purpose.
        18. In this case, the hatching of criminal conspiracy and commission of murder would come under
the category of “same transaction”. Being a mere spectator of the criminal conspiracy without participating
actively therein or in the murder that followed does not amount to participating in the very same
transaction, the reason being that the action of the spectator does not render continuity of purpose for the
criminal act committed by the other accused in hatching the conspiracy and committing the murder.
Inasmuch as the act of the petitioners who escorted the accused concerned was not closely connected by
continuity of purpose and progressive action towards a           common object of committing the murder, the
act of the petitioners does not fall under Section 223 (d) of the Code of Criminal Procedure. Further,
Section 223 implies discretion vested on the Trial Court for the sake of convenience of the trial. Even if
persons are accused of committing different offences in the course of the same transaction, it can very well
charge the persons separately and try the offences. The Legislature has carefully worded the provision in
order to confer discretion on the Trial Court.
        19. As it is found that the offences alleged to have been committed by the accused under Section
176 of the Indian Penal Code is a distinct offence which has no connection either with the criminal
conspiracy hatched or the murder allegedly committed by the other accused, in the interest of justice, the
petitioners will have to be tried separately by the Trial Court.
       20. In view of the above, the learned Trial Judge is directed to charge the petitioners separately for
offence under Section 176 of the Indian Penal Code and try them simultaneously with the other accused
and proceed with the trial of the case in accordance with law.
       21. With the above direction to the Trial Court, the revision preferred as against the dismissal of
discharge petition stands dismissed. M.P.No.1 of 2007 also stands dismissed.
                                                                                         Revision dismissed.



                                       [2008 (1) T.N.L.R. 190 (Mad)]
                                          MADRAS HIGH COURT
BEFORE:
             P.R. SHIVAKUMAR, J.
                      BALASARAVANAN AND ANOTHER                                                 ...Petitioners
                                                   Versus
                      THE STATE REP. BY SUB INSPECTOR OF POLICE                                 ...Respondent
                [Criminal Revision Case No. 1213 of 2005, decided on 31 January, 2008]
                                                                            st


       Criminal Procedure Code, 1973—Sections 482 and 320—Indian Penal Code, 1860—Section
498-A—Dowry Prohibition Act, 1961—          Section 4—Compounding of offence—Harrasment and
cruelty for dowry—Conviction by Trial Court—Session Judge reduced sentence—In mean time
settlement between parties and parties ready to    reunite—Hence this petition for compounding of
offence—Held,     offence not compoundable, however considering settlement sentence reduced to
period already undergone but conviction maintained.
                                                                                   (Paras 12 and 13)
       Case law.—2000 (3) SCC 7—relied on; 2003 SCC (Cri) 848—         distinguished.
       Counsel.—Mr. C.P. Sivamohan, for the petitioners; Mr. J.C. Durairaj, Public Prosecutor, for the
respondent.
                                                  JUDGMENT
        P.R. SHIVAKUMAR, J.—The accused in C.C.No.159 of 2001 on the file of the learned Judicial
Magistrate No.III, Vellore were prosecuted for offences punishable under Section 498-A, IPC and Section
4 of Dowry Prohibition Act. They were found guilty in respect of both the charges and convicted. Each one
of the petitioners/accused was sentenced to undergo rigorous imprisonment for two years and to pay a fine
of Rs.500/- and in default of payment of fine to undergo rigorous imprisonment for a further period of three
months for the offence under Section 498-A, IPC. For the offence under Section 4 of Dowry Prohibition
Act each of the petitioners was sentenced to undergo rigorous imprisonment for six months. No fine was
imposed for the said offence.
        2. As against the conviction and sentence, the revision petitioners herein preferred an appeal in
C.A.No.137 of 2004 before the learned Principal               Sessions Judge, Vellore. The learned Principal
Sessions Judge, Vellore      allowed the said appeal in part, confirming the conviction recorded by the trial
Court in respect of both the offences. The sentence imposed on the revision petitioners/accused in respect
of the offence punishable under         Section 4 of the Dowry Prohibition Act was confirmed. The lower
appellate Court modified the substantive sentence imposed on each one of the                          revision
petitioners/accused for the offence under Section 498-A, IPC and reduced the same into six months’
rigorous imprisonment from two years’ rigorous imprisonment. However, while reducing the substantive
sentence, the learned Principal Sessions Judge, enhanced the fine amount for the said offence from Rs.500
to Rs.5,000/-. The learned Principal Sessions Judge also directed payment of Rs.8,000/- as compensation to
the wife of the first   petitioner herein out of the total fine amount of Rs.10,000/- to be collected from the
revision petitioners/accused.
        3. Questioning the correctness and legality of the said judgment of the lower appellate Court, the
present criminal revision case has been filed     under Sections 397 and 401, Cr.P.C.
        4. This Court heard the arguments advanced on both sides and           perused the materials available
on record.
        5. The accused who were convicted by the trial Court for the offences punishable under Sections
498-A, IPC and Section 4 of Dowry Prohibition Act are the petitioners in the present criminal revision case.
Pursuant to the alleged ill-treatment and harassment, demanding dowry, the de facto          complainant who
is none other than the wife of the first petitioner herein gave a complaint based on which, the criminal case
was registered. The same ended in conviction before the trial Court. The conviction was confirmed but the
sentence was modified by the lower appellate Court. After the present criminal revision case was admitted,
the dispute between husband and wife was referred to the Lok Adalat held at Vellore and before the Lok
Adalat, the husband (first petitioner) and wife (Prema—the de facto complainant) agreed for reunion.
Pursuant to the settlement arrived at in the Lok Adalat held on 14.07.2006, Prema—de facto complainant
filed an affidavit narrating the circumstances under which she preferred to settle the matter with her
husband and mother-in-law who are the petitioners in this present criminal revision case.
        6. The learned counsel for the petitioners in this revision case submitted that though the offence
under Section 498-A, IPC and Section 4 of Dowry Prohibition Act are not compoundable as per Section
320, Cr.P.C., considering the welfare of the de facto complainant (wife) the parties could be        allowed to
compound the offence by exercising the inherent powers of the High Court under Section 482, Cr.P.C.
        7. The learned counsel for the petitioners relied on the judgment of the Honourable Supreme Court
in B.S.Joshi v. State of Haryana reported in 2003 SCC (Cri) 848 in support of his contention that even
offences which are not shown to be compoundable in Section 320, Cr.P.C. can be allowed to be
compounded in exercise of the inherent powers of the High Court under Section 482, Cr.P.C.
        8. In the above said case, the accused therein approached the High Court under Section 482, Cr.P.C.
for quashing the First Information Report based on the strength of an affidavit of the wife of the accused
therein, who actually happened to be the de facto complainant, to the effect that the First Information
Report had been registered at her instance due to temperamental differences and implied imputations and
that the dispute had been settled as she and her husband had agreed for mutual divorce.
        9. It is obvious from the above said judgment of the Honourable           Supreme Court even before
completion of investigation and filing of final report (charge-sheet), the petition under Section 482, Cr.P.C.
was filed       supported by the affidavit of the de facto complainant. Only in the above said circumstances,
the Honourable Supreme Court was inclined to quash the First Information Report in the said case. Even in
the said case it has been observed that cases which do not come within the purview of Section 320, Cr.P.C.
cannot be allowed to be compounded.
        10. The offence alleged therein in the case before the Honourable                Supreme Court were
punishable under Sections 498-A and 406, IPC. Of course, the offence under Section 406, IPC, subject to
the ceiling of the amount involved, is compoundable. So far as the cruelty to women punishable under
Section 498-A, IPC is concerned, the same is not compoundable. When the said woman herself came
forward with an affidavit that she had lodged the complaint due to temperamental differences and with
implied imputations, and that subsequently she entered into a compromise with her husband           pursuant to
which they applied for mutual divorce, the Court could not          expect any clear cut and positive evidence
from her for the proof of the offence alleged. The said circumstances couple with the endeavor to see that
the proceeding not be allowed to prevent the woman from settling earlier in her life seems to have made the
Honourable Supreme Court to quash the First Information Report. The relevant part of the observation
made by the Honourable Supreme Court in the said case is as follows:
          “There may be many reasons for not supporting the imputations. It may be either for the reason
          that she has resolved disputes with her husband and his other family members and as a result
          thereof she has again started living with her husband with whom she earlier had differences or she
          has willingly parted company and is living happily on her own or has married someone else on the
          earlier marriage having been dissolved by divorce on consent of parties or fails to support the
          prosecution on some other similar grounds. In such           eventuality, there would almost be no
          chance of conviction. Would it then be proper to decline to exercise power of quashing on the
          ground that it would be permitting the parties to compound non-compoundable offences? The
          answer clearly has to be in the “negative”. It would, however, be a different matter if the High
          Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.”
        Therefore, this Court is not in a position to accept the contention of the learned counsel for the
revision petitioners that the de facto complainant and the revision petitioners could be allowed to
compound the offence in the case on hand. On the other hand, the compromise and reunion shall be
grounds on which reduction of sentence can be considered.
        11. Referring to an earlier decision in G.V.Rao v. L.H.V.Prasad         reported in 7 (2000) 3 SCC, in
the above said judgment itself the Honourable Supreme Court has observed as follows:
         “Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle
         down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often
         assume serious proportions resulting in commissions of heinous crimes in which elders of the
         family are also involved with the result that those who could have eroxced and brought upon
         rapproachement are         rendered helpless on their being arrayed as accused in the criminal case.
         There are many other reasons which need not be mentioned here for not encouraging matrimonial
         litigation so that the parties may ponder over their defaults and terminate their disputes
         amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and
         years to conclude and in that process the parties lose their “young” days in chasing their “cases” in
         different Courts.”
        The said observations are very much applicable to the facts of the case on hand also due to alleged
cruelty and harassment which are no doubt matrimonial dispute, the criminal case came to be registered
against the revision petitioners. Of course, the case ended in conviction before the trial Court and the same
was confirmed by the lower appellate Court. Now, after conviction, the revision petitioners/accused seems
to have realised their mistake and agreed to give a new lease of marital life to PW1-de facto
complainant. The said settlement has been arrived at before the Lok Adalat conducted on 14.07.2006 at
Vellore. It has been reported that pursuant to the settlement the first petitioner herein and his wife (P.W.1)
are living together as husband and wife. It is obvious that in case the petitioners are put behind the bars
even after the settlement, the said settlement may      eventually prove to be ineffective and unsuccessful in
ensuring the de facto complainant an earlier settlement in her life. Therefore, this Court comes to the
conclusion that in view of the settlement arrived at in the Lok Adalat there is every justification for this
Court to interfere with the quantum of sentence of imprisonment awarded by the lower appellate Court.
        12. In the light of the above said observation made by the Honourable Supreme Court, this Court is
of the view that the conviction recorded by the Courts below cannot be set aside and that the interest of
justice shall be met by modifying the sentence. Admittedly, the total fine amount of Rs.10,000/- was
already collected from the revision petitioners (Rs.5,000/- each) and out of the said amount, a sum of
Rs.8,000/- was paid to P.W.1-the de facto             complainant as directed by the lower appellate Court.
Therefore, no useful purpose will be served by interfering with the said part of the sentence. This Court is
of the considered view that substantive sentence of imprisonment can be modified by restricting the
sentence of imprisonment to the period already undergone by the revision petitioners.
        13. In the result, this criminal revision case is disposed of by reducing the substantive sentence of
imprisonment from six months to the period of imprisonment already undergone. Subject to the said
modification, in all other respects, the judgment of the lower appellate Court shall stand     confirmed.
                                                                                          Revision disposed of.

                                       [2008 (1) T.N.L.R. 194 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
             P.R. SHIVAKUMAR, J.
                       KAMAL @ KAMALAHASAN                                                        ...Petitioner
                                               Versus
                              STATE BY INSPECTOR OF POLICE                                       ...Respondent
                [Criminal Revision Case No. 1333 of 2005, decided on 5 th February, 2008]
      Criminal Procedure Code, 1973—Section 397—Indian Penal Code, 1860—Section 379—
Theft—Motorcycle stolen and number plate changed—Conviction recorded by Trial Court and
upheld by Sessions Court—Validity of—Held, no illegality in concurrent finding shown hence no
interference warranted—However considering only case against revisionist sentence reduced to six
months—Revision partly allowed.                                                       (Paras 7, 9
and 10)
        Counsel.—Mr. C. Ramkumar, for the petitioner; Mr. R. Munniapparaj, Government Advocate (Cri.
Side), for the respondent.
                                                   JUDGMENT
        P.R. SHIVAKUMAR, J.—This criminal revision case has been brought forth by the petitioner herein
who was convicted by the trial Court for an offence punishable under Section 379, IPC and sentenced to
undergo         Rigorous Imprisonment for a period of one year. The appeal against the said conviction and
sentence was dismissed by the lower appellate Court.
        The facts leading to the filing of the criminal revision case can be briefly stated thus:
        A case was registered on the file of Tiruppur North Police Station in Crime No.629 of 2000 against
the petitioner in the criminal revision case for the alleged offence punishable under Section 379, IPC on the
allegation that he committed theft of a motorcycle belonging to one Karuppusamy (P.W.1) on 27.06.2000
at about 19.00 hours, when the said motorcycle had been parked in front of Viswam Mess, Kongu Main
Road, Thiruppur. It is the further case of the prosecution that the accused changed the number plate by
displaying a bogus Registration No.TN-59-D-7664 and was caught by the Police on 30.05.2000 at about
5.00 a.m. After investigation,P.W.5, the Sub Inspector of Police submitted a final report on the file of
learned Judicial Magistrate No.I, Tiruppur and the same was taken on file in C.C.No.65 of 2001. After
appearance of the petitioner/accused, necessary charge was framed and the petitioner/accused pleaded not
guilty. In the trial that followed, five       witnesses were examined, six documents were marked and one
material object was produced on the side of the prosecution. The complaint lodged by P.W.1 and the First
Information Report prepared in the printed format have been marked as Exs.P.1 and P.5 respectively. The
observation mahazar and the rough sketch prepared by the Investigating Officer for the place from where
the motorcycle was allegedly stolen by the accused have been marked as Exs.P.2 and P.6 respectively. The
admissible part of the confession        statement of the petitioner/accused leading to the discovery of the fact
that the motorcycle which he was using was the one found missing as per the complaint of P.W.1 has been
marked as Ex.P.3 whereas the seizure mahazar for the recovery of motorcycle has been marked as Ex.P.4.
The motorcycle itself has been produced before the trial Court and has been marked as M.O.1. P.W.2
Palanisamy and P.W.3 Elango are the attestors of observation mahazar. P.W.4 Loganathan is the person in
whose presence, the confession statement by the accused was recorded and the motor cycle was recovered
under Ex.P.4, seizure mahazar. After investigation, P.W.5, the Sub              Inspector of Police submitted a
final report on the file of learned Judicial Magistrate No.I, Tiruppur and the same was taken on file in
C.C.No.65 of 2001.            After appearance of the petitioner/ accused, necessary charge was framed and
the petitioner/accused pleaded not guilty. In the trial that       followed, five witnesses were examined, six
documents were marked and one material object was produced on the side of the prosecution.
        3. When the incriminating materials found in the evidence of the           prosecution were pointed out
to the accused and the accused was examined under Section 313, Cr.P.C, he denied them to be false. No
witness was        examined and no document was marked on the side of the accused. The trial Court, after
considering the evidence brought before it, came to the           conclusion that the charge against the accused
was proved beyond reasonable doubt, convicted him for the offence punishable under Section 379, IPC and
sentenced him to undergo rigorous imprisonment for a period of one year by Judgment dated 04.11.2004 in
C.C.No.65 of 2001.
        4. As against the said order of conviction and sentence, the petitioner herein preferred an appeal in
C.A.No.492 of 2004 before the Principal           Sessions Judge, Coimbatore and the same was made over to
the Additional Sessions Judge, (Fast Track Court No.II), Coimbatore. The learned                      Additional
Sessions Judge, (Fast Track Court No.II), Coimbatore, after hearing the arguments advanced on both sides,
dismissed the appeal by confirming the order of conviction recorded and the sentence imposed by the trial
Court. 5. Questioning the correctness and legality of the judgment of the learned Additional Sessions
Judge, (Fast Track Court No.II), Coimbatore, the present criminal revision case has been filed by the
petitioner/accused.
         6. This Court heard Mr.C.Ramkumar, learned counsel for the                              petitioner and
Mr.R.Munniapparaj, learned Government Advocate (Cri.Side) representing the State.
         7. The learned counsel for the revision petitioner in this case has         submitted that though the
revision has been filed challenging the order of conviction as well as the sentence, the challenge made to
the order of          conviction is not pressed and that the revision may be heard regarding the quantum of
sentence alone. In view of the said submission made by the learned counsel for the petitioner (revision
case) it is unnecessary to traverse the evidence of the prosecution regarding the finding of the Courts below
holding the revision petitioner/accused guilty of the offence punishable              under Section 379, IPC.
However, it should also be appropriate to mention here that after going through the materials available on
record in this case, this Court is not able to find any error or illegality in the concurrent finding of the
Courts below holding the revision petitioner/accused guilty of the offence punishable under Section 379,
IPC. Hence, no interference can be made with the order of conviction recorded by the trial Court and
confirmed by the lower appellate Court.
         8. The learned counsel for the petitioner in this revision case         contended that the award of a
sentence of one year rigorous imprisonment is excessive and disproportionate and hence the same has got
to be reduced.
         9. Mr.R.Munniapparaj, learned Government Advocate (Criminal Side) did not dispute the
contention of the counsel for the petitioner that except the case on hand no other case was ever registered
against the revision petitioner/accused for similar type of offence and that the present case being the only
case against the revision petitioner/accused leniency should be shown in the matter of punishment. It is true
for an offence under Section 379, IPC the punishment prescribed is fine or imprisonment of either
description for a period which may extend upto three years or with both. It is true that an accused proved to
have committed the said offence can even be fined                 without awarding any substantive sentence of
imprisonment. But considering the fact that the revision petitioner/accused in this case has not only
committed theft of a motorcycle of Yamaha brand, but also was using the same displaying a bogus number
plate, this Court comes to the conclusion that it is not a fit case in which the Court has to be content with
imposing fine alone and that the Courts below have rightly held that the case          warranted imposition of
substantive sentence of imprisonment. However, taking into account the fact that the present case happened
to be the only case against the revision petitioner/accused, this Court feels that the     substantive sentence
of imprisonment awarded by the trial Court and             confirmed by the lower appellate Court is slightly on
the higher side and that the same needs downward revision to some extent. This Court feels that the ends of
justice shall be met by reducing the sentence of imprisonment to six months’ rigorous imprisonment from
one year rigorous            imprisonment.
         10. In the result, the criminal revision case is partly allowed. The   order of conviction recorded by
the trial Court and confirmed by the appellate Court is hereby confirmed but the sentence alone is modified
from one year rigorous imprisonment to six months rigorous imprisonment.
                                                                                       Revision partly allowed.

