D.V. Shanmugham
& ANR Vs. State of Andhra
Pradesh [1997] INSC
459 (25 April 1997)
G.N.
RAY, G.R. PATTANAIK
ACT:
HEADNOTE:
Present
Hon'bleMr. Justice G.N. Ray Hon'bleMr. Justice G.B. Pattanaik K. Parasaran, Sr.
Adv., V. Krishnamurthy, Adv.with him for the appellants Mrs. K. Amreshwari, Sr.
Adv.,G. Prabhakar, Adv. with her for theRespondent The following Judgment of
the Court was delivered:
JU D G
ME N T PATTANAIK, J.
The appealis
directed against thejudgment of theHigh Court of Andhra Pradesh dated15th April,
1994 in Criminal Appeal no. 695of 1993arisingout of SessionsCase No. 251 of
having committed several offences and weretried by the Additional Sessions
Judge, Chittoor at Tirupati and by judgment dated9th July, 1993all ofthem were
convicted under different sections of the penal Code. All ofthem except A-2 wereconvicted
underSection302/149IPC andwere sentenced to imprisonment for life. They were
also convicted under Section 148 andsentenced to imprisonment for one year,
under section307/149 theywere sentenced to imprisonment for five years and
underSection324/149were sentenced to imprisonment forone year, all the
sentences have been directed torun
concurrently. A-2 was convicted under Section 302 for causing murder ofMohan
and Sekhar and was sentenced to imprisonmentfor life, convicted under
Section307 and sentenced or rigorous imprisonment for 5 years and a fine of Rs.
200/- in a default imprisonment for 2 months convicted under Section 324IPC andsentenced
to imprisonment of one year, and324/149IPC andsentenced to imprisonment for one
year, sentences torun concurrently. In appeal,the High Court by the impugned
judgment set aside the conviction of accused Nos. 3, 4 and5 and acquittedthem
of allthe charges. The HighCourt Also set aside the Conviction andsentence of
accused No. 1 under Sections 148,307/149 and 324/149 IPC. His conviction under
Section 302/149 was modifiedto one undersection 302/34 and sentence of
imprisonment for lifewas confirmed. His conviction under Section 324 for
causing hurt to PW-2 was also maintained. so far as accused no. 2 is concerned
the High Court confirmed the conviction and sentence passed by the learned
Sessions Judge for the offence under Sections 302 and 307 IPC. His conviction
under Sections 148 and 324/149and thesentence passedthereunder was set aside
and thus the present appeal.
The
prosecution case innutshell is that all the accused persons belong to village Dasarimatam
and the complainant party belong to the same village. Some incident had
happened between the two groups on 6th May, 1990 in respectof which a complainant
had been lodged by accused No.1. on account of the Same there was ill feeling
between the two groupsand on the date ofoccurrence on22nd September, 1990at 8.00P.M. when one Natarajanwas coughing on account of his feverthe
accused No.1 was passing bythat road on his scooter. He tookthis to be a
taunting, and therefore, brought hisbrother accused No.2 and picked up quarreland
challenged him. Said Natarajan was a relation of the complainant. Shortly
thereafter at 10 P.m. the complainant PW1 and the
deceased - Mohan were returning from a theatre and whenthey had reached the
house of one V.
Murli
the fiveaccused persons formed themselves into an unlawful assembly andattacked
the complainant and the deceased with deadly weapons. While accused No.1 caughthold
of deceased-Mohan accused No.2 stabbed him with a knife on the abdomen and
Mohan fell down wounded. When the complainant, PW-1 intervened he was also
stabbed with a knife by accused No.2on hisleft hand and accusedNo.1 dealt a
blow with a stick onthe right hand. PW-1then raised an alarm and on hearing the
cries his relatives including Sekhar who isthe other deceased cameout of their
houses and rushed towards Mohan. Thefive accused persons then also attacked
these people andwhile accusedNo.3 caught hold ofSekhar, accused No.2 stabbed
him with knife on hisabdomen and caused fatal injury. These accused personsmore
particularly accused No.4 and 5 hurled stones which caused injury tothe member
of the complainant group.
