Valli v. The Inspector of Police

ORDER This petition has been filed under Section 482 Cr.P.C., to direct the second respondent to register the FIR based on the complaint given by the petitioner, dated

28.1.2013 and proceed in accordance with law.

¶2The learned Government Advocate (Crl. Side) representing the respondents submitted that petition enquiry is pending in the matter. Page No. 28 of 43

¶3In view of the above, the second respondent is directed to complete the enquiry withing a period of two weeks from the date of receipt of a copy of this order and act in accordance with law.

¶4The Criminal Original Petition is disposed of with the above direction. Consequently, the connected Miscellaneous Petition is closed.

12.8. To be noted, Charge Sheet dated January 25th, 2013 has been filed before the Judicial Magistrate on May 8th, 2014. This Court has perused the Charge Sheet dated January 25th, 2013. There is no reference pertaining to the complaint given by A1.

12.9. As alluded supra, A1 and A2 have denied the incriminating circumstances against them in their examination under Section 313 of Cr.P.C. To be noted, A1 and A2 filed Written Statement under Section 313(5) of Cr.P.C and A1 has annexed medical records, which belies the entries made in Ex.P.17, along with his Written Statement.

12.10. At this juncture, this Court would like to refer to the Hon'ble Supreme Court's Judgement in Kali Ram's case [Kali Ram Vs. State Of Page No. 29 of 43 Himachal Pradesh, reported in (1973) 2 SCC 808]. Relevant extract is as follows:

¶25Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures or fanciful considerations. As Page No. 30 of 43 mentioned by us recently in the case of State of Punjab v. Jagir Singh [(1974) 3 SCC 227 : 1973 SCC (Cri) 886] a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

12.11. In this case, two possible views could be inferred from the evidence adduced from either side. In such a situation, the onus is on the prosecution to explain the same. In failure to do so, the Court has to consider the view favourable to the accused. It is settled law that the standard of proof required for defence is preponderance of probabilities. This Court is of the opinion that the prosecution has miserably failed to Page No. 31 of 43 explain the injury sustained by A1. On the other hand, A1 has established that he got injured in the course of some scuffle between the deceased' party and the accused. Therefore, in view of Kali Ram's case and the above reasons, this Court is of the view that the accused are entitled to benefit of doubt. Arrest, Confession and Recovery

¶13P.W.11 is the Investigation Officer in this case. He deposed that he arrested A1 and A2 at 23.30 hours on November 16th, 2012 and recorded the voluntary confession given by them, the admissible portion of which is marked as Ex.P.4 and that pursuant to the confession, he recovered Wooden Log (M.O.1) and Cement Stone (M.O.2) under Ex.P.5.

13.1. According to the prosecution, the occurrence took place at

18.00 hours on November 16th, 2012. A1 and A2 were arrested at 23.30 hours on the same day. But, the arrest memo of A1 and the arrest memo of A2 specify that the arrests were made on November 16th, 2012, at 23.30 hours (A1) and at 16.30 hours (A2) respectively. To be noted, FIR (Ex.P. 14) was registered at 19.30 hours on the aforementioned date. Page No. 32 of 43

13.2. P.W.1 in his evidence deposed that A1 and A2 were at Manamadurai Police Station at 20.00 hours on the aforementioned date; that he thought that they were held at Police Station in pursuance of his Written Complaint (Ex.P.1) and that he himself handed over the Wooden log (M.O.1) at the Police Station. In view of the above discussions, the arrest, confession and recovery as spoken by the prosecution are riddled with doubts and therefore not reliable and trustworthy. Vandalization of A1's Shop

¶14P.W.1 in his evidence admitted that the accused's shop was vandalized; however, he was not present at the time, nor is he aware of the vandals. The Investigation Officer (P.W.11) in his evidence specifically admitted that A1's shops were already vandalized when he rushed to the scene of occurrence upon receiving the case files at 20.00 hours on November 16th, 2012. He further admitted that the occurrence place is a residential cum commercial area and that he did not investigate about the vandals. The subsequent Investigation Officer (P.W.12) also admitted in his cross-examination that the shop was vandalized and no investigation about the vandals was conducted. To be noted, the alleged occurrence happened at 18.00 hours in busy and bustling area which means there Page No. 33 of 43 would have been many ocular witnesses for the alleged occurrence. This Court has perused the list of witness annexed along with the Final Report (Charge Sheet) which reveals that Investigation Officer (P.W.11) cited P.W.1 to P.W.3 alone as ocular witnesses. The Investigation Officer (P.W. 11) has not examined any independent ocular witness and no reasons were assigned in this regard. Non-examination of independent witness coupled with non-explanation of injury sustained by A1, given the facts and circumstances, creates serious doubts in the case of the prosecution.