                                       [2008 (1) T.N.L.R. 197 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
            M. JEYAPAUL, J.
                      AVM. K. SHANMUGAM AND OTHERS                                        ...Petitioners
                                               Versus
                     V. SHANTHI                                                          ...Respondent
                                                 And
                       G. KUMARESAN                                                         ...Petitioner
                                               Versus
                     V. SHANTHI                                                          ...Respondent
[Criminal O.P. Nos. 16367 and 18427 of 2007 and M.P. No. 1 of 2007 in Criminal O.P.No. 18427 of 2007,
                                    decided on 5th February, 2008]
       Criminal Procedure Code, 1973—Section 482—Indian Penal Code, 1860—Sections 415, 420
and 120-B—Quashing of proceeding—Cheating—Complaint case filed against petitioner for
obtaining Power of Attorney and agreement of sale by making misrepresentation and fraud in guise
of rectification of lease deed—Property sold out in exercise of power of attorney—No notice for
cancellation of power ever served upon petitioner—No legal evidence against accused—From
material on record it cannot be said that petitioner played fraud—One of accused who is Sub-
Registrar also performed his      duties only—Proceeding will be an abuse of process of law—Hence
quashed.                                                          (Paras 16 to 19)
       Case law.—2007 (1) LW (Cri) 80; 2007 (II) CCR 23 (SC)—relied on.
       Counsel.—Mr. A. Raghunathan, Senior Counsel, for T.I. Ramanathan, for the petitioners; Mr. A.
Natarajan, Senior Counsel for Mr. K.P. Chandrasekaran, for the respondent.
                                                  JUDGMENT
         M. JEYAPAUL, J.—Criminal O.P.No.16367 of 2007 is laid by A1 to A7 and Criminal
O.P.No.18427 of 2007 is laid by A8 in C.C.No.2677 of 2007 on the file of the learned XIV Metropolitan
Magistrate, Egmore, Chennai, seeking quashment of the aforesaid proceedings initiated by the respondent
as against them.
         2. The sum and substance of the complaint is that the first and second accused having made
misrepresentation to the complainant that some           rectification deed was to be executed in connection
with the lease deed           already executed by her in favour of accused 3 to 7, played fraud upon the
complainant and got the subject Power of Attorney executed in favour of first and second accused and
thereafter, the first accused executed sale deed in favour of accused 3 to 7, in spite of the cancellation of the
said Power of Attorney. The allegation as against the 8 th accused is that he being the           Sub-Registrar
conspired with the first and second accused to practise fraud upon the complainant. It has been alleged that
the white colour offence was deliberately designed and committed by the accused with the sole intention of
cheating the complainant.
         3. The said private complaint has been filed under Section 200 of the Code of Criminal Procedure
alleging commission of the aforesaid offences punishable under Sections 415, 420 and 120-B of IPC.
         4. The accused 1 to 7 have contended that the allegation as such, does not prima-facie indicate the
commission of any offence as alleged by the complainant. She herself went to the Registrar’s office and
executed on her own the Power of Attorney authorising A1 and A2 to execute the sale deed in favour of A3
to A7. No fraudulent representation was made by the first and second accused to the complainant. The
accused 1 and 2 have already paid a sum of Rs.1 lakh to the complainant towards a part of sale
consideration even prior to the date of execution of the Power of Attorney by the complainant in their
favour. The deed of cancellation and the notice issued               subsequent to the deed of cancellation to
accused 1 and 2 would go to show that the complainant on her own volition executed the Power of
Attorney in favour of accused 1 and 2. Therefore, accused 1 to 7 have contended that no case has been
made out as against them in the complaint lodged by the complainant.
         5. The eighth accused would contend that he had only performed his official duty of registration of
the Power of Attorney in favour of accused 1 and 2 and the agreement of sale executed by the complainant
in favour of accused 3 to 7. Therefore no criminal case can be laid as against the                 petitioner in
Cri.O.P.No.18427 of 2007, who has just discharged his official function.
         6. Learned senior counsel appearing for the accused would submit that accused 1 and 2 had not
received any intimation about the cancellation of the Power of Attorney given in their favour. Only for the
first time, they received a lawyer’s notice on 15.03.2007, long after the sale deed was         executed by the
first accused in favour of accused 3 to 7. It is his submission that the close reading of the deed of
cancellation of the Power of Attorney and the notice alleged to have been sent by the complainant to the
first and second accused on 11.12.2006 would disclose that the complainant has come out with a case that
she had infact executed the Power of Attorney in favour of accused 1 and 2. Very vague allegation of
misrepresentation and fraud has been alleged in the complaint. The deed of Power of Attorney was infact
drafted by the complainant herself and the same was registered by the          Registrar in the presence of the
complainant and not in the presence of accused 1 and 2.
        7. Referring to the statement of Bank account maintained by the 5 th accused, the learned senior
counsel for the accused would further contend that a sum of Rs.1 lakh was already parted with by the
Power of Attorney holders out of the total consideration of Rs.5 lakhs contemplated in the             agreement
of sale. Therefore, the learned senior counsel would vehemently submit that no case has been made out as
against accused 1 to 7. He would further contend that the Sub-Registrar who is the 8th accused has been
implicated in this case unceremoniously for the performance of his official duty of registration of the Power
of Attorney, the agreement of sale and the sale deed.
        8. The learned senior counsel appearing for the respondent/complainant would contend that a
telegram was already dispatched to the correct address of the accused 1 and 2 about the cancellation of the
Power of       Attorney allegedly executed in their favour. Accused 1 and 2 having come to know of such a
cancellation of the Power of Attorney have dodged to receive the telegram sent to them. A sum of Rs.1
lakh was parted with by accused 1 and 2 only in connection with the rectification of the lease deed and not
in connection with the execution of agreement of sale or Power of Attorney allegedly. There is a specific
allegation found in the complaint that there had been an intention to cheat the complainant making
misrepresentation at the time of the alleged execution of the Power of Attorney. There is a wide gap
between the sale consideration passed on under the sale transaction and the real market value of the
property. This Court cannot go into the             acceptability or otherwise of the allegations found in the
complaint, while dealing with the plea for seeking quashment of the criminal proceedings. When prima-
facie case has been made out, the accused will have to          necessarily face the prosecution before the trial
Court. Therefore, the learned senior counsel appearing for the complainant would submit that there is no
merit in the petition seeking quashment of the complaint laid by the complainant specifically alleging
criminal conspiracy and cheating.
        9. Of course, there is a specific allegation of cheating in the private complaint laid by the
complainant. The two documents, viz., the Power of Attorney as well as the agreement of sale were
obtained by accused 1 and 2 by making misrepresentation and also by playing fraud upon the complainant
in the guise of rectification of the lease deed already executed by the complainant in favour of the accused
3 to 7, it is charged therein. The         question of quashing the criminal proceeding embarking upon an
enquiry as to the reliability of evidence and sustainability of accusation does not arise. But, if a frivolous or
vexatious complaint is laid with malice or mala fide, of course this Court has every authority to interfere
with the criminal prosecution and quash the same. Even in a case where the allegations in the face of
records is absurd and inherently improbable, quashing is highly warranted.
        10. The complainant has come out with some reason for the cancellation of the Power of Attorney.
The specific reason assigned in the deed of cancellation of Power of Attorney dated 04.12.2006 for the
cancellation of the Power of Attorney is that the power agents had not acted in accordance with the terms
and conditions of the power granted to them. In the deed of            cancellation of Power of Attorney, the
complainant has unambiguously          admitted the execution of the deed of Power of Attorney in favour of
accused 1 and 2. As rightly pointed out by the learned senior counsel                appearing for the accused,
misrepresentation and fraud allegedly perpetrated by the accused while executing the deed of Power of
Attorney by the         complainant were not cited as reasons for the cancellation of the same. It is not as if
the said deed of cancellation of Power of Attorney was inadvertently drafted without accommodating the
actual reason for the cancellation of the Power of Attorney. The subsequent notice dated 11.12.2006 issued
by the complainant addressing the accused 1 and 2 would also read unambiguously that the deed of Power
of Attorney was cancelled as the accused 1 and 2 had acted against the interest of the complainant. There is
no whisper therein about the misrepresentation or fraud allegedly perpetrated by the accused 1 and 2 as
against the complainant while executing the agreement of sale and also the Power of Attorney.
        11. It is not as if the complainant is totally an unlettered woman who is not wordly wise. On a
perusal of the deed of Power of Attorney, it is found that there is a clear indication that it was she who
drafted the Power of Attorney. As rightly pointed out by the learned senior counsel for the         accused, the
presence of the Power of Attorney holders before the Registrar is not at all necessary. It is only the
executant of the Power of Attorney who shall be present for the purpose of registration of the Power of
Attorney.
        12. The accused also have demonstrated before this Court that even before the agreement of sale
and the deed of Power of Attorney were          executed by the complainant, a sum of Rs.1 lakh was already
parted with by the 5th respondent in favour of the complainant. Of course learned senior counsel appearing
for the complainant would submit that the said amount was paid only in connection with the proposed
rectification of the lease deed already executed by the complainant in favour of petitioners 3 to 7. But the
facts and circumstances of the case set out above would show that there was no rectification deed executed
as alleged. But only a Power of Attorney and an agreement of sale have been executed by the respondent.
         13. The learned senior counsel appearing for the respondent would cite an authority in M/s. Indian
Oil Corporation v. M/s. NEPC India Ltd., 2007 (1) L.W.(Cri.) 80, wherein the Honourbale Supreme Court
has held that it is not necessary that the complainant should verbatim reproduce in the body of the
complaint all the ingredients of the offences he alleges, nor is it necessary that the complainant should state
in so many words that the intention of the accused was dishonest or fraudulent.
         14. Of course, the details with regard to the manner in which the misrepresentation was made and
fraud was practised have not been detailed in the complaint. As rightly pointed out by the learned senior
counsel       appearing for the respondent, in the background of the aforesaid ratio laid down by the Hon’ble
Supreme Court, the complaint cannot be thrown out on the ground that the necessary details constituting
the offence alleged were not given in the complaint.
         15. The learned senior counsel appearing for the complainant quoted yet another decision in
T.Vengama Naidu v. T.Dora Swamy Naidu and Ors., (2007) (II) CCR 23(SC). It has been held therein that
where the accused has dishonestly executed sale deed in favour of a third party after revocation of the
General Power of Attorney given in his favour, the complaint alleging commission of offence of cheating
cannot be quashed, embarking upon the investigation with regard to the nature of transaction and the actual
commission of offence by the accused.
         16. That was a case where the revocation of the General Power of Attorney was duly intimated to
the accused. In spite of such a communication he received, the accused had chosen to alienate the property
on the basis of the revoked General Power of Attorney in favour of his daughter. But, in the instant case, it
is found that the accused 1 and 2 have not        received any intimation about the cancellation of the Power
of Attorney by the respondent before ever the first accused executed the sale deed in favour of accused 3 to
7. Further, on the own showing of the complainant, a Power of Attorney was executed by her in favour of
first and second accused and the same was cancelled only on the ground that the agents appointed therein
had not acted in terms of the power given in their favour. In view of the above, it is held that the said ratio
does not apply to the facts and circumstances of this case.
         17. Firstly, there is no legal evidence against the accused. Secondly, the allegations made against
the accused in the face of the materials        available on record and the stand taken by the respondent both
in the Deed of cancellation of Power of Attorney and the legal notice issued to the          accused 1 and 2 are
found to be so absurd and inherently improbable that no prudent man can ever reach a conclusion that there
is sufficient fraud for proceeding against the accused. Thirdly, there are sufficient materials as referred to
above to demonstrate that the complaint is a vexatious one lodged for the sake of annoyance or oppression.
         18. Coming to the allegation as against the Sub Registrar, who             registered the agreement of
sale, the deed of Power of Attorney and the sale deed executed by the first accused in favour of accused 3
to 7, it is found that he has only performed his official function. He is not supposed to verify whether there
was any misrepresentation or fraud pracitsed by the Power of Attorney holders on the principal who
executed the power in their favour. No other material also is available even to distantly indicate that he
conspired with the other accused to cheat the complainant in this case.
         19. In view of the above, the Court finds that the complaint as such given as against the accused is
not at all sustainable. It will be a miscarriage of justice if the accused 1 to 8 are directed to face a painful
and horrific experience of trial in the face of the vexatious and frivolous complaint given as against them.
Therefore, quashing the criminal proceedings in C.C.No.2677 of 2007 on the file of the XIV Metropolitan
Magistrate, Chennai, both these petitions stand allowed. Consequently, connected miscellaneous petition is
closed.
                                                                                                Petition allowed.

                                        [2008 (1) T.N.L.R. 202 (Mad)]
                                            MADRAS HIGH COURT
BEFORE:
             M. JEYAPAUL, J.
                     S. UDAYAKUMAR                                                          ...Petitioner
                                               Versus
                     STATE REP. BY INSPECTOR OF POLICE                                   ...Respondent
         [Criminal O.P. No. 21298 of 2007 and M.P.No. 1 of 2007, decided on 5 February, 2008]
                                                                             th


        Criminal Procedure Code, 1973—Section 482—Indian Penal Code, 1860—Sections 467, 468,
471, 477-A and 420 r/w Section 109—Quashing of proceeding—Petitioner was Legal Advisor of Co-
operative Bank—He gave about 1000 opinions to Housing Loan            aspirants—One of aspirants
produced document to which petitioner opined to be valid document—However later document
found to be forged—Charged under various provisions of Indian Penal Code—Validity of—Held, an
Advocate is not a detective of forged documents or an expert to give opinion as to forgery or
otherwise of a document—None of witnesses has come out with a revelation that           petitioner
fraudulently and dishonestly induced Bank to part with heavy loan—No material to show that
petitioner played supportive role in forging document offered as valuable security—Hence
prosecution against petitioner would be miscarriage of justice—Thus proceeding quashed.
                           (Paras 6 to 9)
        Counsel.—Mr. Sriramulu, Senior Counsel for Mr. R. Karthikeyan, for the petitioner; Mr. A.
Saravanan, Govt. Advocate (Cri Side), for the respondent.
                                                    JUDGMENT
         M. JEYAPAUL, J.—The petition is filed seeking to quash the criminal proceedings in C.C.No.16729
of 2006 on the file of the learned XVI            Metropolitan Magistrate, George Town, Chennai.
         2. The petitioner, ranked as fourth accused, stands charged with           offences punishable under
Sections 467, 468, 471, 477-A and 420 read with 109 of the Indian Penal Code.
         3. The petitioner would contend that he was the Legal Advisor for Tamil Nadu State Co-operative
Bank from 1986 to 2004. He had given about 1000 opinions to Housing Loan aspirants. One S.M.Syed
Kalimulla, Proprietor of Sardar Transport applied for a loan of Rs.1,65,00,000/- for purchase of ten Hitech
Buses by arranging a collateral security of 2.64 acres of land alleged to have belonged to one K.Varadappa
Naicker son of Kuppuswamy Naicker. Being the Legal Advisor, he perused the original documents,
Encumbrance Certificate and valuation certificates of the land bearing S.No.107/3/A1 and S.No.107/4 of
Madipakkam Village, Tambaram Taluk, Kancheepuram District and gave opinion that there was no
encumbrance in the said property. There is no allegation that he intended to cheat the Bank, it is
contended.
         4. Learned senior counsel appearing for the petitioner would submit that an Advocate, who has put
in more than 20 years in the High Court of Madras, has been charged uncharitably for the aforesaid
offences just for giving legal opinion about the marketability of the land of a borrower. It is his further
submission that none of the witnesses has spoken to the effect that the petitioner fraudulently and
dishonestly induced the Bank to part with the loan amount to the borrower on the basis of the opinion
furnished by him. None of the witnesses has also spoken to the role played by the petitioner in forging the
valuable securities. Therefore, the petitioner may be relieved of the aforesaid charges, he would finally
contend.
         5. Mr.A.Saravanan, learned Government Advocate (Cri. Side) would contend that the Bank lent
money only based on the opinion given by the petitioner and that therefore, the petitioner has to shoulder
the criminal liability for the offence of cheating committed by the borrower with the connivance of the
petitioner herein.
         6. There is no dispute to the fact that the petitioner was the Legal Advisor for Tamil Nadu State Co-
operative Bank during the period from 1986 to 2004. After all, the petitioner, who is a lawyer by
profession, is expected to offer his opinion based on the documents produced before him by the financial
institution concerned. On a perusal of the opinion given by the petitioner, it is found that he has given his
legal opinion based on the rerox copies submitted to him. He has also very scrupulously cautioned the
bank to accept the valuable security in the form of land offered by the                borrower subject to the
production of all original title deeds. It appears that subsequent to the opinion given by him, the Bank has
forwarded the original sale deeds and patta relating to the properties in S.No.107/A1 and 107/4
Madipakkam Village, Saidapet Taluk, Kancheepuram District to the             petitioner and he, having perused
those documents, has certified that he has verified the originals thereof.
        7. An advocate is not a detective of forged documents or an expert to give opinion as to the forgery
or otherwise of a document. The petitioner, having received the documents alleged to be originals, perused
them and certified that he verified the original documents also. A meticulous concoction of a document
would outsmart the original thereof in its form and       execution. It is only an expert or a detective in the
field unearthing forgery of documents can bring to light the duplicacy or concoction applying his expertise.
A Legal Advisor is not supposed to play the role of a document expert.
        8. Of course, the witnesses on the side of the prosecution have spoken to the fact that the petitioner
offered his legal opinion. None of the           witnesses has come out with a revelation that the petitioner
fraudulently and dishonestly induced the Bank to part with heavy loan. There is no material to show that
the petitioner played a supportive role in forging the document offered as valuable security by K.Varadappa
Naicker.
        9. No prima facie case has been made out as against the petitioner for the aforesaid offences he was
charged with. There will be miscarriage of justice if the petitioner, who is a reputed lawyer of more than 20
years standing in the High Court of Madras, is permitted to face such unsustainable criminal charges. The
legal profession itself will be in peril if such    contention of the prosecution, without any foundation or
basis, is accepted by the Court. Expressing anguish over the implication of a legal professional in such
charges just for offering legal opinion, the Court finds that the entire criminal proceedings as against the
petitioner is liable to be quashed.
        10. In view of the above, quashing the criminal proceedings as against the petitioner, who is ranked
as fourth accused in C.C.No.16729 of 2006, the petition stands allowed. The connected miscellaneous
petition stands closed.
                                                                                              Petition allowed.