AccusedNo.1
also stabbed one Ravi Kumar with aknife on his left elbow, asa result of which
said Ravi Kumar was injured. The injured persons were taken to thehospital for
treatment and Mohan died during the midnight on account of shock and haemorrhage as a result of the injuries
sustained by him. The sub-Inspector of Police, East PS,on receiving the
information about the incident rushed tothe hospital and recorded the statement
of injured Sekhar at5 a.m. on 23 rd September,1990 and Sekhar ultimately died
in the Hospital on 24th September, 1990 p.m. On the basis of information given
by PW-1 the investigation proceeded and on completion ofinvestigation charge
sheet was submitted againstthe five accused persons as already stated and on
being committedthey stood their trial.
The
prosecution to establish thecharges against the accused persons examined asmany
as 23 witnesses and exhibited a large number of documents. The defence did not
examine any witnessbut exhibited several documents including the former statementsof
the prosecution witnesses recorded underSection161 Cr.P.C. for the purpose of
contradicting them during thecourse of their examination during trial. The
learned Sessions Judge on scanning the evidence on record came to the
conclusion that the prosecution witnesses are reliable and basing upon their
testimony convicted the accused persons and sentencedthem as already stated.
The High Court, however, in the appeal reappreciated the evidence led by theprosecution
andcame to theconclusion that the prosecution has been able to establish the
charge beyond reasonabledoubt with regard to the role played by accused No.1
and 2for causing injuries to deceased - Mohan on account of which Mohan
ultimately died. But so far as theinjuries causedon Sekhar though the prosecution
hasbeen able to establish the roledescribed by accusedNo.2 on that score butthe
role ascribed to accused No.3 and 5 have not been established beyond reasonable
doubt. In otherwords, the HighCourt discardedthe evidence of the eye-witnesses sofar
as they ascribed different parts played by accused No.3, 4 and 5 in formingthe
alleged unlawful assembly and in assaulting the complainant party essentially
because none of them in their earliest version to thepolice and implicated
these accused persons. Having come to the aforesaidconclusion theHigh Court heldthat
none of the charges against accused No.3, 4 and 5 can be said tohave been
established by the prosecution and assuch they were acquitted of the charges.
But relying upon the evidence of the self-same prosecutionwitnesses theHigh Courtcame
tohold that the role ascribed toaccusedNo.1 and 2 in causing injuries on deceasedMohan
and Sekhar may be held to have been established beyond reasonable doubt, and
therefore, convicted A-2 under Section 302 IPC and A-1 under Section 302/34
IPC. TheHigh Court also convicted these accused 1and 2 who are the appellants
in this appeal under Section 324 IPC of causing hurt to PW-2 andPW-1
respectively and further convictedaccused No.2 under Section307 IPCfor
attempting to commit the murder of PW-7.
It may
be stated that the High Court gave a positive finding on reappreciating the evidencethat
accused No.4 and 5have not Pelted stones as narratedby the prosecution
witnesses an this finding will have vital bearing in deciding the presentcriminal
appeal. It may alsobe stated that the state has not preferred any appeal
against theacquittal of accusedNo.3, 4 and 5which order of acquittal hasthus
become final.
Mr. K.