14.1. It is apposite to cite here the Hon'ble Supreme Court's decision in Lakshmi Singh's case [Lakshmi Singh Vs. State of Bihar reported in (1976) 4 SCC 394]. Since criminal cases turn heavily on facts, this Court would first like to extract the relevant paragraphs capturing the facts therein hereunder:

¶4Appellant Ramsagar Singh and his brother Dasrath Singh were full brothers being sons of Maharaj Singh. They were residents of Village Alipur Hatha, Police Station Mahnar. The deceased Chulhai and one Ramasray were the first cousins of these two persons and the deceased Brahmdeo was a nephew of Chulhai. It appears from the prosecution case that the two families were living together in the same house in different portions having a common courtyard. There was some sort of partition between the two cousins and their children in which portions of the house were allotted to each branch. Page No. 34 of 43 Jaiwanti daughter of Ramdayal Singh one of the sons of Chulhai Singh was married on April 18, 1966 and Dasain Singh and others had fixed a marwa (marriage platform) in their common courtyard. The marriage passed off peacefully and the appellants Ramsagar Singh and Dasrath Singh never objected either to the marriage being held in the courtyard or to the construction of the marwa. Three days later i.e. on April 21, 1966, which according to the prosecution happened to be the day when the chauthari ceremony had been performed at about 4 p.m. when Dasain Singh, his father Chulhai Singh and others were sitting in the house the appellants Ramsagar Singh and Dasrath Singh armed with bhala and bana respectively appeared on the scene and asked Chulhai Singh and Dasain Singh to demolish the marwa. Chulhai Singh, however, protested and refused to demolish the marwa because it was customary in the family not to demolish the marwa until 1¼ months from the date of the marriage had elapsed. This led to an exchange of hot words and an altercation in the course of which other five appellants, namely, Lakshmi Singh, Ramprasad Singh, Jagdhari Singh, Jagdish Singh and Chhathu Singh joined the two appellants Ramsagar Singh and Dasarath Singh and made a common cause with them in assaulting the two deceased persons Chulhai Singh and Brahmdeo. According to the prosecution, Jagdhari Singh gave orders for assaulting the prosecution party and thereupon Ramsagar Singh assaulted Brahmdeo Singh with a bhala on his head, Dasrath Singh struck him with the lathi portion of his bana while Jagdish Singh and Jagdhari Singh assaulted him with lathis. Lakshmi Singh is said to have assaulted Chulhai Singh with a bhala in his abdomen and when he fell down he was assaulted with lathis by Chhathu Singh and Ramprasad Sah. Dasain Singh was also assaulted by Jagdhari Singh when he tried to intervene. Thereafter all the accused persons fled away. Dasain Singh and his brother Dangroo Singh carried the two deceased persons to Mahnar Hospital on rickshaw, where they were admitted. The ASI attached at the Mahnar Page No. 35 of 43 police station reached the hospital at 7.57 p.m. on receiving a slip from the doctor incharge of the Mahnar Hospital and found Brahmdeo Singh and Chulhai Singh unconscious. The ASI recorded the further statement of Dasain Singh which was treated as the first information report. Brahmdeo Singh however succumbed to his injuries at Mahnar Hospital, while Chulhai Singh, was advised to be taken to a bigger hospital at Hajipur and there he died the next day. After the usual investigation, the police submitted chargesheet against the seven accused who were put on trial and were convicted as indicated above. ...

¶12PW 8 Dr S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the post-mortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the court, on April 22, 1966 and found the following injuries on his person: "1.Bruise 3" × ½ " on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.

2.Incised wound 1" × 2 mm × skin subcutaneous deep on the lateral part of the left upper arm, near the shoulder joint.

3.Punctured wound 1/2" × 2 mm × 4 mm on the lateral side of the left thigh about 5 inches below the hip joint." In the backdrop of the above-mentioned facts, the Hon'ble Supreme Court in Lakshmi Singh's case has held as follows: Page No. 36 of 43

¶12.... According to the doctor Injury 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor is it believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. 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. ... ... ... It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: Page No. 37 of 43 "(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. ..."