                                       [2008 (1) T.N.L.R. 204 (Mad)]
                                          MADRAS HIGH COURT
BEFORE:
             M. JEYAPAUL, J.
                       SOMASUNDARAM AND OTHERS                                      ...Petitioners/accused
                                                Versus
                          KOTHANDAPANI                                       ...Respondent/Complainant
     [Criminal Revision Case No. 1368 of 2008 and M.P.No. 1 of 2008, decided on 8 th February, 2008]
        Negotiable Instruments Act, 1881—Sections 138 and 4—               Criminal Procedure Code,
1973—Section 397/401—Revision—              Maintainability of—Objection filed by accused revisionist
that           promissory notes which were unstamped cannot be marked during course of trial—
Further objection was that those documents not         appear to be promissory notes as there was no
unconditional undertaking to pay amount—However Trial Court rejected objection—Hence this
revision—Held, no revision can be preferred against an              interlocutory order and an order
which not terminate entire           criminal proceedings would be construed only as an interlocutory
order—Rejection of objection not terminate entire proceeding—Hence, revision not maintainable—
Thus, dismissed.           (Paras 6 to 9)
        Counsel.—Mr. R. Gandhi, SC, for Mr. R.G. Narendhiran, for the petitioners; Mr. N. Suresh, for
the respondent.
                                              JUDGMENT
        M. JEYAPAUL, J.—The revision is filed challenging the order passed by the learned Judicial
Magistrate No.1, Villupuram in C.C.No.64/2006.
         2. During the course of trial for the charge under Section 138 of the Negotiable Instruments Act, the
respondent herein marked certain             documents classifying them as promissory notes. The trial Court
chose to mark those documents. An objection was raised before the trial Court by the petitioners herein on
the ground that the promissory notes which were unstamped cannot be marked during the course of trial. It
has also been objected on the ground that those documents also do not appear to be              promissory notes
as there was no unconditional undertaking to pay the amount as defined under Section 4 of the Negotiable
Instruments Act, 1881. Therefore, those documents cannot be marked and entertained by the trial Court.
But the trial Court rejected the objection raised by the petitioners who are the accused in a case under
Section 138 of the Negotiable             Instruments Act.
         3. Aggrieved by such an order passed by the learned Judicial             Magistrate No.1, Villupuram,
the present revision was preferred.
         4. Learned senior counsel appearing for the petitioners would contend that the trial Court has erred
in admitting inadmissible documents classifying them as promissory notes. It is his further submission that
unstamped promissory notes should not have been entertained by the trial Court. Therefore, the learned
senior counsel would submit that the order passed by the learned Judicial Magistrate No.1, Villupuram will
have to be set aside.
         5. Learned counsel for the respondent/complainant would contend that no revision would lie as
against the interlocutory order passed by the trial Court. Secondly, the subject documents are not at all
promissory notes and they are only the receipts evidencing the payment made by the respondent to the
petitioners. The receipts can be admitted of course, subject to the payment of stamp duty and penalty
imposed by the trial Court. On these two grounds, revision petition laid seeking to set aside the order
passed by the learned Judicial Magistrate No.1, Villupuram, is not sustainable.
         6. As per Section 397 (2), Cr.P.C., no revision can be preferred as against an interlocutory order
passed in the trial proceedings. It has been well settled that an order which does not terminate the entire
criminal        proceedings would be construed only as an interlocutory order and not a final order. In this
case, it appears that an objection was raised for marking certain promissory notes in a case under Section
138 of the Negotiable       Instruments Act. Such objection was overruled by the trial Court giving certain
reasons. As rightly pointed out by the learned counsel for the            respondent/complainant the aforesaid
order passed by the trial Court does not terminate the entire proceedings initiated by the respondent herein.
Therefore, by no stretch of imagination, the order impugned can be              construed as a final order. The
order under challenge is only an interlocutory in nature and therefore, criminal revision petition cannot be
filed      invoking provision under Section 397, Cr.P.C.
         7. Coming to the merit of the case, on a careful perusal of the            impugned promissory notes
marked before the trial Court, it is found that those documents are neither promissory notes nor even
receipts for        payment of the amount inasmuch as there was no indication in the said documents that
there was an unconditional undertaking to pay the amount by the promisor and there was also no indication
that the receipt of some amount was acknowledged by the person who received the amount. We can at
best, construe such a document as some correspondence between the parties. Of course, the trial Court has
to decide the tenor of the documents which have come into existence between the parties at the fag end of
the trial.
         8. As the impugned documents are neither promissory notes nor                receipts and they are only
some correspondence between the parties, the question of collecting stamp duty and penalty does not arise
for consideration. Only when these documents are found to be unstamped promissory notes, the objection
raised by the petitioners herein can be sustained. But the documents have not been couched in such a
fashion.
         9. Therefore, the Court finds that there is no necessity to interfere with the order passed by the trial
Court. Further, the Court finds that the criminal revision as against the interlocutory order passed by the
trial Court is not at all maintainable. On those two grounds the revision fails and it stands dismissed.
Consequently connected miscellaneous petition is closed.
                                                                                             Revision dismissed.
                                      [2008 (1) T.N.L.R. 206 (Mad)]
                                         MADRAS HIGH COURT
BEFORE:
             P.R. SHIVAKUMAR, J.
                             A. MUTHUSAMY                                                       ...Appellant
                                                  Versus
                                G. AYYAPPAN                                                   ...Respondent
                     [Criminal Appeal No. 1396 of 2002, decided on 4 February, 2008]
                                                                       th


        Negotiable Instruments Act, 1881—Section 138/142—Dishonour of cheque—Allegation
against respondent of borrowing money and in return issuing post-dated cheque—Cheque on
presentation dishonoured for insufficient fund—Complaint filed—Respondent denied taking of any
loan and issuing of cheque—Complainant              produced Bank Manager who stated difference in
signature—On basis of material Trial Court dismissed complaint—Validity of —Held, in view of
denial of accused and evidence of Bank Manager Court below rightly dismissed complaint—No
interference warranted— Appeal dismissed.                                                        (Paras 7
and 8)
        Counsel.—Mr. M.M. Sundresh, for the appellant, Mr. S.A. Syed Haroon, for the respondent.
                                                JUDGMENT
        P.R. SHIVAKUMAR, J.—This appeal arises out of the judgment of the learned Judicial Magistrate
No.III, Erode acquitting the respondent herein, who stood the trial for an offence punishable under Section
138 read with 142 of the Negotiable Instruments Act in C.C. No. 177/2000. The said case had been taken
on file by the Trial Court based on a private complaint lodged by the appellant/complainant containing the
following allegations:
         “On 20.3.2000, the respondent herein/accused borrowed a sum of Rs.2,50,000/- from the
         appellant/complainant for his urgent expenses and for the discharge of the said debt, the
         respondent/accused issued a cheque dated 20.4.2000 drawn on Canara Bank, Park Road, Erode for
         a sum of Rs.2,50,000/-. He also made a promise to pay interest @ 24% per annum. When the
         cheque was presented for collection on 22.4.2000, it was returned with the Banker’s note “funds
         insufficient”. Pursuant to the bouncing of the cheque, a lawyer’s notice was issued to the
         respondent/accused on 3.5.2000. But, the registered cover containing the said notice was returned
         as “not claimed” on 13.5.2000.
         As the respondent/accused evaded service of notice, failed to issue any reply and did not make any
         payment for the amount covered under the bounced cheque, the complaint was lodged under
         Section 200, Cr.P.C. against the respondent/accused for the above said      offence.”
       2. The complaint was taken on file as C.C. No. 177/2000 and process was issued. On receipt of
process, the respondent/accused entered appearance and pleaded not guilty. In order to prove the case, the
appellant/     complainant, besides examining himself as P.W.1, examined the Manager of the Bank as
P.W.2 and produced 7 documents as Exs-P1 to P7. After completion of evidence on the side of the
appellant/complainant, the respondent/accused was questioned by the Trial Court under Section 313(1)(b),
Cr.P.C. with regard to the incriminating materials found in the evidence adduced on the side of the
appellant/complainant. The respondent/accused denied them to be false. It was his further submission
during his examination under Section 313, Cr.P.C that he did not borrow any amount from the
appellant/complainant; that the signature found in the cheque produced on the side of the
appellant/complainant was not his and that the case had been foisted against him. No witness was
examined and no document was marked on the side of the respondent/accused.
        3. After hearing the arguments advanced on either side, the learned Judicial Magistrate No. III,
Erode came to the conclusion that the charge under Section 138 read with 142 of the Negotiable
Instruments Act was not proved beyond reasonable doubt. In the light of the admission made by P.W.2 that
the signature found in the specimen form available with the Bank and the one found in the cheque differ
from each other, the learned Trial Judge held that the appellant/complainant failed to prove that the cheque
was     issued by the respondent/accused. Based on the above said finding, the learned Judicial Magistrate
No. III, Erode, dismissed the complaint by his judgment dated 7.5.2001 and acquitted the accused. Hence,
the appellant/complainant has approached this Court by way of the present appeal.
        4. Mr. M.M. Sundresh, learned counsel advancing arguments on                behalf of the appellant,
contended that the appellant/complainant had proved all the ingredients necessary for proving the charge
under Section 138 read with 142 of the Negotiable Instruments Act and that the mere fact that an answer
favourable to the accused, to the effect that the signature of the respondent/accused found in the specimen
form available with the Bank          differed from the one found in the cheque, was elicited from Bank
Manager (P.W.2) was not enough to come to the conclusion that the commission of offence under Section
138 read with 142 of the Negotiable Instruments Act was proved beyond reasonable doubt. The learned
counsel also contended that the very fact that the respondent/accused failed to issue any reply should have
been taken as a circumstance giving rise to an adverse inference against the accused. According to the
learned counsel, viewed from any angle, the judgment of the Trial Court acquitting the respondent/accused
should be held infirm and the same must be undone by this Court in exercise of its appellate powers.
        5. This Court also heard the submissions made on behalf of the        respondent/accused and paid its
anxious consideration to the submissions made on either side. The materials available on record were also
perused.
        6. The present appeal has been presented against the judgment of acquittal pronounced by the
learned Judicial Magistrate No. III, Erode in C.C. No. 177/2000, which was taken on file based on a private
complaint filed by the appellant/complainant herein against the respondent for an offence punishable under
Section 138 read with 142 of the Negotiable Instruments Act. Of course, it is true that the appellant figured
as P.W.1 and deposed in line with the averments found in the complaint. He also examined the Bank
Manager as P.W.2 to show that the cheque allegedly issued by the respondent/accused was returned by the
Bank for the reason that there was           insufficiency of funds in the account on which the cheque was
drawn. The dishonoured cheque was produced and marked as Ex-P1. The memo of the bank returning the
cheque was marked as Ex-P2. The extract of the cheque return register certified by the Bank was produced
and marked as Ex-P5. The statement of accounts relating to the account on which the cheque was drawn
was produced and marked as Ex-P6. If these documents alone are taken into account, then there will be no
difficulty in accepting the contention of the learned counsel for the appellant. The further contention of the
learned counsel for the appellant/complainant that the fact that the respondent/accused did not issue any
reply to the statutory notice issued would also have substance in it provided such a notice was served upon
the respondent/accused. Unfortunately, in this case, the said notice was not actually served on the
respondent/accused. It is not the case of the appellant that the respondent/accused refused to receive the
notice when it was tendered by the postman. On the other hand, from Ex-P4, returned cover, it is
obvious that it was returned as “not claimed”, which leads to the inference that the postman would have
gone to the respondent/accused and passed on the information regarding the receipt of the registered cover
to anybody present there in the absence of the respondent/accused at the time of his visit. But, the same
will not be enough to hold that the notice was properly served on the respondent/accused or the information
regarding the receipt of such notice had actually reached him. The appellant/complainant has not chosen to
examine the postman to prove that a written intimation was given to the respondent/accused regarding the
receipt of the registered cover and to show how many visits were made by the postman to the place of
residence/business of the respondent/accused. Under such circumstances, the contention of the learned
counsel for the appellant/ complainant that adverse inference should be drawn against the respondent/
accused due to his failure to issue reply notice cannot be accepted and the same has got to be rejected as
untenable.
        7. The respondent/accused has denied the issuance of Ex-P1 cheque. He also denied the signature
found in the said cheque. A suggestion was put to the prosecution witnesses to the effect that the cheque
was not issued by the respondent/accused and that the signature found therein was not that of the
respondent/accused. Though the said suggestion was denied by the                  complainant when he was
examined as P.W.1, the Bank Manager, examined as P.W.2, has candidly admitted that the signature found
in Ex-P1- cheque and the one found in the specimen form differ from each other. When such an admission
has been made by a witness examined on the side of the appellant/complainant, it is the duty of the
complainant to see that the effect of such evidence is nullified by adducing further evidence and proving
that the signature found in Ex-P1 is that of the respondent/accused. But, the appellant/complainant has not
chosen to do so. The irony in this case is, had not the appellant/complainant chosen to examine the Bank
Officer on his side, the burden would have been cast upon the respondent/accused to prove that the
signature found in Ex-P1 was not that of his and that there was difference between the signature found in
the cheque and the specimen signature available with the Bank. By examining the Bank Manager, the
appellant/complainant has invited trouble whereby he had paved the way for eliciting an admission to the
effect that the signature found in the disputed cheque differs from the specimen signature available with
the Bank. Since such an admission was elicited from P.W.2, there was no necessity for the accused to
examine any further witness to show the difference in the signature and thereby prove that the signature
found in Ex-P1 was not that of his. Therefore, this Court is not in a position to find any defect or infirmity
in the conclusion arrived at by the learned Judicial Magistrate No. III, Erode to the effect that the signature
found in Ex-P1 was not that of the respondent/accused and that the charge made against the
respondent/accused was not proved beyond reasonable doubt.
        8. Yet another aspect, which was also dealt with by the learned          Judicial Magistrate, but not
elaborately, deserves to be mentioned here. It is the case of the appellant/complainant, as could be seen
from the           complaint, that a sum of Rs.2,50,000/- was lent on 20.3.2000 and a post- dated cheque
bearing the date 20.4.2000 for the said sum was issued by the respondent/accused. But, during cross-
examination, P.W.1 has stated that the respondent/accused asked him to lend a sum of Rs.2,00,000/- for
getting a job; that the said request was made by the respondent/accused in February and that in March, he
paid the said amount. The relevant portion of the evidence of P.W.1reads as follows:
        @vjphp ntiyapy; nrUtjw;F U:/2 yl;rk; nfl;lhh;/ mjdhy; bfhLj;njd;/ gpg;uthpapy; nfl;lhh;/
khh;r;rpy; gzk; bfhLj;njd;/@
        When the respondent/accused wanted only a sum of Rs.2,00,000/- as loan, how the
appellant/complainant happened to lend a sum of Rs.2,50,000/- has not been explained at all. This vital
aspect, in conjunction with the above said failure on the part of the appellant/complainant to prove the
signature found in Ex-P1 to be that of the respondent/accused, will clearly lead to the inevitable conclusion
that the appellant/complainant has utterly failed to prove his case and that the Trial Court has not
committed any error, either in law or on fact, in holding that the charge against the respondent/accused was
not proved beyond reasonable doubt and that the respondent/accused was entitled to be acquitted.
        9. For all the reasons stated above, this Court is of the opinion that there is no infirmity in the
judgment under challenge, that there is no merit in the appeal and that the same deserves to be dismissed.
Accordingly, this criminal appeal No.1396 of 2002 is dismissed.
                                                                                            Appeal dismissed.



                                       [2008 (1) T.N.L.R. 210 (Mad)]
                                          MADRAS HIGH COURT
BEFORE:
             M. JEYAPAUL, J.
                     MRS. S. CLARA                                                                ...Petitioner
                                                  Versus
                              THE STATE OF TAMIL NADU AND ANOTHER                             ...Respondents
               [Criminal Original Petition No. 29663 of 2006, decided on 7 th February, 2008]
       Criminal Procedure Code, 1973—Section 188—Trial of offence committed outside India—
Petitioner is mother of victim which was allegedly murdered in Kuwait—Further allegation that
accused       prevented petitioner from conducting post mortem examination to ascertain cause of
death and simply buried deceased victim—              Petitioner sought registration of case—Held,
complaint given by petitioner not registered—Police conducted only preliminary investigation and
recommended CBI investigation—Complaint reflects commission of heinous offence—Just because
occurrence took place 3 years ago decent burial of case of this magnitude can be given—Hence, CB-
CID directed to lodge complaint and investigate.
                                                                                                (Paras 9 and 10)
        Counsel.—Mr. R.S. Mohan, for the petitioner; Mr. A. Saravanan, Govt. Advocate (Cri Side), for the
respondent 1; Mr. N. Chandrasekaran, Special Public Prosecutor (for CBI cases), for the respondent 2.
                                                   JUDGMENT
        M. JEYAPAUL, J.—The petition is filed seeking a direction to the             second respondent-Central
Bureau of Investigation to register a case and investigate the matter. The petitioner is the mother of the
victim who was allegedly murdered in Kuwait. It has been alleged in the complaint that the victim
Hemalatha, daughter of the petitioner, was hale and healthy. She has virtually no health problem at the
time of her death. The husband of the said Hemalatha and one Thomas launched a murderous attack on her
on 11.5.2004 at 11.00 p.m., when she resisted the sexual assault perpetrated on her by the said Thomas.
The victim who could not brook the sexual assault was pushed down to the ground by those two persons
and as a result of which the victim sustained injury which resulted in her unconsciousness and thereafter
her death after 17 days. It is also alleged that the accused prevented the petitioner from conducting post-
mortem examination to ascertain the cause of death and they simply buried the deceased victim brought
from Kuwait to Palayamkottai, Tamil Nadu.
        2. The Court heard the submissions made on either side.
        3. The learned counsel appearing for the petitioner would vehemently submit that the petitioner
gave a complaint dated 7.6.2004 alleging commission of murder of her daughter by the accused at Kuwait
before the Palayamkottai police station. The said police station having enquired into the matter
recommended for C.B.I., investigation as a part of investigation will have to be done at Kuwait. It is his
further submission that the              recommendation of the said police station was processed by the
Government of Tamil Nadu and necessary G.O., also was passed entrusting the investigation to the C.B.I.
He would contend that when a citizen of India has committed an offence in foreign country, the offence
committed by him can be          investigated and tried by Indian Courts. Hence, the registration of the case
and the consequent investigation are warranted, he would submit.
        4. The learned Government Advocate (Criminal Side) would contend that the death had taken place
way back in the year 2004 not in India but in Kuwait. The Kuwait investigation team had not taken up the
complaint of the petitioner to its logical end. No useful purpose would be served if this case of murder is
registered after about three long years by the investigating agency located thousands of miles away from
the place of occurrence.
        5. Section 188 of the Code of Criminal Procedure would read that when an offence is committed
outside India by a citizen of India, he may be dealt with in respect of such an offence as if it had been
committed at a place within India at which he may be found.
        6. There is no dispute to the fact that the accused are citizens of India. It is also submitted that they
have permanent residence within the State of Tamil Nadu. In fact a petition to restrain the husband of the
victim was filed before this Court beforeever he took a flight to go over to Kuwait. But the said petition
was dismissed by this Court as infructuous on account of the fact that he had already gone to foreign
country before the said petition was taken for disposal. It is found that the husband of the victim had
loitered in the State of Tamil Nadu before he proceeded to foreign country after the alleged offence was
committed. Therefore, the police in the State of Tamil Nadu has every authority to register a crime which
was allegedly committed in a foreign soil.
        7. It is found that the complaint which was originally given by the petitioner was not registered by
the Palayamkottai police. The said police had conducted only a preliminary investigation and
recommended C.B.I., investigation based on the information it had collected.
        8. The petitioner is not in a position to furnish any copy of the G.O., alleged to have been issued by
the Government of Tamil Nadu entrusting the investigation in this matter to the C.B.I. No other concrete
material is also available on record to show that a G.O., was passed by the Government entrusting the
investigation to the C.B.I.
        9. The complaint as such reflects commission of heinous crime. Just because the occurrence had
taken about three years ago we cannot give a decent burial of a case of this magnitude without embarking
upon necessary investigation. If the Tamil Nadu police feels that the investigation will have to be
necessarily done by the C.B.I. on account of the commission of the offence in a foreign country, the Tamil
Nadu police can very well recommend to the Government which can take a decision in this matter as to
whether the matter can be entrusted to the C.B.I.
        10. In view of the above, the petitioner is directed to lodge a copy of the complaint already lodged
with the Palayamkottai Police Station with the Superintendent of Police, Crime Branch, C.I.D., Chennai
who shall call for the entire records of the said complaint with the Palayamkottai Police         Station and
register a case and investigate the matter forming an efficient team for the purpose of investigation of this
case. If the police team headed by the Superintendent of Police, Crime Branch, C.I.D., Chennai comes to
the conclusion that the investigation requires the expertise and experience of the Central Bureau of
Investigation, it can recommend to the Government of Tamil Nadu for the said purpose and thereupon the
Government of Tamil Nadu shall take appropriate action on such recommendation.
        11. The petition is ordered accordingly.
                                                                                       Ordered accordingly.