Parasaran,the learned senior counsel appearing for the two appellants arguedwith
emphasis that no doubt two persons Mohan andSekhar have died in the course of
occurrence butthe prosecution story as unfolded through a number of prosecution
witnesses who are alleged to be the eye-witnesses to the occurrence is not the
correct version and theprosecution is guilty of suppressing the genesis and the
origin of the occurrence in asmuchas no explanation has been offeredfor the
injuries sustainedby the two appellants as well as their father Subramanium,more
particularly, the injuries onthe head of accused No.1 on accountof which the
said accused had multiplestitches and was required to be removed toNeurological
Surgical Centre and the injuryis grievous in nature, Mr. K. Parasaran furtherarguedthat
the prosecutionis also guilty of shifting theplace of occurrencein asmuchas
though according tothe prosecution witnesses the incident including the stabbingof
Mohan and Sekhar took place in front of the house of accused Murli but the
blood and blood stainedstone could be recovered from the Veranda of one Mr. Reddy
which isfar away from the houseof accused Murli and the prosecution is totally
silent as to how such blood and blood stained stone could be recovered from the
Veranda of Shri Reddy. Mr. K Parasaran also contented that all the prosecution
eye-witnesses are related to each other andthey have repeated the version in
the same mannerand theonly independent witness PW-10 didnot support the
prosecution case atall andin suchcircumstances when other independent witnesses
wereavailable as narratedby the prosecution witnesses themselves,
non-examination ofsuch other independent witnesses availableaffectsthe prosecutioncase
also. Mr. K. Parasaran, lastlyurged that the role ascribed to accused No.1 and
accused No.3 being identical namely accusedNo.1 caught hold of Mohan
whenaccusedNo.2 stabbed Mohan and accused No.3 caughthold of Sekharwhen accused
No.2 stabbed Sekhar andthe High Court having Re-appreciated the evidence has
already rejected the same so far as the role ascribedto accused No.3 is concerned,
thesame infirmities m relationto the role ascribed toaccusedNo.1 also vitiates
the ultimate conclusionof the High Court in convicting accused No.1 and the
accused No.1 is entitled to get benefit ofdoubt . Mrs.Amreshwari, learned
senior counselappearing for the state on theother hand contended that when two
courts of facthave already appreciated the evidence and have recorded their
conclusion to the effect that the prosecution has been able to establish the
charges againstaccusedno. 1 and 2 beyond reasonable doubt it would not beproper
for thecourt to interfere with thesame conclusion in exerciseof power under
Section 136 of the Constitution more particularlywhen two precious lifehave
been lost. Thelearned counsel also urged that it istrue that prosecution has
not beenable to explain injuries on the accused persons but the said question
has alsobeen considered by the High Court and yetin viewof the clear agent evidenceof
theprosecution witnesses when theHigh court has convicted the two accused
persons. the sameneed not beinterfered with by this Court. According to the learnedcounsel
the substratum of thecase isthat accused No.1 caught hold of Mohan when accused
No.2 stabbed Mohan with the knifeat hisabdomen has been fully established throughthe
several witnesses who themselves havebeen injuredin the Course of incident,and
therefore, the conviction of the twoappellants maintained by theHigh Court need
not be interfered with by this CourtMrs.
Amreshwari,
however, in her ultimate submission statedthat though accusedNo.1 may be
entitled to benefit of doubt by applying the same reasoning and the same
infirmities in the prosecution witnesses on which accused No.3 hadbeen
acquitted, but so far as accusedNo.2 is concerned, conviction being basedupon
clear and cogentevidence the same cannot be interfered with.
Coming
to the questionof non-explanation of the injuries on the accused, it appears
from Exhibit D-6 , Private WoundCertificate the accused appellant No. 1
sustained a lacerated injury of 5x1/2 cmon parietal eminence-clot formed and wasadmitted
in MS III under Neurosurgery ward but discharged against the medical advice and
the said injury is grievous in nature but mighthave been caused byblunt object.
It is also clearfrom Exhibit P-10 issued by Dr. S. Koteswara Rao, Casualty
Medical officerof thehospital at Tirupati that the appellantNo.1 was dischargedfrom
the hospital on 24.4.1990 at 10 p.m. to get
treatment for Neurosurgery care at higher centre. The Doctor (PW-15) in his
evidence stated :
"A-1
was examined by me on the requisition sent by East P.S.