14.2. Notably, the Hon'ble Supreme Court and various Hon'ble High Courts have consistently followed this decision in various cases, some of which are listed below. i. Bhagwan Sahai and Anr.Vs. State of Rajasthan reported in (2016) 13 SCC 171; ii. Nand Lal and others Vs. The State of Chhattisgarh, reported in (2023) 10 SCC 470 : 2023 SCC OnLine SC

¶262Page No. 38 of 43 iii. Arputhan Vs. State rep. by Inspector of Police, D6 Anna Square Police Station, Chennai, reported in 2023 (3) MWN (cr.) 310 (DB).

14.3. In the case on hand, A1 sustained grievous injuries. He has established that those injuries were caused by the deceased's parties. A1 had lodged a complaint dated January 28th, 2013 as soon as he was enlarged on bail in this case, against the deceased's family before the police. Since Police did not register FIR, he has filed Crl.O.P. (MD) No. 7555 of 2013 wherein the State has submitted that 'petition enquiry is pending in the matter'. Final Report (Charge Sheet) dated January 25th, 2013 was filed in this case without any reference or indication about the complaint given by A1. The Investigating Agency ought to have concluded the enquiry on the complaint given by A1 before filing Charge Sheet in this case. Inaction on the part of the Investigating Agency on the complaint given by A1 creates serious doubts in this case.

14.4. Conjoint reading of the Ex.P.17 and the evidence of Investigation Officer (P.W.11), Investigation Officer (P.W.12), and the defence side evidences (both witnesses and documents) would clearly Page No. 39 of 43 show that the prosecution has tried to suppress the genesis and origin of the occurrence and the grievous injuries sustained by A1. Therefore, this Court on the strength of Lakshmi Singh's case, comes to a conclusion that the accused (A1 & A2) are entitled to the benefit of doubt.

14.5. In view of the facts and circumstances of the case and in view of the principles stated by the Hon'ble Supreme Court in Lakshmi Singh's case and in Kali Ram's case, this Court comes to the conclusion that non-explanation of the injury sustained by A1 falls fatal to the case of the prosecution. As alluded to supra, in criminal jurisprudence, when two possible views could be inferred from the evidence adduced, the view favouring the acquittal of the accused must be adopted by the Court.

14.6. Further, A1 and A2 have denied the incriminating circumstances against them in their examination under Section 313 of Cr.P.C. To be noted, A1 and A2 have filed Written Statement under Section 313(5) of Cr.P.C and A1 has annexed medical records along with his Written Statement which belies the entries made in Ex.P.17. Page No. 40 of 43

¶15For the foregoing reasons, this Court is of the view that the prosecution has suppressed the very genesis or origin of occurrence, and that the prosecution has not proved the charges levelled against A1 and A2 beyond reasonable doubt. The Trial Court has wrongly convicted A1 A2 by relying upon the evidence of P.W.1 and P.W.2 and therefore, this Court inclines to interfere with the impugned Judgment. Accordingly, Point Nos.(i), (ii) & (iii) are answered in favour of the accused and against the prosecution.

¶16Before writing operative portion of this Judgment, this Court makes it clear that the Trial Court in paragraph 20(iv) of the impugned Judgment recommended the compensation to be paid to the legal heirs / dependents of deceased Bagirathi @ Pappa. Though these Criminal Appeals are allowed and A1 & A2 are acquitted from the charges levelled against them, considering the facts and circumstance of the case, findings of the Trial Court with regard to the compensation to the legal heirs/dependents of the deceased Bagirathi @ Pappa is not disturbed in this Judgment since parameters for awarding compensation does not depend on the proof of guilt of the accused. Page No. 41 of 43

¶17Resultantly, i. These Criminal Appeals are allowed. ii. The impugned Judgment dated 28.01.2020 passed by learned Principal Sessions Judge, Sivagangai in Sessions Case No.14 of 2015 is hereby set aside and A1 & A2 (appellants) are acquitted from the charges levelled against them. iii. The bail bond if any, executed by A1 & A2 (appellants) shall stand discharged. The fine amount if any paid by A1 & A2 (appellants) shall be refunded to them. (M.S., J.) (R.S.V., J.)