                                    [2008 (1) T.N.L.R. 213 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
               M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                                            K. MUNEESWARAN                                          ...Appellant
                                                    Versus
                                          THE STATE REP. BY INSPECTOR OF POLICE                  ...Respondent
                  [Criminal Appeal (MD) No. 387 of 2007, decided on 1 st February, 2008]
        Indian Penal Code, 1860—Section 302 or 304, Part II—Murder or culpable homicide not
amounting to murder—Appellant                      intimidated witnesses—Brother of witness questioned
intimiation—On which appellant took a pair of scissors and stabbed on left side of chest—Deceased
died on reaching hospital—Witness also sustained injuries—Other witness also saw occurrence—
Despite cross-examination testimony of witness remained unshaken—Since occurrence took place all
of sudden in which only one stab was given, hence appellant can be convicted only under Section 304,
Part II—        Conviction accordingly modified.                                    (Paras 7 to 10)
        Counsel.—Mr. A.P. Muthupandian, for the appellant; Mr. V. Kasinathan, Addl. Public Prosecutor,
for the respondent.
                                                 JUDGMENT
        M. CHOCKALINGAM, J.—Challenge is made to the judgment of the                 Principal Sessions Judge,
Madurai, dated 29.07.2004, made in S.C.No.85/2003, whereby the appellant/sole accused, who stood
charged and tried         under Sections 302 and 324, IPC, was found guilty under Section 302, IPC and
sentenced to undergo life imprisonment and also to pay a fine of Rs.1000/- in default to undergo one year
rigorous imprisonment. However, he was found not guilty under Section 324, IPC and acquitted of the said
charge.
        2.The short facts necessary for the disposal of this appeal can be stated thus.
           (a)     P.W.1 is the brother of the deceased Palanichami. There was previous enmity between
                   the accused and P.W.1's party. On the date of occurrence, that was on 16.07.2000, the
                   accused threatened P.W.1. P.W.1 in turn informed his brother, the deceased. The
                   deceased questioned the accused as to why he intimidated his brother. There was a wordy
                   altercation,    during which, the accused took a pair of scissors and stabbed on the left
                   chest of the deceased, who fell down. When P.W.1 went to the rescue of his brother,
                  accused also assaulted him on his right hand and he also sustained injuries. The deceased
                  was immediately taken to P.W.3’s Hospital, where he was pronounced dead.
           (b)    P.W.1 gave a complaint, which is marked as Ex.P-1, to Palamedu Police Station. P.W.9,
                  the Sub-Inspector of Police, who was present at that time, on the strength of Ex.P-1
                  registered a case in Crime No.118/2000 under Sections 302 and 324, IPC at about 5.30
                  p.m. and Ex.P-10 is the First Information Report. P.W.9 despatched Ex.P-1 and Ex.P-10
                  to the Court. Since P.W.1 was injured, P.W.9 sent him to hospital for treatment with
                  medical memo. P.W.12, the doctor attached to Government Rajajai Hospital, Madurai,
                  examined P.W.1 and gave him treatment. Ex.P-12 is the copy of the Accident Register
                  given to him.
           (c)    On the receipt of the copy of the First Information Report, P.W.13, the Inspector of
                  Police, took up the investigation, proceeded to the spot, made an observation and
                  prepared Ex.P-2, the observation mahazar, in the presence of two           witnesses and also
                  drew Ex.P-13, the rough sketch. He recovered M.O.2, the bloodstained earth and M.O.3,
                  the sample earth, under Ex.P-3, the mahazar, from the place of occurrence. P.W.13
                  conducted inquest on the body of the deceased in the presence of witnesses and
                  panchayatdars and prepared Ex.P-14, the inquest report and then the dead body was sent
                  for the purpose of postmortem through PW.11, the Head Constable.
           (d)    P.W.10, the doctor, conducted autopsy on the body of the deceased at 10.10 a.m. on
                  17.07.2000 and gave Ex.P-11, the postmortem certificate, opining that the deceased
                  would appear to have died of shock and haemorrhage as a result of external wounds with
                  corresponding internal injuries to the thoracic cage, heart and left lung sustained by him.
                  After postmortem, P.W.11, the Head Constable, recovered M.Os. 6 to 8, the personal
                  wearing apparels of the deceased and handed them over to the Inspector.
           (e)    Pending investigation, P.W.13, the Inspector of Police, arrested the accused on
                  17.07.2000 at 9.30 a.m. and recorded the voluntary confessional statement given by him,
                  admissible portion of it is marked as Ex.P-5, pursuant to which the accused produced
                  M.O.1, a pair of scissors, which was recovered under Ex.P-4, the mahazar, attested by
                  witnesses. P.W.13 also recovered M.Os.4 and 5, the bloodstained clothes of the accused,
                  under the same mahazar. Thereafter, P.W.13 sent the accused to judicial custody. He
                  also gave Ex.P-6, the requisition, to the Court for sending the material objects
                  recovered in the case for chemical analysis.
            (f)   P.W.7, the Magisterial Clerk, on receipt of Ex.P-6, the                 requisition, from the
                  Investigator, sent all the material     objects to Forensic Lab for chemical analysis under
                  Ex.P-7, the letter of the Court, which resulted in two reports, namely Ex.P-8, the
                  Chemical Examiner’s Report and Ex.P-9, the Serologist’s Report.
           (g)    P.W.14, the Inspector of Police, took up the further investigation in the case. He
                  examined some more witnesses and recorded their statements. On completion of the
                  investigation, P.W.14, the Investigator, filed the final report before the concerned Judicial
                  Magistrate’s Court on 25.03.2001 against the accused.
        3. The case was committed to the Court of Sessions by the Judicial Magistrate for trial. Necessary
charges were framed against the appellant/accused. To substantiate the charges levelled against the
appellant/ accused, the prosecution examined as many as 14 witnesses as P.W.1 to P.W.14,                 besides
marking Exs.P-1 to P-14 and M.Os.1 to 8. On completion of the evidence on the side of the prosecution,
the appellant/accused was             questioned procedurally under Section 313 of the Code of Criminal
Procedure about the incriminating materials found against him in the                  evidence of prosecution
witnesses. The accused denied all of them as false. On the side of the appellant/accused, no witness was
examined and no          document was marked. After hearing the arguments advanced by the                counsel
on either side and perusal of the material available, the trial Court found the appellant/accused guilty under
Section 302 and imposed the punishment of life imprisonment, but, however, found him not guilty under
Section 324, IPC and acquitted him of the said charge. Hence the present appeal at the instance of the
appellant.
        4. Mr.A.P.Muthupandian, learned counsel, while advancing arguments on behalf of the appellant,
would submit that the prosecution rested its case on direct evidence by bringing P.Ws.1 and 2 as eye-
witnesses; that P.W.1 is the brother of the deceased, who was the informant to the police and P.W.2
claimed to be an independent witness and if their evidence is scrutinized, the lower Court should have
rejected their evidence, since the evidence of these two witnesses is inconsistent with each other. Learned
counsel would add further that both the witnesses claim that the accused stabbed the deceased on the
chest with a pair of scissors, but the medical evidence does not corroborate this piece of evidence. He
further add that the alleged confession and the recovery of M.O.1 scissors was nothing but planted one to
suit the prosecution case and that there was no motive in the strict sense of the term to the accused for
doing such a crime and therefore the prosecution has not proved the case beyond reasonable doubt.
        Advancing further argument on behalf of the appellant, the learned counsel would submit that even
assuming that the prosecution has proved the fact that it was the accused who stabbed the deceased with a
pair of scissors and caused his death, the act of the accused would not warrant a conviction under Section
302, IPC for the simple reason that even as per the prosecution case, there was a quarrel between the
accused and deceased at the time of the occurrence and in that sudden quarrel the accused has stabbed the
deceased and hence the act of the accused was neither intentional nor pre-planned but only due to sudden
quarrel and hence it cannot be but only culpable homicide not amounting to murder and hence this aspect
has got to be considered by this Court.
        5. The Court heard the learned Additional Public Prosecutor for the State on the above contentions
and paid its anxious consideration and            attention over the same and made thorough scrutiny of the
materials.
        6. The fact that one Palanichami, brother of P.W.1, died out of         homicidal violence was not a
subject-matter of controversy. The dead body, following the inquest made by P.W.13, the Investigator, was
subjected to postmortem by P.W.10, the Doctor, and he has deposed before the Court and through him the
postmortem certificate was also marked by the prosecution as Ex.P-11. It is quite evident from that part
of the evidence that the deceased Palanichami died out of homicidal violence and this fact was never
questioned by the appellant/accused at any stage of the proceedings. Hence, without any impediment, it can
be safely recorded that Palanichami died out of homicidal violence.
        7. In order to substantiate the fact that it was the accused who stabbed the deceased with a pair of
scissors on the left chest and caused his death, the prosecution examined two witnesses as occurrence
witnesses, namely P.W.1 and P.W.2. P.W.1 is the own brother of the deceased and P.W.2 was an
independent witness. The contention put-forth by the appellant’s side that there is inconsistency in their
evidence cannot be accepted, since both the witnesses, who are occurrence witnesses, have clearly spoken
to the fact that the accused, in a quarrel between him and the deceased, took a pair of scissors and stabbed
once the left chest of the deceased. There is no further overt act or any inconsistency in the narration of the
incident. As per the prosecution case it was the accused who threatened P.W.1 and P.W.1               informed
the same to his brother, the deceased, who in turn questioned the accused which followed the incident. In
the instant case, the medical           evidence canvassed by the prosecution through P.W.10 is in total
corroboration to the ocular testimony.
        8. Yet another added circumstance was the recovery of M.O.1, the pair of scissors, consequent upon
the confession given by the accused and recorded by the Investigator in the presence of witnesses. The
contention put-forth by the learned counsel for the appellant that it was a cooked-up affair cannot be
accepted in the face of the witnesses examined for the              purpose. Despite cross-examination, their
evidence remained unshaken and thus the recovery of the weapon of crime on production of the same by
the accused pursuant to the confession would be pointing to the nexus of the appellant/accused with the
crime and thus the prosecution had overwhelming evidence in the instant case and therefore the contention
put-forth by the learned counsel in that regard cannot be countenanced.
        9. Coming to the second line of argument, the Court is able to see sufficient force in the contention
put-forth by the learned counsel for the appellant. P.W.2, who is one of the occurrence witnesses, has
categorically admitted that preceding to the occurrence there was a quarrel between the accused and the
deceased, during which the accused took a pair of scissors and stabbed the deceased only once on his left
chest. While evidence is       available to the effect that there was a quarrel between the accused and the
deceased and in that sudden quarrel the accused has stabbed the deceased, the Court is of the opinion that it
cannot be termed as a murder and it is an act which was done by the accused neither intentionally nor with
any       premeditation, but it is only culpable homicide not amounting to murder which would attract the
penal provision of Section 304(ii), IPC and awarding a punishment of five years rigorous imprisonment
would meet the ends of justice. Hence the judgment of trial Court finding the appellant/accused guilty
under Section 302, IPC and the punishment imposed thereunder requires modification.
        10. Accordingly, the judgment of the trial Court convicting the             appellant/accused under
Section 302, IPC is modified into one under Section 304(ii), IPC and the life imprisonment imposed under
Section 302, IPC is modified into one of five years rigorous imprisonment as punishment under Section
304(ii), IPC. The fine amount paid by the appellant shall be treated as the fine amount paid under Section
304(ii), IPC. The sentence already undergone by the appellant/accused shall be given set-off.
        11. With the above modification in the conviction and sentence, the appeal stands disposed of.
                                                                                        Appeal disposed of.



                                    [2008 (1) T.N.L.R. 217 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
             S. PALANIVELU, J.
                      M. PONNUSAMY                                                                 ...Petitioner
                                                        Versus
                        THE REVENUE DIVISIONAL OFFICER, MUSIRI AND OTHERS                         ...Respondents
 [Criminal Original Petition No. 1636 of 2004 and C.M.P. No. 138 of 2004, decided on 21 January, 2008]
                                                                                               st


         Criminal Procedure Code, 1973—Sections 145 and 482—Quashing of proceeding—Civil
litigation pending between parties—Even then notice under Section 145 issued and that too without
assigning any reason of satisfaction—Hence, proceeding under Section 145 cannot be sustained and
liable to be quashed—Petition allowed.
                                                                                              (Paras 10 and 11)
         Case law.—2002 (2) LW (Cri) 695; 2003 (4) CTC 232; 1990 MLJ (Cri) 149.
         Counsel.—Mr. K.K. Ramakrishnan, for the petitioner; Mr. Siva Ayyappan, Government Advocate
(Cri. Side) for respondent 1; No Appearance for other respondents.
                                                      JUDGMENT
         S. PALANIVELU, J.—The second respondent filed O.S.No.167 of 2003 on the file of the District
Munsif Court, Musiri and obtained interim injunction against the petitioner and other respondents
restraining them from           interfering his possession and enjoyment of the property by taking water from
‘A’ Schedule property to ‘B’ Schedule property through a cement pipe.
         2. The petitioner is the second defendant in the said suit and the learned counsel for the petitioner
would submit that the petitioner alone is the          contesting defendant and all other defendants are formal
parties. After getting interim injunction order, the second respondent herein preferred a complaint before
the first respondent stating that there is every possibility for breach of peace in the locality, since the
defendants in the original suit are attempting to damage the water pipes. On receipt of the above said
complaint, the first respondent on 27.08.2003 issued the impugned notice to the petitioner and other
respondents requiring them to appear before him on 08.09.2003 at 3.00 p.m. along with the records to
support their claim.
         3. Learned counsel for the petitioner would strenuously contend that the first respondent has not
complied with the requirements of Section 145 of the Code of Criminal Procedure, and in view of the
illegality crept into the above said notice, it is liable to be quashed.
         4. He further would submit that only after sustaining substantive             satisfaction of the issue
concerned, the first respondent should have come to a conclusion to initiate the proceedings in the matter
and it is his bounden duty to furnish the grounds for getting satisfaction, which is absent in the said notice.
While the notice dated 27.08.2003 is perused by this Court, it appears that he has not mentioned any reason
for getting satisfaction as regards the fact that there is every likelihood for breach of peace in the locality.
He has mentioned only about the complaint given by the complainant with regard to the damaging of the
water pipe in S.No.40/3 in Periyapallipalayam Village of Thottiyam Taluk.
        5. Heard the learned Government Advocate (Criminal Side) appearing for the first respondent.
There is no representation on behalf of the other respondents.
        6. Learned counsel for the petitioner would further contend that as per the consistent view taken by
this Court, the initiation of proceedings under Section 145 of the Code of Criminal Procedure by the first
respondent will not stand. In support of his contention, he would draw the attention of this Court to a
decision rendered by this Court in V. Jeyachandran v. The Sub Divisional Magistrate and Revenue
Divisional Officer, etc. and Others, 2002 (2) LW (Cri.) 695, which held as follows:
        When a civil litigation is pending for the property wherein the               question of possession is
involved and has been adjudicated, initiation of a parallel criminal proceeding under Section 145 of the
Code, would be           justified. The parallel proceedings should not be permitted to continue.
        When a civil case is pending before the competent Civil Court, the first respondent should have
taken into consideration the pendency of the matter and before issuing the notice impugned, he should have
furnished the reasons for initiation of the proceedings under the provision, even though civil suit is
pending. It is significantly absent in this case.
        7. The learned counsel for the petitioner would also rely on the        decision rendered by this Court
in Ponnammal and another v. State, rep. by Revenue Inspector, Kinathukadavu and others, 2003 (4) CTC
232, wherein it is observed that when the Magistrate has satisfied about the likelihood of breach of peace,
his failure in not mentioning the grounds of his satisfaction would lead to a conclusion that the preliminary
order suffers from illegality.
        8. In the present matter also the first respondent has miserably failed to furnish the grounds of his
satisfaction which vitiates the very initiation of the proceedings.
        9. In the above said decision, another decision of this Court has also been cited which was reported
in Karthikeyan v. State by Inspector of Police (L&O) and others, 1990 M.L.J. (Cri.) 149, wherein, a Single
Judge of this Court, has held that three fundamental requirements have to be fulfilled before the concerned
authority to initiate the proceedings under Section 145 of the Code of Criminal Procedure. The relevant
portion of the said        judgment is as follows:
          “In support of his plea, he relied upon a judgment of this Court        rendered by a learned Single
          Judge in Karthikeyan v. State by           Inspector of Police (L&O) and others, 1990 M.L.J. (Cri.)
          149. The learned Single Judge, in the above case, held that three fundamental requisites to
          maintain an order under Section 145, Criminal             Procedure Code are needed and they are, (1)
          there must be a report of a police officer or other information that a dispute was likely to cause
          breach of peace concerning the property mentioned in the section; (2) the Magistrate must be
          satisfied with such police report or other information that the dispute was likely to cause breach of
          peace; and (3) on the satisfaction of the Magistrate, he must take an order in writing stating the
          grounds for satisfaction in the order, he intends making under Section 145(1), Criminal Procedure
          Code.”
        10. Firstly, the pendency of civil litigation operate as a bar for the executive authority to proceed
with under Section 145 of the Code of            Criminal Procedure. Nextly, the notice dated 27.08.2003 does
not contain the reasons for the satisfaction sustained by the executive authority.         Further, Section 145
of the Code of Criminal Procedure provides that he shall make an order in writing stating the grounds for
satisfaction.
        11. Prima facie, the notice dated 27.08.2003 does not show the grounds on which the initiation of
proceedings was passed. For the foregoing             reasons, the proceedings under Section 145 of the Code of
Criminal         Procedure initiated by the first respondent cannot be sustained and is liable to be quashed.
        12. Accordingly, the criminal original petition is allowed. Consequently, connected M.P. is also
closed.
                                                                                                Petition allowed.