Tirupati
on 23.9.90. TheA-1 was sent to the hospital with an escort of fivepolice
constables. I examined A-1 on 23.3.1990 at 4.45 a.m. As per accident register A-1 told me at that time that he was assaulted
with iron rods, sticks and chains. I found a lacerated injury 5X 1/2 cms. On
right parietal eminence. Blood clot were found. X-ray was also taken. A-1 was
admitted in M.B.3 ward under Neurosurgeon. Theinjury found on A-1 was grievous
and there are 12 and 13 stitches and after the receipt of the said injury to
A-1, heshould have profused bleeding." Exhibit D-11 is the certificategiven
by thesaid Doctor indicating thaton 5.10.1990 the accused - appellant No.1
attended the hospital for sutureremovaland dressing and even on that date the woundwas
notcompletely healed up and according to Doctor. It would take another one
month for healing. The aforesaid injury on accused - appellant No.1 on vital
part of the bodyis undoubtedly a grievous injury and the injured must have profusedbleeding
as stated by PW-15.
The
accused- appellantNo.2 had sustained the following injuries as isapparent from
ExhibitD-7, which was the certificate Issued by PW-15:
"1.
Multiple abrasions with swelling of 2x1 cm. Size over right eye.
2. Rightblack
eye present.
3.
Swelling of right Molar bone present." PW-15 in his evidence alsostated:
"The
samepolicebrought A-2 at 4.45
a.m. and examined him
on police requisition. He identified A-2 Comparing his identification marks.
A-2 also stated before me that he was assaulted with iron rods, chains and sticks.I
found the following injuries on A-2 at that time. I. Swelling of 2x1 cm.
Size
on the right molar bones. 2. A black eyepresent. 3. Swelling in right molar bone.The
injuries are simple innature. Ex.D.7 is the certificate issued in favour of A-
2." The aforesaid injuries on accused - appellant No.2 are undoubtedly
simple in nature. The father of both the accused - appellants,Subramanium also
sustained the following injuries as isapparent from the certificateExhibit D-8
issued by PW-15:- "1. An abrasion of 5 cm. In length over the vault of the
skull.
Red in
colour.
2.
Swelling in left eye brow.
3.
Swelling in upper part of leg.
4.
Abrasion of 6x3 cm. Over left calf muscle.
5.
Abrasion of 7x4 cm. below left calf muscle X-Ray No.1505/14536 of skull AP- Nobony
injury noted.
Hehas
been admitted in MSIII ward under Neurosurgery and discharged against Medical
advice.
The
injury is simple in nature, might have been caused by blunt object and the age isabout
6 hours.
Station
: Tirupati.
Sd/-
20.10.90 20-10-90 (Dr. S. KOTESWARA RAO) CIVILASST. SURGEON S.V.R.R. HOSPITAL,
TIRUPATI." PW-15 also in his evidence reiterated the same by stating:-
"Ifound the following injuries on him. I have examined himat 4.45 a.m. 1. An
abrasion 5cms. In length over the walt of skull, 2.
Swelling
on left eye browpresent.
3.Swelling
of upper part of the left leg.4. Abrasion of 6 x 3 cm.
over
the left calf muscle. 5. An abrasion of 7x4 cms. Below right cough muscles. He
was also admitted ward No.3 in charge of Neurosurgeon. The injuries are simple innature
and the age is about sixhours. 5xD.8 isthe said certificate." The
aforesaid injuries no doubt are simplein nature as opined by PW-15.
The
High Court came to the conclusion that both the accused appellants as well as theirfather
- Subramanium received the injuries in course of the occurrence. The question thatarisesfor
consideration iswhether the prosecution hasofferedany explanationfor such
injuries on the accused- appellants as well as their father and if no
explanation has been offered then forsuch non explanation has been offered then
for suchnon-explanation the prosecution case in anyway gets affected. The law inthis
regard has been well discussed in a judgment of this Court in theCase of
LAKSHMI SINGH AND OTHERS VS. STATE OF BIHAR,(1976) 4SCC 394, It has been held bycourt
in the Aforesaid casethat where theprosecution fails to explain the injuries onthe
accused then two results may follow:- 1. that the evidence of the prosecution
witness is untrue;
and
2. that
the injuriesprobabilise the plea taken by the appellants.