22.12.2023 Index: Yes Internet: Yes Speaking order JEN To

1.The Inspector of Police, Manamadurai Police Station, Sivagangai District.

2.The Principal Sessions Judge, Sivagangai.

3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Page No. 42 of 43 M.SUNDAR, J., and R.SAKTHIVEL, J., JEN Pre-Delivery Common Judgment made in

22.12.2023 Page No. 43 of 43

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on 29.11.2023 Pronounced on 22.12.2023 CORAM THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Valli W/o.Poovalingam ... Appellant in Crl.A.(MD)No.113 of 2020 Poovalingam S/o.Ottakaruppan ... Appellant in Crl.A.(MD)No.114 of 2020 Vs. The State through The Inspector of Police, Manamadurai Police Station, Sivagangai District. Crime No.455 of 2012 ... Respondent in both Crl.As. Common Prayer:- Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 [Act No.2 of 1974] praying to set aside the Conviction and Sentence imposed on the appellants by the learned Principal Sessions Judge, Sivagangai in S.C.No.14 of 2015 dated 28.01.2020. Page No. 1 of 43 For Appellants in both Crl.As. : Mr.K.Samidurai For Respondent in both Crl.As. : Mr.S.Ravi Additional Public Prosecutor C O M M O N J U D G M E N T R.SAKTHIVEL, J. By this common Judgment, the following Criminal Appeals are being disposed of. i. Crl.A.(MD) No.114 of 2020 preferred by 'Accused No.1 – Poovalingam' [henceforth 'A1' for the sake of brevity]. ii. Crl.A.(MD) No.113 of 2020 preferred by 'Accused No.2 – Valli' [henceforth 'A2' for the sake of brevity]. 2. The aforementioned Criminal Appeals are preferred by the respective 'appellants' [henceforth referred to as 'accused' for the sake of convenience] assailing the 'Judgment dated January 28th, 2020' [henceforth 'impugned Judgment' for the sake of brevity] passed by 'The Principal Sessions Court, Sivagangai' [henceforth 'Trial Court' for the sake of brevity] in Sessions Case No.14 of 2015 in which both the accused were convicted and sentenced as follows: Page No. 2 of 43 Crl.A. (MD) No. Accused No. Offence u/s. Sentence 114/2020 Accused No.1 (Poovalingam) 302 of IPC To undergo Imprisonment for Life and to pay a fine of Rs.5,000/-, in default thereof, to undergo Rigorous Imprisonment for a further period of 3 months. 113/2020 Accused No.2 (Valli) 324 of IPC To undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.2,000/-, in default thereof, to undergo Rigorous Imprisonment for a further period of 3 months. Note: The period of imprisonment already undergone was ordered to be set off under Section 428 of Criminal Procedure Code, 1973 (Act No.2 of 1974) [henceforth referred to as 'Cr.P.C.' for the sake of brevity] 3. The case of prosecution case, in brief, is as follows: 3.1. The deceased-Bagirathi alias Paapa was residing in Manamadurai Burma Colony along with her husband namely, Baskaran (P.W.1); two sons namely, Nithyanandham (P.W.2) and Kasivishwanadhan; and one daughter. Poovalingam S/o.Ottakaruppan and Valli who are the accused in this case, are husband and wife. The accused also live in Burma Colony and own a petty shop there. The deceased's family and the accused's family were at odds over the theft of accused's hen. On November 16th, 2012 at 18.00 hours, the deceased was on her way Page No. 3 of 43 to buy milk along with her husband. While approaching Santhana Mariyamman Temple in Burma Colony, Manamadurai, the accused abused them with obscene words. When the deceased questioned them as to why the accused are interrogating them rather than interrogating those who actually stole the hen, A2 attempted to assault the deceased's husband namely, Baskaran (P.W.1) with a wooden log. Though Baskaran tried to ward off the assault, he got a simple injury on his thumb and index fingers. Then A2 instigated A1 by blaming the deceased for everything and urging A1 to kill the deceased. Upon the instigation, A1 hit the deceased at her right temple with the stone he had in his hand, with the aid of A2 who held the deceased tightly. The deceased fainted instantly. The said incident was witnessed by both the deceased's sons. The deceased was rushed to Manamadurai Government Hospital where she was declared brought dead. 3.2. Then P.W.1 went to Manamadurai Police Station and lodged the Written Complaint (Ex.P1) at 17.30 hours