                                    [2008 (1) T.N.L.R. 220 (Mad) (MB)]
                                             MADRAS HIGH COURT
                                              (MADURAI BENCH)
BEFORE:
               M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                          VELU AND OTHERS                                                              ...Appellants
                                                      Versus
                                   THE STATE REP. BY INSPECTOR OF POLICE                             ...Respondent
                   [Criminal Appeal (MD) No. 102 of 2007, decided on 30 January, 2008]
                                                                               th


         Indian Penal Code, 1860—Section 302/34—Murder—Three                             persons charged—A-1
charged for attacking deceased on head with wooden log while second accused attacked deceased on
neck—        Prosecution case rests on direct evidence of P.W.1 and P.W.2 and circumstantial evidence
of two others who saw accused running away—A-2 and A-3 attacked is not acceptable as no
corresponding injuries found—Nothing on record which indicate that they had any common
intention—Hence, A-2 and A-3 are liable to be acquitted—So far as A-1 is concerned he attacked
only once that too with wooden log—Hence, provision of Section 304, Part I attracted—Thus,
conviction of A-1 modified—Appeal partly allowed.                            (Paras 8 to 10)
         Counsel.—Mr. V. Illanchezian, for the appellants; Mr. V. Kasinathan, Addl. Public Prosecutor, for
the respondent.
                                                    JUDGMENT
         M. CHOCKALINGAM, J.—Challenge is made to the Judgment of the                   Sessions Division, Karur
made in S.C.No.42 of 2006 whereby the appellants 3 in number stood charged, tried and found guilty as per
the charges, and awarded imprisonment for life and a fine of Rs.1,000/- with a default             sentence of one
year rigorous imprisonment under Section 302 r/w 34, IPC and one year rigorous imprisonment and a fine
of Rs.250/- along with default sentence of one month rigorous imprisonment under Section 323, IPC.
         2. The short facts that are necessary for the disposal of this case can be stated as follows:
       (i)     The first accused is the son of the accused No.2 and 3 and         accused No.3 is the wife of the
               second accused. PW.2 is the wife of the deceased. PW.1 is the elder brother of the deceased.
               The deceased purchased a piece of land from the 2nd accused. Even thereafter, possession
               was not handed over to the deceased. The 2nd accused went on cultivating the same. When
               PW.1 questioned about the conduct of the second accused, he beat him in the last occasion.
      (ii)     Originally, there was a complaint given to the respondent police on 30.8.2005. The deceased
               questioned the conduct of the second accused in continuing to retain possession of the land
               and further asked to divide the land and hand over that part which was sold to him.
     (iii)     On 1.9.2005 at about 9.30 p.m. hearing the noise from the house of the deceased, when PW.1
               whose house was nearby to that of the deceased, went to the house of the deceased, the 3rd
               accused was pushing down the neck of the deceased and as a result of which, the deceased fell
               down; the first accused attacked on his head with a wooden log while 2nd accused attacked
               the deceased on his neck. On seeing this, PW.1 raised alarm. At that time, PW.1 was also
               attacked by the accused and he had also sustained injuries in the incident.
     (iv)      The entire occurrence was witnessed by PW.1, PW.2 and others. P.W.5 and P.W.6 saw the
               accused running away from the place of the occurrence along with wooden logs. As a result
               of attack, the deceased died instantaneously.
     (v)       PW.1 proceeded to the respondent police station where PW.14 Inspector of Police was on
               duty on 2.9.2005. PW.1 gave Ex.P.1 report to PW.14 Inspector of Police and on the strength
               of which a case came to be registered in Crime No.205 of 2005 under Sections 302 and 323,
               IPC. F.I.R. Ex.P.11 was despatched to the Court and higher officials.
     (vi)      PW.14 took up investigation and proceeded to the place of                    occurrence, made an
               inspection and prepared an observation mahazer Ex.P.2 in the presence of PW.7 and also
               prepared a rough sketch Ex.P.12. He conducted an inquest over the dead body of the
               deceased and prepared an Inquest Report Ex.P.13. The dead body of the deceased was sent
               for post-mortem along with a requisition.
    (vii)      The dead body of the deceased was subjected to post-mortem by PW.10 doctor, attached to
               Kulithalai Government Hospital.           After conducting autopsy, he issued a post-mortem
               certificate Ex.P.8 wherein he opined that the deceased would appear to have died of shock and
               haemorrhage as a result of injury to vital organ of brain and skull about 18 to 19 hours prior to
               post-mortem.
   (viii)      PW.1 was examined in the same hospital by doctor PW.10, who found injuries as noted in the
               Accident Register Copy Ex.P.9, issued by him.
     (ix)      On 3.9.2005 both the accused A.2 and A.3 were arrested in the presence of PW.8 by the
               investigator. During the course of          investigation, A.2 voluntarily gave a confessional
               statement and the admissible portion of the confessional statement was marked as Ex.P.3 and
               pursuant to the confession, he produced MO.2, which was recovered under the cover of
               mahazer Ex.P.4. On coming to know that the first accused was surrendered before the Court,
               PW.14 Inspector of Police had taken out the first accused for police custody on 23.9.2005.
               During the course of         investigation in the presence of PW.9, A.1 voluntarily gave a
               confessional statement and the admissible part of that confessional statement was marked as
               Ex.P.5 and pursuant to the         confession, he produced a wooden log MO.1, which was
               recovered under the cover of mahazer Ex.P.6.
      (x)      On completion of the investigation, the investigator filed a final report against the accused for
               the offences punishable under Sections 302 r/w 34, IPC and 323, IPC.
         3. In order to substantiate the charges levelled against the accused, the prosecution examined 14
witnesses and relied on 13 Exhibits and 6 MOs. On completion of the evidence on the side of the
prosecution, the accused was questioned under Section 313, Cr.P.C. on the incriminating circumstances
found in the evidence of the prosecution witnesses, which were flatly denied on the part of the accused. No
defence witness was examined. The trial Court after hearing the arguments advanced by either side and on
considering the materials available on record, took the view that the prosecution has proved its case beyond
reasonable doubts and found the accused guilty of the offence and imposed punishment as referred to
above. Hence, the appeal arose at the instance of the accused/appellants.
         4. Advancing arguments on behalf of the accused/appellants, the learned counsel appearing for the
appellant, inter alia, would make the following submissions:—
       (i)     The prosecution rested its case on the direct evidence of PW.1 and PW.2 and also
               circumstantial evidence through PW.5 and PW.6. According to the prosecution, PW.1 and
               PW.2 have seen the occurrence and PW.5 and PW.6 have seen the accused               running away
               from the place of occurrence.
      (ii)     According to the prosecution witnesses, all the three have        attacked not only the deceased
               Annadurai but also PW.1. But, it is pertinent to point out that no corresponding injuries were
               found in the medical certificate insofar as the deceased is concerned. Hence, all these
               witnesses could not have seen the occurrence at all.
    (iii)      All these accused were accused of charges under Section 302 r/w 34, IPC as if they had got a
               common intention to share with the crime. But, there was no common intention at all from
               the     evidence of the prosecution witnesses. It is clear that on the previous day, not only a
               wordy altercation took place between the deceased and the accused parties but also scuffling
               and on the next day, the occurrence had taken place.
     (iv)      In the instant case, the evidence put-forth through the witnesses are inconsistent to each other
               and the recovery of material objects cannot be true but false.
      (v)      The medical evidence did not support the case of the prosecution. Thus, the prosecution had
               no evidence worth mentioning.
     (vi)      Insofar as the material objects recovered from A.2 and A.3, they were not lethal weapons but
               they were only wooden sticks and only one injury was caused on the head and it was not
               intentional. Had it been the real intention of the appellants, they would have stabbed with
               deadly weapons but they have attacked with sticks only. Thus, the act of the accused A.2 and
               A.3 would not attract the penal provision of murder and hence it has got to be considered by
               this Court.
         5. Heard learned Additional Public Prosecutor appearing for the State on the above contentions.
        6. The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire
materials available on record.
        7. It is not in controversy that the deceased one Annadurai, brother of PW.1 and the husband of
PW.2 following the incident that took place on the date of occurrence i.e., on 1.9.2005 at 9.30 p.m. had
died. Following the inquest made by the investigator PW.14, the dead body of the deceased was subjected
to post-mortem by the doctor PW.10 and he has clearly opined in his post-mortem certificate Ex.P.8 that
the deceased would appear to have died of shock and haemorrhage as a result of injury to vital organ of
brain and skull about 18 to 19 hours prior to post-mortem. The fact that the deceased Annadurai died out of
homicidal violence was never questioned by the accused/appellants and it has got to be recorded so.
        8. The prosecution, in order to substantiate the charges levelled against the accused, has examined 4
eye-witnesses and out of whom, PW.1 was an injured witness. It is true, it is a well settled position of law
that in a given case like this, when a witness happens to be the injured witness, his/her evidence should not
be discarded without sufficient reason or circumstance. In the instant case, PW.1 though has sustained 3
injuries at the hands of the accused, and Accident Register copy issued in respect of PW.1 was marked as
Ex.P.9, his evidence in respect of A.2 and A.3 that they attacked the deceased cannot be accepted for the
simple reason that no corresponding injuries were found. Further, there is nothing to indicate that they had
got any common intention to share with the crime. In the instant case, the Court is unable to notice any
case against A.2 and A.3 and they are entitled to be acquitted of the charges.
        9. Insofar as A.1, he has attacked with a wooden log on the head of the deceased and the deceased
sustained fracture on the head and the deceased died of shock and haemorrhage due to injury to vital organ
of brain and skull, according to medical opinion. This part is clearly spoken to by PW.1 and PW.2 that A.1
attacked him on the skull and apart from that PW.5 and PW.6 have also seen the accused running away
from the scene of occurrence along with a wooden log. The fatal injury caused by A.1 was supported by the
medical opinion. To that extent, the prosecution has proved its case. PW.1 sustained injuries and Ex.P.9
Accident Register copy was issued in that regard and he was given treatment. PW.1 was the proper and
competent witness to speak on the occurrence.
        10. Coming to the act of the accused A.1, as rightly contended by the learned counsel for the
appellants/accused, it would not attract the penal provision of murder for the simple reason that he had
attacked only once that too with a wooden log on the head. Taking into consideration all the circumstances,
the act of the accused would only attract the penal provision of culpable homicide not amounting to murder
and it will be appropriate to convict him under the provision of Section 304 (Part I), IPC and awarding 7
years rigorous imprisonment would meet the ends of justice.
        11. In the result, the conviction and sentence imposed on A.1 under Section 302 r/w 34, IPC is
modified and A.1 is convicted under Section 304 (Part I), IPC and awarded 7 years rigorous imprisonment.
Insofar as Section 323, IPC, both the conviction and sentence have got to be affirmed and         accordingly,
they are affirmed in respect of A.1 alone. The sentences are to run concurrently. The period of
imprisonment already undergone by the first appellant/A.1 shall be given set off. Insofar, the appellants 2
and 3 / A.2 and A.3, they are acquitted of the charges and the judgment of the trial Court against the
appellants 2 and 3 is set aside and fine amount, if any, was already paid by them, it shall be refunded to
them. Bail bonds executed by the appellants 2 and 3 stand cancelled. The criminal appeal is partly
allowed.
                                                                                        Appeal partly allowed.