Ithas
also beenheld inthe aforesaid case thatin a case that in a caseof murder
non-explanation of the injuries sustained by the accused at about the time of
the occurrence is a very important circumstance from which the court can draw
the following inferences:
(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 theirevidence is
unreliable;
(3) thatin
case there is a defence version whichexplains the injurieson the person of the accusedit
isrendered probable so as to throw doubt on the prosecution case." Ithas
further been heldthat omission on the part of the prosecutionto explain the injurieson
the person of the accusedassumes much greater importance wherethe evidence
consists of interestedor inimical witnesses. But it is equallywell settled that
the prosecution is not obliged to explain the injuriessustained by the accused
if the injuries are minor and superficial and wherethe injuries are not
sustained in course of the occurrence. On abare examination theinjuries found
on the two appellants aswell as their father - Subramanium, we found that
though the injuries on appellant No.2 aswell asfather - Subramanium were minor
in nature and quite superficial and as such the prosecution was not obliged to
explain thoseinjuries but the injury on appellant No.1 was of such nature that
it cannot go unnoticed bythe witnesses to the occurrencemore so when the
medical evidence is to the effect that there must be profused bleeding. In
respect of such grievous injury sustained by the appellant No.1 the prosecution
is bound to offersome explanation and if explanation is not offered then the
court is entitled to drawinference as held by this Court in the caseof LAKSHMI
SINGH AND OTHERS VS. STATE OF BIHAR referred
to supra, PW-1 who is admittedly an eye-witnessto theoccurrence and was at the
stop right from the beginning, inhis evidence stated: "It is nottrue to saythat
in the incident A-1 and A-2 received bleeding injuries on the head and A-1 sustainedserioushead
injury.
It is
not true to say that at the time of the incident Subramanium - the father of
A-1 and A-2 was present and he received injury on heshead and other parrots of
his body." PW-2 who is also an eye-witness to theoccurrence stated "I
have seen the bleeding injuries on the head of A-1 and A-2 but he said injuries
were caused due tohurlingof stones by A-4 and A-5 from the building." It
was elicited from his cross-examination : "police asked me as to how A-1
and A-2 got bleeding injuries and 1 did not state to the police at that time
that A-1 and A-2 received bleeding injuries due to hurlingof stones by A-4 and
A-5". PW-3 who isalso aneye- witnessto theoccurrence didnot state anything
about the injuries beingsustained by A-1 and A-2 and howsuch injuries were
sustained. PW-6 is also an eye-witness to the occurrence andwas himself also
one ofthe injured. Healso in hisevidence stated that there were no injuries on
A-1 and A-2 at the timeof occurrence and further he states that he does not
knowwhetherA-1 andA-2 andtheir father were admitted to the hospital by the
Police. PW-7 is also an witnessto theoccurrence andhe stated inhis evidence
that at the time of occurrence there wereno bleeding injuries on the head of
A-1 and A-2. PW-8 is equally a witnessto the occurrence and he no doubt had
stated that he had marked thebleeding injuries on the head of A-1 and A-2 but
did not state asto how accused A-1 and A-2 sustained those injuries.PW-10
though was examined by the prosecution but did not support the prosecution and
therefore was permitted bythe court to be cross-examined by the prosecution.
PW-12 is a witness to the assault by accused No.2 on Sekharas well as the
assault on PW-7 by accused No.1. He in hes evidence hasstated : "at the
scene of occurrence didnot see any bleeding injuries on A-1 and A- 2".
Thus, out of theaforesaid 7 eye-witnesses to the occurrence except PW-2and PW-8
rest did not even state to have seen the injuries on the head of thetwo accused
appellants. PW-8 though statedto havesen theinjuries but did not offer explanation
as too howthose injurieswere sustained by the accused appellants. PW-2 though
offered an explanation namely theinjuries are sustained on account of hurlingof
stones by A-4 andA-5 but the High Court on appreciating the evidence came to
the positive conclusion that the prosecution story that A-4 and A-5were hurling
stones is not believable and infact they had not hurled the stones as alleged.