                                   [2008 (1) T.N.L.R. 224 (Mad) (MB)]
                                         MADRAS HIGH COURT
                                           (MADURAI BENCH)
BEFORE:
             S. ASHOK KUMAR, J.
                             S.D. AMALRAJ                                                         ...Appellant
                                                     Versus
                         STATE THROUGH INSPECTOR OF POLICE                                      ...Respondent
                       [Criminal Appeal No. 490 of 2002, decided on 25 th January, 2008]
        Prevention of Corruption Act, 1988—Sections 7 and 13 (1)(d) read with Section 12 (2)—
Conviction—Allegation of taking bribe—From material it is clear that already an order to issue
licence was passed and file was sent to another clerk—Nothing remained to be done by accused
thereafter and no official favour persisted at all when already appellant ordered for issuance of
licence—Infirmities, inconsistencies, laxities and lacunae also found in prosecution case—Hence,
conviction cannot be sustained—Set aside—Appeal allowed.
                                                                                (Paras 10, 12, 17, 19 and 20)
        Case law.—2003 SCC (Cri) 1008; II (2002) CCR 169; 2000 Cri LJ 2377; 2007 (1) LW (Cri) 199;
2000 Cri LJ. 1401 (SC); AIR 1979 SC 148; 2005 SCC (Cri) 1424;—referred.
        Counsel.—Mr. G.R. Edmund, S.C., for Mr. K. Vinayagam, for                     the appellant; Mr. Siva
Ayyappan, Govt., Advocate (Cri. Side), for the       respondent.
                                                   JUDGMENT
        S. ASHOK KUMAR, J.—This Criminal Appeal has been filed by the                 accused as against the
judgment, dated 3.4.2002 passed in C.C. No. 17 of 1999 on the file of the learned Additional District
Judge cum Chief Judicial Magistrate, Sivagangai, and to set aside the conviction under Sections 7, and
13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentence imposed upon
him to undergo one year rigorous imprisonment for each of the offence and to pay a fine of Rs.2000/-, for
each of the offence and in default to undergo 2 months rigorous imprisonment.
        2. The brief facts of the case are as follows:—
        P.W.2 Gunalan who is the Correspondent of Amaravathy Primary School at Kallal had applied for
Licence for running the school for which he has given an application to the appellant/accused on
15.7.1998. The appellant asked P.W.2 to come after 10 days and two others occasions whereby he was
informed by the Deputy Tahsildar. It is further alleged that on 13.8.1998 at 11.00 a.m., P.W.2 met the
appellant and he replied that he could issue licence only after inspection of the building. On 17.8.1998 the
appellant inspected the building and asked P.W.2 to come to the office after one week. It is further alleged
that on 28.8.1998 at 11.00 a.m., P.W.2 went to the Taluk Office and met the appellant and that the
appellant told him that he has signed the licence and it will be given to him on payment of Rs.1000/-.
Again, on 6.10.1998 it is alleged that PW.2 went to the office of the appellant along with his friend P.W.3
Karvannan and met him at 5.00 p.m. Then also, the appellant demanded Rs.1,000/-, when agreed by P.W.2,
the appellant had told PW.2 to come to his house between 7.00 p.m., and 9.00 p.m.
        3. It is the further case of the prosecution that since P.W.2 was not willing to give bribe, he went
to the respondent’s office along with his friend P.W.3 and gave Ex.P.7 complaint which he signed in the
presence of Inspector of Police, Vigilance and Anti-Corruption, Sivagangai at about 2.30 pm., on
7.10.1998. The Inspector of Police asked P.W.2 to come at 4.00 p.m., and that P.W.2 went to the
respondent’s office at 4.00 p.m, where he was introduced to P.W.4, Chinnathambi and one Krishnaraj,
Official witnesses. The usual procedures were followed by the Inspector of Police and asked P.W.2
whether he has brought Rs.1000/- and P.W.2 gave the same to the Inspector. The Inspector asked
Krishnaraj to count the currency and he counted (Ten         hundred rupee notes) and placed it on the table.
The Inspector prepared Sodium Carbonate Solution and a demonstration of Phenolphthalein test was
conducted for which mahazars were prepared at 4.45 p.m., which is marked as Ex.P.9.
        4. The Inspector along with Police Party, P.W.2 and P.W.4 proceeded to Karaikudi. Thereafter the
Inspector and his men got down from the Jeep and waited at a short distance near to the house of the
appellant and he gave necessary instruction to P.W.2 and P.W.4 and asked them to go to the house of the
appellant and hand over the currency sprinkled with phenolphthalein powder to the appellant when he
demands. P.W.2 and P.W.4 went to the house of appellant at 8.40 p.m. The appellant asked P.W.2 whether
he brought the money and on that, P.W.2 gave the money to the appellant. P.W.2 and P.W.4 came to the
Verandha and P.W.2 gave the signals to the Inspector of Police as instructed by him and on that the
Investigating Officer and others went to the house of the appellant and the appellant on seeing the Inspector
coming to his home went out the house through the back door and came to the front side. The Inspector
asked the appellant whether he received the bribe and the appellant replied negative. The Inspector called
P.W.2 and asked him that whether the appellant received any money from him. For that, the appellant had
admitted having received the money from P.W.2. The Sodium Carbonate solution was prepared by the
Inspector and the appellant was asked to dip in his right hand finger and when the appellant did so, the
solution turned pink colour. The same procedure was followed on the left hand, but there was no change of
colour in the solution.
        5. When the Inspector enquired the appellant about the currency notes he received from P.W.2, the
appellant confessed that he has thrown all the notes on the thorny fence at the back side of his house and
the appellant took the Inspector to the backyard from where the appellant took 10         numbers of Rs.100/-
currency notes from the thorny fence and handed over the same to the Inspector. A mahazar was prepared
for seizure of the notes and also the solutions. The appellant was arrested and he was taken to the Taluk
Office. The A.4 Section Clerk Subramaniyan arrived at the Taluk Office at 11.00 p.m., and he has handed
over Ex.P.2 to Ex.P.6. On the next day the appellant was remanded to judicial custody. The Deputy
Superintendent of Police, V & AC, P.W.9 took up the investigation and after completion of investigation
filed the final report.
        6. Before the learned Chief Judicial Magistrate, Sivagangai, on behalf of the prosecution, 9
witnesses were examined and Exs.P.1 to P.25 were marked, besides M.Os.1 to 5. On behalf of the accused
D.Ws.1 to 3 were examined and Exs. D.1 and D.2 were marked. When the accused was                     examined
under Section 313, Cr.P.C., with regard to the incriminating      circumstances appearing against him in the
evidence of the prosecution witnesses, he denied the same.
        7. The learned Chief Judicial Magistrate, Sivagangai, on a consideration of the material evidence
available on record, came to the conclusion that charges under Sections 7, 13(1)(d) read with 13(2) of the
Prevention of Corruption Act were proved against the appellant/accused and convicted as such and
imposed sentence as stated supra. Challenging the said conviction and sentence, the present appeal is filed.
        8. Learned counsel appearing for the appellant/accused would                  contend that the alleged
demand on 28.8.1998 and 6.10.1998 by the appellant is false. Learned counsel would contend that on
15.7.1998 when the P.W.2 gave the application to get licence for running the school, the appellant did not
demand any money. On 13.8.1998 when P.W.2 met the appellant, he replied that he will issue licence only
after inspection of the building and at that time also he did not make any demand. On 17.8.1998, it is the
admitted case of the prosecution that the appellant inspected the building and at that time also the appellant
did not demand any money from P.W.2. According to the evidence of P.W.2, on 20.8.1998 at 11.00 a.m.,
when he met the appellant/accused at the Taluk Office, then the appellant told him that he has signed the
licence and will be given to him on payment of Rs.1,000/-. Again on 6.10.1998 when P.W.2 along with
P.W.3 went to the office of the appellant and met him by 5.00 p.m., the appellant demanded Rs.1,000/- and
told P.W.2 to come to his house between 7.00 and 9.00 p.m. Therefore, on the earlier three occasions on
15.7.1998, 13.8.1998 and 17.8.1998 the appellant/accused has not demanded any money from P.W.2. The
alleged demand is said to have been made on 28.8.1998 and 6.10.1998. According to the evidence of
P.W.2, he met the accused at 11.00 am., at his office on 28.8.1998. But the contention of the accused is that
on 28.8.1998 at 11.00 a.m., he was not present in the office. Ex.P.16 Diary maintained in the office of the
Thasildar would show that on 28.8.1998 the accused has attended at Surakudi Temple Kumbabishegam
and maintained law and order and returned to the Headquarters only in the afternoon. The contents of this
diary is supported by the evidence of P.W.5 and D.W.1. P.W.5 was the Deputy Thasildar-cum-Headclerk
during the relevant period at Karaikudi. In the said diary there is an entry that on 28.8.1998 after noon the
Thasildar after returning to the Headquarters maintained law and order with regard to a Pillaiyar temple
procession. P.W.5 would say that the accused did not come to office on 28.8.1998 because he was engaged
in the two duties mentioned in the diary and on 6.10.1998 it is stated that according to him as per the diary,
he has gone to Samathurvapuram for petition enquiry. D.W.1 has also deposed that he was the Ex
Panchayat President and Ambalakkarar of Surakudi Village and that on 28.8.1998 the accused came to his
village on 5.00 a.m., and was at the village till 2.00 p.m., and he had breakfast and lunch in his village
because there was dispute with regard to encroachment of the temple lands by certain persons and since the
Kumbabishegam of the two temples were held on that day. Exs.D.1 and D.2 are the Invitations for the said
temple Kumbabishegams. Therefore the admitted evidecne of P.W.5 and D.W.1 that the accused was
present at Surakudi village from morning 5.00 a.m. to 2.00 pm., would falsify the evidence of P.W.2 that
he met him at his office at 11.00 a.m. In this context it is useful to refer to the complaint Ex.P.7 given by
P.W.2 to the Inspector of Police, Vigilance and Anti-Corruption. In the complaint P.W.2 has not stated the
time when he met the accused at the office on 28.8.1998. But in the evidence he has stated that he met the
accused at his office at 11.00 a.m., on 28.8.1998. this averment that he met the accused on 28.8.1998 will
be patently false.
        9. The next date of demand is 6.10.1998, on which date when P.Ws.2 and 3 met the accused, he
again demanded Rs.1,000/-. According to P.W.2 and 3, they met the accused at 5.00 p.m., in his office.
P.W.5, Deputy Thasildar cum Head Clerk would say that on that date, the accused had gone to
Samathuvapuram in connection with an enquiry on a petition. It is the admitted case of the prosecution
that after inspection of the building for which P.W.2 sought licence, on 17.8.1998 on the very same date the
accused has made the report that the building was strong enough and licnece can be issued for three years
and in fact a licence was signed by him on 24.8.1998 and the file was sent to A.4 Section clerk after
24.8.1998. The allegation is that P.W.2 met the accused on 28.8.1998 which is patently false. Thereafter.,
P.W.2 has kept quiet till 6.10.1998, the previous date of trapping the accused. There is no explanation on
the part of P.W.2 as to why he was silent for nearly 38 days after 28.8.1998. Since the complaint was
lodged on 7.10.1998, it is probable that another demand on 6.10.1998 is introduced, so that there can be
cause of action to file a complaint against the accused.
        10. When the accused has already passed an order to issue licence and sent the file to A.4 Clerk
even on 24.8.1998, nothing remains to be done by the accused thereafter. It is the duty of A.4 Clerk to wait
for three days or one week whether the applicant (P.W.2) comes and get the licence or otherwise A.4 Clerk
should have sent the licence to the applicant by post. P.W.1 Collector himelf has admitted as follows:-
       @nkw;go iybrd;;!; bgWtJ bjhlh;ghd ghh;k; gotk; gp/,y; kw;Wk; gjpntl;oy; M$h; vjphp
21/8/1998 kw;Wk; 24/8/1998 ,y; ifbahg;gk; bra;Js;shh;/ mij jhrpy;jhh; mYtyf V/4 brf;rDf;F
mDg;gpdhh; vd;why; rhpjhd;/ nkw;go gjpntl;il V/4 brf;rd; vGj;jh; xU thuj;jpw;Fs; (g[fhh;jhuh;-
tpz;zg;gjhuh;) ghh;itf;F mDg;g ntz;Lk; vd;whh; rhpjhd;/ mJtpguk; o!;hpf;l; MgP!; khDtypy;
tHpfhl;Lbewpfspy; fz;Ls;sd vd;why; ,Uf;fyhk;/ V/4 vGj;jUk; jghy;; bl!;ghl;r; fpshh;f;Fk;
tpz;zg;gjhuUf;F mJ bjhlh;ghf jfty; mDg;ghky; ,Ue;jpUe;jhy; nkw;go braYf;F mth;jhd; bghWg;g[
vd;why; ,Uf;fyhk;/@
       11. P.W.5, Head Clerk cum Deputy Thasildar has also admitted as follows:-
       17/8/1998 md;nw !;jyk; ghh;it bra;j md;nw nehl;oy; chpkk; tH’;fyhk; vd;W nehl; Mh;lh;
vGjptpl;lhh;/ me;j nehl;Mh;lhpd; mog;gilapy; mry; rhd;wpjH; efYk; jahhpf;fg;gl;L me;j rhd;wpjHfis
21/8/19998 md;nw vjphp ifbahg;gk; bra;Jtpl;lhh;/ mjw;f;Fg;gpwF me;j nfhg;g[ rk;ge;jkhf me;j
nrd;wpjH; tH’;FtJ rk;ge;jkhf vjphp bra;a ntz;oa gzp vJt[k; ghf;fp ,y;iy/ 21/8/1998 ,y; rh/M/19 kw;Wk;
20 y; ifbaGj;jpl;L vjphp me;j nfhg;ig vd;dplk;jhd; nehpilahf mDg;gpdhh;/ me;j nfhg;ig vjphp V/4
fpshh;f;fplk; nehpilahf mDg;gtpy;iy/ vd;dplk; nfhg;g[ mDg;g[k;nghJ vjphp bfhLf;ffntz;lhk; vd;W vjphp
vd;dplk; brhy;ytpy;iy/ 3 ehl;fSf;Fs; me;j rhd;wpjiH th’;f chpikahsh; tutpy;iy/ 3 ehl;fSf;Fs; me;j egh;
te;J me;j rhd;wpjH;fis bgw;Wr; bry;ytpy;iy vd;why; rk;ge;;jg;gl;l fpshh;f; mij jghy; fpshh;Ff;F
mDg;gntz;Lk;/ mjpy; vg;ggo bl!;ghl;Rf;F mDg;g[tjw;F V/4 fpshh;f; vd;idnah vjphpianah nfl;fntz;oa
mtrpak; ,y;iy/ oghh;l;bkd;ly; MgP!;nkDty; vd;W xd;W cs;sJ/ mjd;go 3 ehisf;Fs; bl!;ghl;rpy; mDg;g
ntz;Lk;/ mg;go bl!;ghl;r; mDg;gntz;oa bghWg;g[ V/4 f;F cz;L/ vjphp mDg;g ntz;lhk; vd;W jd;dplk;
brhd;djhf V/4 fpshh;f; vd;dplk; bjhptpf;ftpy;iy/ mg;nghJ bry;yKj;J vd;gth; ,Ue;jhh;/ bry;yKj;Jtpw;f;F
V/4 fpshh;f; mDg;gp itf;ftpy;iy/ bl!;ghl;r; gd;zpzjhft[k; hpf;fhh;l; ,y;iy/ V/4 fpshh;f;; vjphp te;jgpwF
vjphp V/4f;F xJf;fpa ntiyfis Ml;nrgpj;J vd;dplk; g[fhh; bra;jhh;/ V/4 fpshh;f;fpd; rnfhjuh; fhiuf;Foapy;
ouhgpf; rg; ,d;!;bgf;luhf ,Uf;fpwhh;/ jdJ rnfhjuh; ouhgpf; rg; ,d;!;bgf;luhf ,Ug;gjhy; mtUf;F
bfhLf;fntz;oa gzpia chpa neuj;jpy; bra;tJ ,y;iy/ fhyk;jhH;j;jp bra;J te;jhh;/@
       12. Therefore, the payment of bribe after completion of the official favour is a serious lacuna in the
prosecution case as held by the Hon’ble Supreme Court in State of U.P. v. Jagdish Singh Malhotra,
reported in 2003 SCC (Cri) 1008. In the present case, on facts there is no official favour persisted at all
when already the appellant has ordered for issue of licence.
       13. In Ram Smugh Mourya v. State of Madhya Pradesh, reported in Vol.II (2002) CCR, 169, the
Madhya Pradesh High Court has held as          follows:—
          “17.   In the present case, the purpose for which the money was demanded as illegal
                 gratification by the appellant, was       already served much prior to the alleged demand
                 of Rs.100/- to the appellant for releasing the complainant and his son Mohan.
                    Complainant Rajaram was also given notice for         appearance before the Court for filing
                    the charge sheet, in the circumstances, it would be difficult to believe that the appellant
                    was demanding money for the work which had             already been done. If the money was
                    not paid by the            complainant, after his release on surety, Deokaran (P.W.5) was
                    never called and asked for the payment of money              because as per the prosecution
                    case, on his assurance,        complainant Rajaram and his son were released on bail. This
                    fact is also tilting balance of innocence in favour of the    appellant.”
         14. In S. Suryanarayana Rao v. State of Karnataka, reported in 2000 Cri.L.J. 2377, the Karnataka
High Court has held as follows:—
             “6.    ...Unless there is corroboration by other materials, it is         difficult to hold that the
                    prosecution has established beyond reasonable doubt that there was demand and
                    acceptance. Moreover, the another hole in the jacket of the prosecution is that the file had
                    left on 22.7.1986 itself to P.W.2 to conduct the survey. In view of these facts and
                    circumstances of the case, naturally the doubt arises as to the genuineness of the
                    prosecution story. Hence benefit of doubt is extended to the appellant.”
         15. In M.K. Shanmugasundaram v. The Inspector of Police, V & AC, Salem, reported in 2007 (1)
LW (Cri) 199, this Court held that “like every other criminal case, a case of bribery is subject to the rule
that the accused is presumed innocent and that the burden to discharge the said innocent is paramountly on
the prosecution. However strong the suspicion against the accused if every reasonable possibility of
innocence has not been excluded, he is entitled to acquittal. If therefore the evidence regarding the demand
and acceptance of bribe leaves room for doubt and does not displace the presence of innocence wholly, the
charge cannot be said to have been            established”.
         16. The money M.O.3 series have been recovered from the thorny bush behind the house of the
accused. The prosecution case is that on seeing the police party, the accused went behind his house and
threw the money in the thorny bush from where it was recovered. At the time of trap when the right hand of
the accused was dipped in the Sodium Carbonate solution, it turned pink colour and the bottle was sealed as
M.O.No.3. When his left hand fingers were dipped in such solution, there was no change of colour of
M.O.4. But, on the other hand, the evidence of the forensic scientist, P.W.8, is totally different. The sample
in Ex.M.O.3 it is true the solution was pink in colour. But the sample in Ex.MO.4 also the solution was
pink in colour and when analysed chemically the samples 3 and 4 both right and left hands proved to
contain phenolphthalein. If that is so, there is no explanation as to how sample No.4 which was colourless
at the time of drawing the trap mahazar was pink in colour when it was received in the Forensic Sciences
Laboratory at Madras and how Phenolphthalein was tested positive in Sample No.4 namely solution dipped
by left hand of the accused also. Therefore, the contention of the accused that these solutions were
prepared later by the police to implicate him cannot be simply brushed aside as one without force. In AIR
1979 SC 148, the Hon’ble Supreme Court has held that in a case of bribery where recovery of money
divorced from the circumstances under which it is paid is not sufficient to convict the accused when the
substantive evidence in the case is not reliable”.
         17. Apart from that, there is motive alleged between P.W.2 and the accused. P.W.5 has stated that
P.W.2 and P.W.3 who belong to Communist Party often used to come to the office and take bulk
applications for getting community certificates for others for which the accused objected and warned them
and told that the applicants themselves must come and apply and one cannot apply for several persons for
getting community certificates. P.W.3, Joint Secretary of the SC and ST Association also deposed about
the       occurrence earlier to the trap in which P.Ws. 2 and 3 quarrelled with the accused and threatened
him. Under such circumstances, it is hard to believe that the accused would dare to demand any money
from P.W.2 that too when already order has been passed even before the alleged date of             demand.
         18. The Prevention of Corruption Act was intended to make effective provision for prevention of
bribe and corruption rampant amongst the public servants. It is a social legislation to curb illegal activities
of the public      servants and it is designed to be liberally construed so as to advance its object as held in
State of Madhya Pradesh v. Shri Ram Singh reported in 2000 Cri.LJ 1401 (SC). At the same time, we must
bear in mind that conviction of the public servants on flimsy grounds leads to an economical death of the
concerned person and convicted person will also lose his social status and will be put to shame in the public
not only the public servant, his entire family will have such sufferings. Probably, that may be the reason
why in 2005 SCC (Cri) 1424 (Ganga Kumar Srivastava v. State of Bihar) the Hon’ble Supreme Court has
observed as follows:—
          “20.     We must not forget that in a trap case the duty of the officer to prove the allegations
                   made against a Government Officer for taking bribe is serious, and therefore, the officers
                   functioning in the Vigilance Department must seriously           endeavour to secure really
                   independent and respectable       witnesses so that the evidence in regard to raid inspires
                   confidence in the mind of the Court and the Court is not left in any doubt whether or not
                   any money was paid to the public servant by way of bribe. It is also the duty of the
                   officers in the Vigilance Department to safeguard for the protection of public servants
                   against whom a trap case may have been laid.”
       19. Neither the prosecution has put up a strong case in proper        manner as warranted by law, nor
the same had been properly investigated into, nor proved, much less beyond reasonable doubts. The case
of the       prosecution suffers from infirmities, inconsistencies, laxities and lacunae so as to become
unreliable for a conviction to sustain. In view of the infirmities and lacunae in the prosecution case, and the
appellants having established in defence the probabilities of his contention that no demand was made by
him and by a conspiracy hatched by P.Ws. 2 and 3 the false case has been foisted against them, the defence
version is more probable to accept than the      version of the prosecution.
       20. In the result, the criminal appeal shall stand allowed. The conviction and sentence passed by the
Court of Additional District Judge-cum-Chief Judicial Magistrae, Sivaganga in C.C.No.17 of 1999, dated
3.4.2002 are hereby set aside. The fine amount paid by the appellant shall be refunded to him. The bail
bond executed by him shall also stand cancelled.
                                                                                               Appeal allowed.

                                    [2008 (1) T.N.L.R. 232 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
             S. ASHOK KUMAR, J.
                        VADIVEL AND OTHERS AND CHINNA KARUPPAN                                   ...Appellants
                                                  Versus
                       STATE REP. BY INSPECTOR OF POLICE                                       ...Respondent
   [Criminal Appeal No. 31 of 2001 and Criminal Appeal No. 60 of 2001, decided on 25 th January, 2008]
       Indian Penal Code, 1860—Sections 304, Part II and 324—                Evidence Act, 1872—Section
3—Culpable homicide not amounting to murder—Parties related to each other—Prior enmity
between      parties—In occurrence death of one person on each side—Injuries also of defence side—
No explanation as to how some of accused in both cases sustained injuries—Failure to explain
injuries on accused would show that version given by prosecution witnesses is not                 completely
true—Hence, unsafe to convict—Thus, conviction set aside—Appeal allowed.
           (Paras 9, 14 and 15)
       Case law.—1990 LW (Cri) 151; 1988 LW (Cri) 467; 1989 LW (Cri) 445—referred.
       Counsel.—Mr. A. Padmanabhan in Cri. A.31/2001, Mr. N. Mohideen Basha in Cri.A.60/2001, for
the appellants; Mr. Siva Ayyappan, Govt., Advocate (Cri Side), for the respondent.
                                                JUDGMENT
       S. ASHOK KUMAR, J.—Criminal Appeal No. 31 of 2001 has been filed by the accused 1,2 and 4 as
against the judgment, dated 19.12.2000 passed in S.C.Nos. 162 of 2000, by the learned I-Additional
Sessions Judge-cum-Chief Judicial Magistrate, Trichirappalli, and to set aside the conviction of A.1 under
Section 304 (ii), IPC and sentence imposed upon him to undergo RI for 6 years and to pay a fine of
Rs.1000/- in default to undergo RI for 6 months; to set aside the conviction under Section 324, IPC and
sentence imposed on him to undergo RI for 2 years and to pay a fine of Rs.500/- in default to undergo RI
for 3 months; to set aside the conviction of A.2 and A.4 under Section 324, IPC and sentence imposed on
each of them to undergo RI for 2 years and to pay a fine of Rs.500/- in default to undergo RI for 3 months.
         2. Criminal Appeal No. 60 of 2001 has been filed by the accused 1,2 and 9 as against the judgment,
dated 19.12.2000 passed in S.C.Nos. 129 of 2000, by the learned I-Additional Sessions Judge-cum-Chief
Judicial Magistrate, Trichirappalli, and to set aside the conviction of A.1 under Section 304 (ii), IPC and
sentence imposed upon him to undergo RI for 6 years and to pay a fine of Rs.1000/- in default to undergo
RI for 6 months; and to set aside the conviction of A.2 and A.9 under Section 324, IPC and sentence
imposed on each of them to undergo RI for 2 years and to pay a fine of Rs.500/- in default to undergo RI
for 3 months.
         3. The brief facts of the case leading to the filing of Cri.A.No:31/01 are as follows:—
         P.W.1 is the brother of the deceased Pichai. P.W.2 is father of P.W.1. P.W.3 is his younger brother.
A.1 is younger paternal uncle of P.W.1. A.2 and A.3 are is sons. A.4 is his distant brother. A.5 is son of
P.W.1’s elder paternal uncle. A.7 is a relative of P.W.1. A.8 is elder paternal uncle of P.W.1. Thus both the
parties are related to each other. There was a prior enmity between the prosecution witnesses and the
accused with regard to allotment of ancestral land. On 19.5.1999 at about 9.00 a.m., near Mangani
Mariamman Kovil at Kazhanivasalpatti, all the accused armed with Aruval, Knife, and Cycle Chain
assembled unlawfully and the first accused stabbed one Pichai on his left side of his ear portion thereby
cutting the vain and nerves, the 8th accused attacked P.W.2 with Aruval on his hands, the 6th and 7th
accused and one Thangavel beat Pichai with their hands, 5th accused and one Alazhagar attacked P.W.3
with the back of the Aruval all over his body, the 4th accused caused injury on P.W.1’s left upper portion
of eyebrow with the back of the Aruval, the first accused stabbed him on his right hand finger portion, the
third accused beat him with cycle chain on his back and thus all the accused abetted A.1 to commit the
murder of Pichai. Therefore, the respondent after investigation filed final report against the accused under
Sections 147, 148, 341, 323, 324, 302 and 149 r/w 302, IPC.
         4. Before the Sessions Court, on behalf of the prosecution, 22           witnesses were examined and
Exs.P.1 to P.38 were marked, besides M.Os.1 to 12. On behalf of the accused no one was examined and no
document was marked. When the accused were examined under Section 313, Cr.P.C., with regard to the
circumstances appearing against them in the evidence of the prosecution witnesses, they denied the same.
The learned I-Additional          Sessions Judge, Trichirappalli, on a consideration of the material evidence
available on record, both oral and documentary, found guilty of the offences only as against the accused 1,2
and 4 and sentenced the first accused to undergo 6 years RI, and to pay a fine of Rs.1000/- in default to
undergo RI for 6 months under Section 304(ii), IPC, and to undergo 2 years RI each and to pay a fine of
Rs.500/- each, in default to undergo RI for 6 months under Section 324, IPC and sentenced accused 2 and 4
to undergo 2 years RI and to pay a fine of Rs.500/- in default to undergo 3 months RI under Section 324,
IPC. Challenging the said conviction and sentence, this Cri.Appeal is         preferred.
         5. The brief facts of the case leading to the filing of Cri.A.No.60/01 are as follows:—
         As already stated earlier, the deceased Azhagar and P.W.3 Raman were close relatives. The accused
are also related to them. There was a prior enmity between the prosecution witnesses and the accused with
regard to a land dispute. In the same occurrence, on 19.5.1999 at about 9.00 a.m., near Mangani
Mariamman Kovil at Kazhanivasalpatti, with a common intention to kill Alzhagar and to cause injuries on
P.Ws 1 to 3 due to prior enmity, the accused 1,2,6 and 9 armed with aruval and knife; the accused 3 and
four had stones in their hands; along with the accused 5, 7 and 8 assembled there unlawfully and thereby
the first accused stabbed Alzhagar on his left chest with the knife, the third accused beat Alzhagar on his
head with the stone, the second accused attacked P.W.1 on the left ribs side, the 6th accused inflicted a
blow with the aruval on P.W.3, the 9th accused stabbed with the knife on the back of P.W.2, the 4th
accused also attacked P.W.3 with stone and the accused 5,7 and 8 beat P.W.2 with their hands on several
places. In the same altercation P.Ws.1 and 2 also caused simple injuries on accused 1, 2 and 6.
Therefore, final report had been filed against the accused under Sections 147, 148, 302, 302 r/w 149, 324,
and 323, IPC.
         6. Before the Sessions Court, on behalf of the prosecution, 20           witnesses were examined and
Exs.P.1 to P.33 were marked, besides M.Os.1 to 7. On behalf of the accused no one was examined and no
document was marked. When the accused were examined under Section 313, Cr.P.C., with regard to the
circumstances appearing against them in the evidence of the prosecution witnesses, they denied the same.
The learned I-Additional          Sessions Judge, Trichirappalli, on a consideration of the material evidence
available on record, both oral and documentary, found guilty of the offences only as against the accused 1,2
and 9 and sentenced the first accused to undergo 6 years RI, and to pay a fine of Rs.1000/- in default to
undergo RI for 6 months under Section 304(ii), IPC, and sentenced accused 2 and 9 to undergo 2 years RI
and to pay a fine of Rs.500/- in default to undergo 3 months RI under Section 324, IPC. Challenging the
said conviction and sentence, this Criminal Appeal is preferred.
         7. Learned counsel appearing for the appellant in Cri.A.No.31 of 2001 contended that the
prosecution has not come out with the truth and therefore liable to be thrown out. It is further contended
that the injuries found on the accused/appellants were not explained by the prosecution. It is also
contended that in the counter case filed by the accused/appellants, the               evidence is so conflicting.
Further, the trial Court has failed to appreciate the fact that the counter complaint filed by A.1 in this
appeal was not exhibited and the postmortem certificate for the deceased Alzhagar and wound certificates
for A.1, A.3 and A.8 of this appeal were not exhibited as           documents by the prosecution.
         8. Learned counsel appearing for the appellants in Cri.Appeal No.60 of 2001 contended that at the
earliest point of time P.Ws.1 and 3 have stated before the Doctor that they have been attacked by 3 to 6
unknown persons, but those persons were not brought on record and hence the appellants involvement is
highly doubtful. The learned counsel also contended that the appellants/accused were also injured and
such injuries are not properly explained by the prosecution and therefore, the prosecution ought to have
totally rejected and the accused ought to have been acquitted.
         9. It is a case and counter case. It is not in dispute that both the case arise out of one and the same
occurrence at 9.00 pm., in the same place. It is also not in dispute that the accused in both the cases have
sustained injuries and one person died on each side. As rightly contended by the learned counsel in
Cri.A.No.31/01, the prosecution has failed to mark the postmortem certificate and wound certificates of the
appellants filed in the counter case and also did not explain the injuries sustained by the appellants in the
respective counter case. Further, even in the FIR in Cr.No.71/99, it was mentioned that 10 unknown
persons also involved in the occurrence. P.Ws. 1 and 3 in S.C.No. 129 of 2001 have stated before the
doctor that they were attacked by 3 to 6 unknown persons. When it is not in dispute that injured persons as
well as the accused in both the cases are related to each other, and when it is alleged that they were attacked
by unknown persons, the prosecution has failed to investigate the case in a proper manner. Apart from that
there are contradictions in the evidence of prosecution witnesses as to the overt-acts of each of the accused
in the respective Sessions Case. That is why, the learned Sessions Judge in both the Sessions Cases has
acquitted some of the accused from certain charges as not proved.
         10. It is contended by both the learned counsel that in a situation where there is a case and counter
case are registered, the Police are bound to investigate both and find out who is the aggressor and file
charge-sheet against the aggressor by following the procedures laid down in S.O.588-A of the Police
Standing Order.
         11. In 1990 L.W.(Cri) page 151 (Sakkarai Ramaswamy v. Alangara Muni and Murugan), a
Division Bench of this Court has held as follows:—
             “7.     Thus, the two versions projected, each widely differing from the other, cannot at all be
                     said to reflect the reality of the situation. It is perhaps possible that one of the two
                     versions can be true or both the versions can be false, as being          distorted versions.
                     The Police under the extraordinary        powers of investigation can do well to collect all
                     materials, ascertain the truth and project the real version before Court in the form of a
                     positive report under Section 173, Cr.P.C., besides filing a negative report as regards the
                     other version appearing to be ex facie false. If the Police are unable to come to any
                     definite conclusion and feel that both the versions are false, as being distorted versions of
                     the occurrence it is perfectly open to them to file a negative report under Section 173,
                     Cr.P.C.,
                     xx                 xx                 xx                 xx
             19.     The pit-falls of the investigation being perfunctory, slip-shod and lop-sided could have
                     been avoided by the investigating machinery if they had the mind to scrupulously follow
                     the instructions contained in Clause 588-A of the Madras Police Standing Orders and
                     therefore it appears to us necessary to have a close look at the aforesaid salient
                     provisions. For                better appreciation and understanding, it is necessary to
                     reproduce Clause 588-A which runs as follows:—
     “588-A. Charge Sheets in cases and counter cases:—In a complaint and counter complaint
               obviously arising out of the same transaction the investigating officer should enquire into
               both of them and adopt one or the other of the two courses viz., (1) to charge the case
               where the accused were the aggressors; or (2) to refer both the cases if he should find
               them untrue. When the investigating officer proceeds on the basis of the complaint it is
               his duty to exhibit the counter complaint in the Court and also to prove medical
               certificate of persons wounded on the opposite side. He should place before the Court a
               definite case which he asks it to accept. The investigating officer in such cases should not
               accept in toto one       complaint and examine only witnesses who support it and give no
               explanation at all for the injuries caused to the other side. The truth in these cases is
               invariably not in strict     conformity with either complaint and it is quite necessary that
               all the facts are placed before the Court to enable it to arrive at the truth and a just
               decision. If the Investigating Officer finds that the choice of either course is difficult, viz.,
               to charge one of the two cases or to throw out both, he should seek the opinion of the
               public prosecutor of the district and act accordingly. A final report should be sent in
               respect of the case referred as mistake of law and the complainant or the counter
               complainant as the case may be, should be advised about the disposal by a notice in F.96
               and to seek remedy before the specified Magistrate, if he is aggrieved by the          disposal
               of the case by the Police.”
       20.     Pertinent it is to restate the suggestions made by one of us (David Annoussamy, J.)
               regarding the interpretation and importance of the salient provisions adumbrated in the
               aforesaid standing orders getting reflected by way of certain           observations made in
               Criminal Revision Case No.735 of 1985 (Somu and Five others v. State) dated 21.4.1989,
               which are as follows:—
     “This order contains very salutary provision, but there are two points which in my considered
     opinion require reconsideration. In the first place, it allows to the investigating officer the choice
     only between two courses. There may be cases in which both the parties should be brought before
     the Court for the offences committed by them. The Police has felt the lacuna and now they are
     bringing some times both parties before the Court for the offence affray. But that may not be fully
     suitable because affray is a very minor offence and when serious injuries have been inflicted and
     even death occurred as in the present case, it will not be sufficient to indict the culprits from both
     sides only for an offence of affray. The second point which needs reconsideration is that the Order
     enjoins the investigating officer to charge the case, where the accused were the aggressors. Here
     also, the aggression may be of various kinds. The transaction may start by wordy quarrel, then
     come some minor acts of violence, then stronger acts of violence without any weapon, then
     weapons of more or less dangerous nature come into play. All occurrences are not of the same
     type and the sequence of events varies considerably. So at what stage the real aggression started is
     some times difficult to determine. Therefore, it should be open to the investigating officer to adopt
     a third course also, viz. charging both parties arraying them as `A’ party and `B’ party each for the
     offences committed by them and unfolding before the Court the whole sequence of events and
     how they          happened. Then it will be easy for the Court to fix the exact responsibility of each
     one of them for his acts. No doubt in such a case, it would be open to the parties to resort to
     compounding when it is permissible or to plead self defence whenever it is justified. If impartial
     investigation has been made and if the investigating officer has come to truth and indicted each
     party according to his overtacts, there may not be great difficulty for having the truth unfolded
     before the Court, because the accused in one case will be the prosecution witness in the other one
     and, therefore, subjected to cross-examination. So three courses should be open to the
     investigating officer.
 (i)      If there is clear aggression by one party, positive report under Section 173 can be filed,
          against that party and negative report may be filed against the other.
(ii)      If both parties have been in aggressive mood, without possibility to determine the aggressor,
          and if the sequence of events is clear and offences have been committed by each of the party
          without any justification, to file positive reports under Section 173 against both the parties.
    (iii)      If none of the above two courses is possible, to file negative      reports in respect of both the
               cases. This is a matter to be considered in depth. At any rate, the present provisions of Section
               588-A are deficient to some extent and proper solution has to be arrived at so that each one is
               indicted and punished for the act he has committed and for which he has no excuse”.
        12. In Justin v. The State, rep. By the Inspector of Police, reported in 1988 L.W. (Cri) page 467, this
Court held as follows:—
            “4.     In cases of complaints and counter complaints, the procedure to be followed by the
                    Investigating Officer is laid down under O.588-A of the Madras Police Standing Orders.
                    The Investigating Officer has to enquire into both the complaints, find out who were the
                    aggressors and file the charge-sheet against them or refer both the cases if he finds them
                    untrue. Where the Investigating Officer finds it difficult to choose either of the above
                    courses he should seek the opinion of the Public Prosecutor and act accordingly. The
                    Investigating Officer in this case has evidently contravened the express provisions of
                    O.588-A of the Madras Police Standing Orders in charge-sheeting both the cases. The
                    result is that there are now two        prosecutions in respect of the same matter against
                    opposite parties. The course adopted by the Investigating Officer is not only proper, but
                    also bad in law. In this view of the matter, the criminal proceedings below against the
                    petitioners herein are liable to be quashed”.
        13. In Jaipal. P. v. Sub Inspector of Police, Paramakudi, reported in 1989 LW (Cri) 445, this Court
held as follows:—
            “3.     The learned counsel appearing for the petitioners would          contend that the procedure
                    adopted by the police in charging both the cases, arising out the same transaction is
                    illegal and, therefore, the proceedings initiated against the petitioners in the Court below
                    are liable to be quashed. He would further amplify his arguments by stating that the
                    investigating machinery, in respect of the complaint and counter complaint, arising out
                    of the same transaction, should enquire into both of them and adopt one or other of the
                    two courses, namely to charge the case where the accused were aggressors or to          refer
                    both the cases if he should find them untrue. If the Investigating Officer finds that choices
                    of either course is difficult, namely to charge one of the two cases or to throw out both,
                    he should seek the opinion of the Public Prosecutor and act accordingly. The learned
                    counsel would further          submit that the investigating machinery in this case, has not
                    adopted the procedure as indicated above. The learned counsel for the petitioners would
                    also draw the attention of the Court to S.O.588-A of the Madras Police Standing Orders.
                    A cursory perusal of this provision would make it abundantly clear that the charging of
                    both the cases, arising out of the same transaction, is clearly illegal and such a course
                    cannot at all be adopted. In such circumstances, there is no other go except to hold that
                    charging both the cases, arising out of the same transaction, is illegal and, therefore, the
                    proceedings initiated against the petitioners in the Court below are liable to be quashed.”
        14. As per the provisions of S.O.588-A of the Madras Police Standing Orders the case filed by the
appellants also ought to have been investigated and a final report ought to have been filed either charging
the accused or referring it as a mistake of fact. But the Investigation Officer has not done so. As provided
in S.O.588-A, a complaint and counter complaint obviously arising out of the same transaction the
investigating officer should enquire into both of them and adopt one or the other of the two courses viz., (1)
to charge the case where the accused were the aggressors; or (2) to refer both the cases if he should find
them untrue. When the investigating officer            proceeds on the basis of the complaint it is his duty to
exhibit the counter complaint in the Court and also to prove medical certificate of persons wounded on the
opposite side. He should place before the Court a definite case which he asks it to accept. The investigating
officer in such cases should not accept in toto one complaint and examine only witnesses who support it
and give no explanation at all for the injuries caused to the other side. The truth in these cases is invariably
not in strict conformity with either           complaint and it is quite necessary that all the facts are placed
before the Court to enable it to arrive at the truth and a just decision. If the Investigating Officer finds that
the choice of either course is difficult, viz., to charge one of the two cases or to throw out both, he should
seek the opinion of the public prosecutor of the District and act accordingly. But, in the instant case, the
Investigation Officer has not obtained any opinion from the Public Prosecutor as to the filing of charge
sheet in both the cases. The Investigating Officer might have felt that both the parties have been in
aggressive mood, and was not in a position to determine who was the aggressive party and having satisfied
that the sequence of events is so clear and offences have been committed by each of the party could have
filed positive reports under Section 173 against both the parties. Even then, in view of the special
features of the case as enumerated herein, this Court is of the firm view that it is not safe to fasten criminal
liability upon the accused in both the Sessions Cases as had been done by the Court below.
         15. In the prosecution evidence, there is no explanation as to how some of the accused in both the
cases sustained injuries. Therefore, failure to explain the injuries on the accused would show that the
version given by prosecution witnesses is not completely true. Therefore it is very unsafe to rely on the
prosecution evidence in both the cases to bring home the guilt of the respective accused. In the above
circumstances, the appellants in both the criminal appeals are entitled for acquittal of all the charges.
         16. In the result, both the criminal appeals are allowed. The conviction and sentence of the
appellants are set aside and they are acquitted and the fine amount paid shall be refunded to them. The bail
bonds executed by them shall stand cancelled.
                                                                                               Appeals allowed.