That apart as has been indicated earlier the PW-2 had not stated before thepolicewhile
being examined underSection161 Cr.P.C. about theexistence of injuries on the
head of the accused personsor as to how those injurieswere caused. In the aforesaidcircumstance
the conclusionis irresistiblethat the prosecution has not offered any
explanation for the grievousinjuries on accused-appellant No. 1which the
prosecution was obliged to explainand such omission on the part of the
prosecution to explainthe injuries on accused appellant No.1 assumes greatersignificance
since all the eye-witnesses to the occurrence are related to the deceased and thuswere
interested in the prosecution. In asmuchas PWs 1 and 2 are brothers of deceased
Sekhar, PW-3 is the mother of deceased Sekhar,PWs 6 and 7 are brothers of
deceased Mohan, PW-8 is the brother-in-law of Mohan and PW-12is the elder
brother of Mohan. In the aforesaid premises,we findconsiderable force in the submissionof
Mr. Parasaran, the learned senior counsel for the appellants, that prosecution
has not explained the grievousinjuryon thehead of accused - appellant No.1 and suchnon-explanationpersuades
us todraw an inference that the prosecution has not presented thetrue versionat
least so far as the role played by accused appellant No.1and thewitnesses who
have beenexamined and who have ascribed a positive role to the appellant No.1that
he caught holdof Mohan whenappellant No.2 stabbed Mohan are not true on
material point and their evidence thus has become vulnerable. Even though the
accused-appellantNo.2 also sustainedsome injuries as indicated earlier but
those injuries beingsimple and superficialthe prosecution may not beobligedto
offer the explanation to thesame but the same principlewill have no application
whenan injury of such grievous nature as was sustainedby accused-appellant No.1
had not been explained by the prosecution witnesses who are grossly interestedin
the prosecution being all related to one another.
Atthis
stage it would beproper for us to; notice the contention advanced byMrs. Amreshwari,
the learned senior counsel appearing for the State that the prosecution evidence
having been scrutinised by the learned sessions Judge and the High Court and
having been accepted by the two courts below it wouldnot beproperfor this Court
to interfere withthe convictionin exercise ofpowers under Article136 ofthe
Constitution. We,however, are unable to persuade ourselves to agreewith the
submission wince we are not appreciating the evidence inthis case but we are
only applying a principle ofcriminal jurisprudence which casts an obligation on
the prosecution toexplain the injuries on the accused particularly when theinjuries
are of grievous nature and theconsequences of suchnon- explanation ofthe
injury. That apartin appropriate cases there is no bar on thepowers of this
Court even to examine the evidence if the appreciation of such evidence by the
Courts below on the face of it appears to be erroneous and such erroneousappreciation
causes miscarriage of justice, However, we are not delving further into the
question since we arenot appreciating the evidencein the case in hand.
The
High Courtin ouropinion committed gross error in comingto the conclusion that
non-explanation of the injuries on A-1 is not material. Thevery approach of the
High Court that since police did not confront the witnesses about the accused
receiving injuries while examiningthem under Section 161 Cr.P.C., no
explanation is forthcoming is erroneous.
Itwould
also appear fromthe materials on recordthat though according to the
eye-witnesses the incident occurred in front of the houseof accused No.3 where
both deceased Mohan and Sekhar werestabbedby accused No.2 and while taking the
injured persons Mohan felldown infront of the house of Prabhakar asa result of
which bloodfell down in front of the house ofPrabhakar. yetit is difficult to imagineas
to how blood stainswere found fromthe house of Prabhakar uptothe house of Venkat
Reddy as has been stated by PW-2 and PW-22 oneof theinvestigating officers and
according to the said PW-22 thedistance between Prabhakar's house and Venkat
Reddy's house is more than 120feet. Though Mohan and Sekhar werestabbedin front
of the house of accusedNo.3 as stated by the prosecution witnesses but blood
stains being available upto the house ofPrabhakar is explained fromthe fact
that the injured personswere carriedupto that placebut beyond thatit is no body'scase
that the injured persons werecarried any further and as such no explanation is
forthcoming as to howblood stains could be found upto theVerandaof the house ofVenkat
Reddy and then bloodstained stoneswere also recovered from the Verandaof said Venkat
Reddy.This feature also indicates that the prosecution witnessesare notsure asto
where the occurrence tookplace. It also appearedfrom the evidence of PW-2 and
PW-8 that there were several other people who witnessed the occurrence and they
arenot theresidents of that locality.If suchindependent witnesses were
available and yet were not examined by the prosecution and only those personswho
are related to the deceased were examinedthen in such a situation the
prosecution case has to be scrutinised with more care and caution.Further Mr. Parasaran
is right inhis submissionthat the witnesses ascribed the role of caching hold
of Mohan byaccusedNo.1 and role of caching hold of Sekhar byaccusedNo.3 and the
High Court gave the benefit to accused No. 3 since the witnesses had not
narrated the same to thepolicewhen examination under Section 161 Cr.P.C. took
place and therefore the self sameinfirmities having crept in when the
prosecution witness stated about catching hold of Mohan by accusedNo.1, the
said accused No.1 is entitled to the benefitof doubt. In fact as stated earlier
Mrs. Amreshwari, the learned senior counsel appearing for the Statealso fairly
stated that possibly it would bedifficult to sustain the convictionof accused
No.1 when the accused No. 3 has hot benefit andhas been acquitted and no appeal
against the said order of acquittal has been filed by the State. On accountof
such infirmities in that prosecution case as indicated above and more particularlywhen
the prosecution has failed to offerany explanation for the grievous injuries
sustained by accused No.1 on his headand theHigh Court has already found that
the saidinjury was caused in course of the incident, we have no hesitationto heldthat
the accused-appellant No. 1 D.V. Shanmugam is entitled to the benefit ofdoubt
and weaccordingly set aside the conviction and sentenceof the said accused-
appellant No. 1 both under Section 302/34 IPCas wellas under Section 324 IPC
and directthat heshall be set atlibertyforthwith if his detention is not required
in any other case.
But comingto
the case of appellant No.2 the same stand on a slightly different footing. Mr. Parasaranno
doubt had argued with vehemence that the entire case mustbe discarded in asmuchas
the prosecution has notpresented thetrue versionand has suppressed the genesis
and origin of the occurrence which inference is tobe drawn fornon- explanation
of the injuries on the accused person. But as we found that theinjuries on the
accused-appellant No.2 are all simple andsuperficial in nature and the
Prosecution is not bound to explain such minor and superficial injuries.
That
apart where the evidenceis absolutely, clear, cogent and consistent coming from
an independent source that it far outweighs the effect of the omissionon thepart
of the prosecution toexplainthe injuries onthe accused, insuch a casea
conviction can be based notwithstanding injury is not being explained as has
been heldby thiscourt in the which Mr. Parasaran, the learned senior counsel
placed reliance upon.So faras the substratum of the prosecution case of accused
- appellant No.2 is concerned it hasbeen consistently stated by all the
eye-witnesses to the occurrence that accused No. 2stabbedMohan on his abdomen
with the knifeand stabbed Sekhar also on theabdomenwith the knife. Their
evidence also gets corroborated from the medicalevidence as well as from the
post-mortem examination of thedead bodies of the two deceasedpersons. Even in
the earliest version, in the FIRit had been categorically stated that accused
No.2 D. VaidvelustabbedMohan with a knife on his abdomen and alsostabbedSekhar
with Knife on his stomach andintestine came out. In view of the aforesaid
clinching evidence so for as the role ascribedto accused - appellant No. 2,
notwithstanding the infirmities indicated earlierfor which we have given
benefit of doubt to accused - appellant No. 1, itmust be heldthat the
prosecution case as against the appellantNo.2 has been proved beyond reasonable
doubt and therefore the convictionand sentence againstthe said accused - appellant
No.2 as affirmed by the High Court does not warrant any interference by this
court.
In thenet
result, theconviction and sentenceof appellant No.1 -D.V. Shanmugam passed by
the High Courtis set aside and heis acquitted of the charges. He be set at liberty
forthwith unless required in any other criminal case but conviction andsentence
as against appellant No.2 passed by the bythe High Court stands affirmed and
the appeal so far as A-2is concerned isdismissed. Thisappeal is allowed in
part.
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