                                       [2008 (1) T.N.L.R. 239 (Mad)]
                                          MADRAS HIGH COURT
BEFORE:
             D. MURUGESAN AND V. PERIYA KARUPPIAH, JJ.
                        K. PONNUVEL AND OTHERS                                                   ...Appellants
                                                   Versus
                       STATE REP. BY INSPECTOR OF POLICE                                       ...Respondent
             [Criminal Appeal Nos. 425, 513 and 918 of 2005, decided on 22 nd January, 2008]
       Evidence Act, 1872—Section 3—Indian Penal Code, 1860— Section 302—Non-explanation
of injuries—Offence of murder—              Complainant and accused both parties belong to political
parties—Allegation against appellant of repeatedly hitting on head by iron rod—Death—Conviction
by Trial Court—Validity of—Held, in              occurrence both parties sustained injuries—Report of
doctor that accused sustained grievous injuries—Prosecution not explained injuries of accused—
Hence, fatal to prosecution as genesis of prosecution is doubtful—Thus conviction set aside—Appeal
allowed.
                                                                                           (Paras 25 to 29)
       Case law.—1976 SCC (Cri) 671; AIR 1968 SC 1281; 1975 SCC (Cri) 384; 1991 Cri LJ 1343; 2003
SCC (Cri) 326; 2003 SCC (Cri) 1829; 2007 SCC (Cri) 323; 2007 (2) SCC (Cri) 214.
       Counsel.—Mr. K. Selvakumaraswami for A-1 and A-2 in Cri.A.No. 918 of 2005, Mr. B.
Kumarasamy for A-3 in Cri. A.No. 425 of 2005, Mr. B. Vasudevan for A-4 in Cri.A.No. 513 of 2005, for the
appellants; Mr. V.R. Balasubramanian Addl. Public Prosecutor, for the respondent.
                                                JUDGMENT
       D. MURUGESAN, J.—All the above appeals arise out of a common             judgment of the learned First
Additional Sessions Judge, Salem dated 29.4.2005 made in S.C.No.96 of 2004. By the said judgment, the
appellant in Cri.A.No.425 of 2005, who was tried as A-3, was found guilty of the offence under Section
323, IPC (2 counts) and sentenced to undergo six months simple imprisonment for each count and also to
pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for three months on each count
and the sentences are to run concurrently. The appellant in Cri.A.No.513 of 2005, who was tried as A-4,
was found guilty of the offence under Section 323, IPC and sentenced to undergo three months simple
imprisonment and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for two
months. The appellants in Cri.A.No.918 of 2005, who were tried as A-1 and A-2, were found guilty of the
offence under Section 302, IPC and each was sentenced to undergo life imprisonment and also to pay a fine
of Rs.1,000/-, in default to undergo rigorous imprisonment for six months. So far as the other charges, A-1
to A-4 were acquitted. Hence they are taken up together for disposal by this judgment.
        2. Before the learned First Additional Sessions Judge, Salem, in all, seven accused were put on trial
for various charges. The learned Judge acquitted A-5 to A-7 after holding that the prosecution has not
established its case against them, but found the appellants/A-1 to A-4 guilty, convicted and sentenced them
for the offence as stated above. For convenience, the appellants are referred to as A-1 to A-4 as arrayed in
the sessions case.
        3. The prosecution case in brief is as follows:—
        The prosecution party belongs to AIADMK political party and the accused party belongs to DMK
political party. P.Ws.1, 2, 3, 6 and 7 are all the residents of Mecheriyampalayam village within the Mallur
police limits in Salem District. A-1 is also a resident of the same village and A-2, A-4 to A-6 are all the
residents of a nearby village called Sandhaiyur. A-3 is a resident of K.Mookkuthipalayam and A-7 is a
resident of Kottaivalavu village which is also a nearby village to Mecheriyampalayam. During the elections
to the legislative assembly as well as to the local bodies that took place prior to the occurrence, both the
parties worked for the respective party candidates and due to the elections, there was political rivalry
between both the groups. On 21.10.2001, when P.W.2, Arumugam was taking some goats to
Panamarathupatti shandy at about 6.30 a.m., at the same time, P.W.1, Raja @ Sengoda Gounder, who is the
father of P.W.2, was also taking some goats to the same shandy keeping some distance from P.W.2. At that
time, A-7 waylaid P.W.2 and attacked him with hands by saying that even when his party was defeated in
the elections, why does he require a place in the shandy. To escape from further attack, P.W.2 ran away
from the place and informed P.W.1.
        4. On the next day i.e., on 22.10.2001 at about 7.00 a.m., P.Ws.1, 2, 3 and the deceased by name
Thangavelu went to question A-7 as to the attack to P.W.2, they saw A-1 to A-7 standing along with 20
others and armed with sticks, stones, iron rods and koduval. When P.W.1 questioned A-7 as to the attack
of P.W.2 by him, A-4 hit P.W.1 with a stone on the back of his head, A-3 hit with a stick on his forehead,
left hand and nose. When the deceased Thangavelu intervened, A-2 cut the deceased with Koduval, M.O.2
on his forehead and at the same time, A-1 hit the deceased repeatedly on his head with iron rod, A-5 hit the
deceased on his right leg with iron rod, A-6 also repeatedly hit the deceased on the left side of his head with
iron rod repeatedly. A-7 attacked P.W.3 with a stick on his right shoulder. The above occurrence was
witnessed by P.Ws. 1 to 3, 5 and some other persons. On coming to know of the occurrence, P.W.4, a well-
wisher of the injured witnesses, went to the scene of occurrence and took the deceased and the injured in
her car to the Government Hospital, Salem, where Dr.Manimegalai, P.W.9 admitted P.Ws.1 to 3 as well
as the deceased for treatment. As the condition of the deceased was serious, he was taken to Gokulam
Hospital, Salem for further treatment and one Dr.Dineshi, P.W.11 admitted the deceased for treatment and
forwarded the accident and injury memos to the police.
        5. On receipt of intimation from the hospital, P.W.16, the Inspector of Police attached to Mallur
Police Station, went to the Government Hospital, Salem and recorded the oral complaint, Ex.P-1 at 10.00
a.m., given by P.W.1 and registered a case under Sections 147, 148, 31, 324 and 307, IPC against A-1 to A-
4 and 20 others. He prepared the printed First Information Report, Ex.P-34. As the deceased died at about
11.00 a.m., and was informed through the death memo, Ex.P-27, he altered the offence of Section 307, IPC
into one of Section 302, IPC and sent the express report, Ex.P-35 to the Judicial Magistrate, Salem and to
the higher police officials. He thereafter went to Gokulam Hospital, Salem and conducted inquest in the
presence of the witnesses on the body of the deceased between 12.00 noon and 12.30 p.m., and prepared
the inquest report, Ex.P-36. He gave a requisition under Ex. P-30 and sent the body of the deceased
through the Head Constable, P.W.14 for conducting post-mortem.
        6. P.W.13, Police Surgeon attached to Government Mohan Kumaramangalam Medical College and
Hospital, Salem, commenced post-mortem on the body of the deceased at 4.25 p.m., on 22.10.2001 and he
noted the following ante-mortem injuries:—
           “(1) A gaping cut injury present over left fronto parietal region of scalp 8 cm x 0.5 cm x bone
                   deep with cut fracture of bone present beneath.
            (2) A gaping lacerated injury present over middle of forehead 5 cm x 2 cm x bone deep with
                   a depressed fracture of frontal bone present beneath it 4 cm x 1 cm.
            (3) A gaping lacerated injury present over left side of frontal region of scalp 2.5 x 0.5 x bone
                   deep.
           (4)     A gaping lacerated injury on left tempero parietal region of scalp 7 cm x 0.5 cm x bone
                   deep.
            (5) A gaping lacerated injury over right side of occipital region of scalp 5 cm x 0.5 cm x
                   bone deep.
            (6) A lacerated injury over left side of frontal region of scalp 2 cm x 0.5 cm x bone deep.
            (7) A lacerated injury present over right leg 4 cm x 0.5 cm x 0.5 cm.
            (8) Subdural and subarachnoid haemorrhage present over both cerebral hemisphere.
            (9) Comminuted fracture of anterior crenial fossa present.”
        He issued the post-mortem certificate, Ex.P-31 with his opinion that the deceased died of effects of
head injuries.
        7. In the meantime, P.W.15, the Sub Inspector of Police attached to Mallur Police Station, on
receiving intimation from the Government Hospital, Salem, went to the hospital at 11.20 a.m., and recorded
the oral        complaint, Ex.P-32 given by A-6 alleging that in the same occurrence, himself and the other
accused sustained injuries at the hands of the prosecution witnesses. He registered a case in Cr.No.770 of
2001 for the offence under Sections 323 and 324, IPC and sent the printed First Information Report, Ex.P-
33 to P.W.16 as well as to the Court.
        8. P.W.16, continuing with his investigation, examined the witnesses and recorded their statements.
He went to the occurrence place at 5.00 p.m., and prepared the observation mahazar, Ex.P-2 in the presence
of P.W.7 and other witnesses. He also recovered the bloodstained earth, M.O.4 and sample earth, M.O.5
under the mahazar, Ex.P-3 in the presence of the same witnesses. He also went to the Government
Hospital, Salem where A-4 to A-7 were taking treatment and remanded them to judicial custody after
recording their statements. On 27.10.2001 at about 7.00 a.m, he arrested A-1 to A-3 at Yervadi bus stop
in the presence of P.W.12 and recorded their statements. In pursuance of the admissible portion of the
confession of A-1 under Ex.P-28, he recovered two sticks, M.O.1 series, koduval, M.O.2, iron rods, M.O.6
series and another iron rod, M.O.7 from the house of A-3 under the mahazar, Ex.P-29. He remanded A-1 to
A-3 to judicial custody. On the basis of the requisition given under Ex.P-21, he received the chemical
analyst’s report, Ex.P-23 and the serologist’s report, Ex.P-24. He examined the          doctor, P.W.9 who
treated P.W.1 as well as A-4 to A-7 and one Kandayee, wife of A-4, and recorded his statement. He
conducted investigation        relating to Cr.No.770 of 2001 and after examining the witnesses in that case,
filed the final report under Ex.P-38 to the Court by referring the case as mistake of fact. On completing
investigation on 10.1.2002 in Cr.No.769 of 2001, he laid the charge-sheet against A-1 to A-7 for the
offence under Sections 148, 341, 324, 324, 302 read with 149, IPC before the Court.
        9. To prove the charges against A-1 to A-7, the prosecution examined 16 witnesses, marked 38
exhibits and produced 9 material objects.
        10. When A-1 to A-7 were questioned under Section 313 of the Criminal Procedure Code as to the
incriminating materials appearing against each of them, they denied each and every incriminating material
as false. A-2 to A-4 also filed their written statements. No witness was examined and no document was
marked on the side of the defence.
        11. Mr.K.Selvakumaraswami, learned counsel for the appellants/A-1 and A-2 would submit that the
prosecution has not come out with true           version as to the occurrence and the very genesis of the
prosecution case is highly doubtful. In support of the above submission, the learned counsel has
extensively taken us through the entire evidence. According to the learned counsel, due to political rivalry,
on the date of occurrence, the witnesses namely, P.Ws.1, 2, 3 and the deceased have gone to question A-7
as to the attack said to have been made by A-7 on P.W.2. The above witnesses and the deceased are only
the aggressors. While A-7 was questioned, there was a clash between two groups and in the occurrence,
not only the prosecution party but also the accused party sustained injuries. In fact when the
complaint, Ex.P-34 was given by P.W.1, the same was registered in Cr.No.769 of 2001. A counter
complaint in Ex.P-33 was also given by A-6, which was also registered in Cr.No.770 of 2001. Though
both the complaints were          enquired into, only to support the prosecution party, the Investigating
Officer, P.W.16 filed a final report, Ex.P-38 in Mallur Police Station Cr.No.770 of 2001 given by A-6 after
referring the case as mistake of fact. Even in the said report, he has admitted that the accused party also
sustained injuries in the same melee. While that being so, none of the eye-witnesses namely, P.Ws.1, 2, 3, 5
and 6 have spoken about the injuries sustained by the accused party as well. The suppression of the same
would throw a serious doubt about the veracity of the evidence of the eye-witnesses, as they have not come
with true version of the entire occurrence. He would submit that the doctor-P.W.9, who treated P.Ws.1 and
3 immediately after the occurrence, has also treated A-4, A-5, A-6 and A-7 and one Kandayee, wife of A-4.
The said doctor has deposed that he was informed that the injuries sustained by both the witnesses and the
accused are at the same time and in the same occurrence. The injuries sustained by the accused are serious,
particularly, A-5 and one Kandayee, wife of A-4, were treated for nearly 10 days and 20 days respectively
as in-patients. The learned counsel would submit that it is not only a case of mere non-explanation of the
injuries sustained by the accused, but also the prosecution witnesses have suppressed the actual
occurrence namely, suppressing the injuries sustained by the accused in the same occurrence, throwing a
serious doubt about the very genesis of the prosecution case itself. He would also draw our attention to the
vital         discrepancies between the evidence of the eye-witnesses, especially the       injured witnesses
namely, P.Ws.1 and 3, while they first informed the       doctor, P.W.9 as to the persons who have assaulted
them. While P.W.1 has stated that he was assaulted by 20 persons, P.W.3 has stated that he was attacked
by 3 persons. He would also submit that the prosecution party being the aggressors, the entire prosecution
case is foisted only on the accused party and the death had occurred in the fight between two parties and
the case of the prosecution is that A-1 and A-2 have alone caused the fatal injury on the deceased
Thangavelu. Hence A-1 and A-2 are entitled to an acquittal.
         12. Mr.B.Kumaraswamy and Mr.B.Vasudevan, respective learned counsel appearing for the
appellants/A-3 and A-4 also adopted the arguments of Mr. K. Selvakumaraswami, learned counsel for the
appellants/A-1 and A-2.
         13. Mr.V.R.Balasubramanian, learned Additional Public Prosecutor, on the other hand, would
submit that the Investigating Officer, P.W.16, after investigation, has rightly referred the complaint given
by A-6 as mistake of fact and A-6 has not questioned such a report and has allowed it to become final. The
Court has therefore taken cognizance of the complaint given by P.W.1 implicating the accused for the
commission of the offence. He would also submit that Ex.P-38, the final report filed by P.W.16 is the
explanation as to the injuries sustained by the accused. The learned Additional Public Prosecutor would
further submit that merely because the injuries sustained by the accused are not spoken to by the eye-
witnesses, it cannot be          construed that there was no explanation as to the injuries sustained by the
accused and the final report, Ex.P-38 by itself would be sufficient for such an explanation and therefore the
contentions made on behalf of the appellants are unsustainable. He would also submit that the information
given by the witnesses to the doctor as to the number of persons has no relevance to discard the entire case
of the prosecution, as the doctor is expected only to give treatment to the injured persons in order to save
their lives and any endorsement made by the doctor as to the manner in which the occurrence had taken
place and the names of the assailants have no credibility, as there is every possibility for the witnesses to
give false information to the doctors. Hence the learned Additional Public Prosecutor submitted that there
are no discrepancies in the evidence of the eye-witnesses namely, P.Ws.1 to 3, 5 and 6 and the prosecution
has established its case beyond any reasonable doubt against the accused.
         14. We have given our careful and thoughtful consideration to the rival contentions. We have also
perused all the records placed before us including the judgment under appeal.
         15. Before we delve upon the issue as to whether the prosecution has explained the injuries on the
accused, we would like to survey the law laid down by the Apex Court on the issue. In the often-quoted
decision of the Apex Court in Lakshmi Singh and others v. State of Bihar, 1976 SCC (Cri.) 671, the Apex
Court has held that “it is well settled that fouler the crime, higher the proof, and hence in a murder case
where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-
explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that
the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible
conclusion that the prosecution has not come out with a true version of the occurrence”.
         16. In the above judgment, the Apex Court has quoted with approval the earlier two judgments in
Mohar Rai v. State of Bihar, AIR 1968 SC 1281 and in State of Gujarat v. Bai Fatima, 1975 SCC (Cri.)
384. In Mohar Rai’s case, the Apex Court, while considering the non-explanation of as many as 13 injuries
on Mohar Rai, the appellant, and 14 injuries on the other accused, has held that “it is the duty of the
prosecution to explain those injuries and the failure of the prosecution to offer any explanation in that
regard shows that the evidence of the prosecution witnesses relating to the incident is not true or at any rate
not wholly true”.
         17. In Bai Fatima’s case, while considering the non-explanation of the injuries on the person of an
accused, the Apex Court has held that whether such failure on the prosecution to explain the injuries on the
person of an accused would be fatal to the prosecution case depends upon the facts of each case. Such non-
explanation may result as follows: (1) that the accused had inflicted injuries on the members of the
prosecution party in exercise of the right of self-defence; (2) it makes the prosecution version of the
occurrence doubtful and the charge against the accused cannot be held to have been proved beyond
reasonable doubt; (3) it does not affect the prosecution case at all. One of the reasons of non-explanation of
the injuries observed by the Apex Court is that such non- explanation makes the prosecution version of the
occurrence doubtful and secondly, the charge against the accused cannot be held to have been proved
beyond reasonable doubt. The Apex Court in Lakshmi Singh’s case has also held that “it is well settled that
it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to
prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution
case which is sufficient to enable the Court to reject the prosecution version”.
         18. In State of Rajasthan v. Madho and another, 1991 Cri.L.J. 1343, the Apex Court, while again
considering the non-explanation of the injuries on the accused, had agreed with the view of the High Court
in brushing aside the evidence of the prosecutrix when the witnesses failed to explain the injuries by the
accused and consequently, did not interfere with the              judgment of the High Court in acquitting the
accused on that ground.
         19. In Raghunath v. State of Haryana and another, 2003 SCC (Cri.) 326, the Apex Court, while
considering the non-explanation of the injuries on the accused, has observed “that the non-explanation of
the injuries sustained by the accused which are grievous in nature, renders the prosecution story not wholly
true”.
         20. In State of Madhya Pradesh v. Mishrilal (dead) and others, (2003 SCC (Crl.) 1829), the Apex
Court has reiterated the same law by observing that “none of the prosecution witnesses explained the
injuries sustained by the accused, the prosecution has not presented the true version on the most material
part of the case and their evidential value does not inspire           confidence of the Court and it cannot be
accepted on its face value and therefore the non-explanation of the injuries sustained by the accused proved
fatal to the prosecution case”.
         21. On the other hand, our attention is also drawn by the learned Additional Public Prosecutor to the
judgment of the Apex Court in Abdul Rashid Abdul Rahiman Patel and others v. State of Maharashtra,
2007 (3) SCC (Cri.) 323 and submitted that the non-explanation of the injuries on the accused by itself
would not be fatal. That was a case where the Apex Court was considering only a case of simple and minor
injuries sustained by the accused which were possible by accidental blows from the accused upon
themselves while they were attacking some other persons and in that view of the matter, it was held that the
non-explanation of such simple and minor          injuries cannot be a ground to reject the prosecution case.
         22. The learned Additional Public Prosecutor would also rely upon yet another judgment of the
Apex Court in Krishan and others v. State of Haryana, 2007 (2) SCC (Cri.) 214, for the same proposition
that even when the prosecution has failed to explain the injuries on the accused, the same cannot be the
solitary ground for doubting the prosecution case, if otherwise the evidence relied upon is found to be
credible. The Apex Court has             observed that only when the evidence of the prosecution witnesses is
found to be credible, the non-explanation of the injuries would not be a solitary ground to reject the
prosecution case.
         23. The survey of the law on the issue will lead to the following conclusions namely, the failure of
the prosecution to offer any explanation as to the injuries sustained by the accused is not fatal to the
prosecution case, if otherwise the evidence relied upon by the prosecution is found to be               credible.
Similarly, failure to explain the injuries on the accused which are minor and simple and the possibility of
the accused sustaining such injuries in the course of the occurrence by themselves, may not lead to the
conclusion as to the falsity of the prosecution case. However, a different consideration will arise, if the
injuries are grievous in nature. In such circumstances, the burden on the prosecution to discharge the failure
to explain the injuries on the accused will be greater. The prosecution case could be disbelieved in the
event of failure to explain the injuries and also the absence of either other acceptable evidence or
incriminating materials against the accused. In the event the prosecution witnesses suppress the very fact,
namely the injuries sustained by the accused in the same occurrence, their evidence on other aspects as well
must be held to be untrue as the witnesses are untrustworthy. Even in cases where the injuries are minor or
simple, unless there is a possibility of the accused sustaining such injuries in the occurrence, and such
possibility is not spoken to by the prosecution witnesses, the non-explanation would throw serious doubt
about the prosecution version resulting in the benefit of doubt to the accused.
        24. As the issue namely, the non-explanation of the injuries on the person is not a question of law
but is a question of fact and depends on facts and circumstances of each case, let us now discuss the
prosecution case to find out as to whether the accused had sustained injuries and that too in the same
occurrence and if so, whether such injuries are grievous or simple or minor in nature and whether the
prosecution has explained those injuries and if those injuries are not explained, whether the same would
affect the prosecution case.
        25. It is an admitted case on either side namely, the prosecution and the defence, that the motive for
the occurrence is the elections held prior to the occurrence and both parties belong to two different political
parties. Just one day prior to the date of occurrence i.e., on 21.10.2001, P.W.2 was assaulted by A-7 due to
the political rivalry. When the same was reported to P.W.1, the father of P.W.2, P.Ws.1,2,3 and the
deceased have gone to A-7 to question him on 22.10.2001 at about 7.00 a.m., and there was a scuffle which
resulted in exchange of attack as could be seen from the two complaints registered by the police on the
same day namely, Ex.P-34 in Cr.No.769 of 2001 at the instance of P.W.1 against the accused and Ex.P-33
in Cr.No.770 of 2001 at the instance of A-6 against the prosecution party. This is also evident from Ex.P-
38, the final report filed by P.W.16, the Inspector of     Police in Mallur Police Station Cr.No.770 of 2001,
wherein he has stated that the accused also sustained injuries and the prosecution party namely, the
witnesses are the aggressors. When the accused were questioned under Section 313 of the Criminal
Procedure Code, each of the accused has specifically stated that in the occurrence, they also sustained
injuries. P.W.16, the Investigating Officer in his evidence has also admitted the injuries sustained by the
accused in the same occurrence, as he has registered the case in Cr.No.770 of 2001 and examined the
injured namely, A-4, A-5, A-6, A-7 and one Kandayee, Wife of A-4, in the hospital while they were taking
treatment. He has also admitted that he enquired P.Ws.1 and 3 also at the same time in the hospital and
recorded the complaint registered in Cr.No.769 of 2001. From the above, it could be seen that both P.Ws.1,
3 and the deceased on one side and A-5, A-6, A-7 and one Kandayee on the other side have sustained
injuries in the same occurrence and P.W.9, the doctor, has also stated that he was informed that all the
injuries sustained by all of them are in the same occurrence. Hence we hold that the injuries sustained by
A-5, A-6, A-7 and Kandayee are all in the same occurrence where P.W.1, P.W.2 and the                   deceased
sustained injuries.
        26. The next question to be considered is whether the injuries            sustained by the accused are
simple, grievous or minor. P.W.9, the doctor, who has admitted P.Ws. 1 and 3 as well as A-4, A-5, A-6, A-
7 and one Kandayee, has also deposed that he examined A-4 at 9.45 a.m., and issued the accident register,
Ex.P-11 and wound certificate, Ex.P-12, A-5 at 9.45 a.m., and issued the accident register, Ex.P-13 and
wound certificate,Ex.P-14, A-6 at 10.05 a.m., and issued the accident register, Ex.P-15 and wound
certificate, Ex. P-16, A-7 at 9.35 a.m., and issued the accident register, Ex.P-17 and wound certificate,
Ex.P-18, and Kandayee at 10.15 a.m., and issued the accident register, Ex.P-19 and wound certificate,
Ex.P-20. He has also deposed that A-5 was treated for the injuries as in-patient for 10 days and Kandayee,
wife of A-4, was treated as in-patient between 22.10.2001 and 11.11.2001. The doctor has opined that as
far as the injuries sustained by A-5 is concerned, the injury is on the right parietal region with 5 x 3 x bone
depth, necessarily meaning the same as grievous. Though the doctor has stated that the              injuries are
simple in nature in the wound certificate, Ex.P-14 and from her evidence it is seen that A-5 was treated as
in-patient for 10 days, we are of the considered view that the injuries sustained by A-5 on the head are
grievous. Similarly, the injuries sustained by Kandayee is on right parietal region and the doctor has though
opined in Ex.P-20 that the injuries are simple in nature, from her evidence, it is clear that the said
Kandayee has been admitted as in-patient and treated for nearly 20 days. The fact that both the above
accused were treated as in-patient for 10 days and 20 days respectively, would go to show that the injuries
are not simple, but are         grievous. Hence we hold that the injuries sustained by Kandayee and A-5 are
grievous.
        27. This leads us to the further question as to whether the prosecution has explained those injuries.
Admittedly, P.Ws.1, 2, 3, 5 and 6, who have deposed as to the implication of the accused and were present
in the         occurrence place, have not whispered even a single word as to any of the injuries, whether
simple or grievous, sustained by the accused. The reason is obvious namely, they have not come forward
with true version of the prosecution case. Strangely, the Investigating Officer, who has registered the
counter case, after examining the injured witness and the accused on the same day in the hospital, has
referred to the complaint given by A-6 against the prosecution witnesses as mistake of fact solely on the
ground that one of the persons from the prosecution side had died, leaving the prosecution witnesses to go
scot-free for the offences they had committed in causing injuries on the accused. The evidence of P.W. 16,
the Investigating Officer also goes to show that the accused had sustained injuries in the same occurrence.
The explanation so offered by the Investigating Officer and the failure on the part of the prosecution
witnesses to speak about the injuries do not go together. The failure on the part of the eye-witnesses
creates a reasonable suspicion in the mind of the Court as to the veracity and the truthfulness of their
evidence. When once it is found that the eye-witnesses have suppressed a portion of the occurrence to their
benefit, the witnesses are not trustworthy and their evidence do not inspire confidence in the Court giving
serious doubt and suspicion as to the evidence. This creates a      suspicion as to the very prosecution case
itself. Further, there are no other materials to show that the injuries sustained by the accused have been
explained by the other evidence. In these circumstances, we are of the considered view that the evidence of
the eye-witnesses namely, P.Ws.1 to 3, 5 and 6 are untrustworthy, lacks credibility, throwing suspicion as
to the entire prosecution case. Therefore, the prosecution has not come forward with true version of the
occurrence and consequently, the genesis of the prosecution case itself is doubtful.
        28. If the evidence of the above eye-witnesses are disbelieved, there are no other materials to hold
that the accused have committed the offence. In the absence of any evidence to prove the case of the
prosecution beyond any reasonable doubt, the benefit of doubt should be given to the accused.
        29. For all our discussions and findings, the judgment of the learned First Additional Sessions
Judge, Salem dated 29.4.2005 made in S.C.No.96 of 2004 is set aside and the criminal appeals are allowed.
The appellants/        accused Nos.1 to 4 are acquitted of all the charges. Bail bonds executed by the
appellants shall stand terminated. Fine amount, if any, paid by them is ordered to be refunded.
                                                                                            Appeals allowed.

								
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