Friday, 2 December 2016

Whether magistrate can commit counter case to session court even though it is not triable by session court?

To sum up the legal issues involved in the case:-
        (i) No Court of Sessions shall take cognizance of any offence unless
the case has been committed to it by the jurisdictional Magistrate.
        (ii) The Court of Sessions has no power to direct a Magistrate to
commit any case to his file nor can a Court of Sessions withdraw a case from
a Magistrate to his file.
        (iii) If any of the offences in a given case is exclusively triable by
a Court of Sessions then, the legal duty of the Magistrate is to commit the
case to the Court of Sessions for trial as provided inSection 209 of Cr.P.C.
        (iv) In cross cases, where one of the cases involves offences
exclusively triable by a Court of Sessions and in the other case none of the
offence is exclusively triable by a Court of Sessions, then, as provided
in Section 323 of Cr.P.C. the jurisdictional Magistrate should commit both
the cases for trial to the Court of Sessions.
        (v) On such committal of cross cases arising out of the same
occurrence, the Sessions Court shall scrupulously follow the procedure laid
down by the Hon'ble Supreme Court in Nathi Lal v. State of U.P., 1990 Supp.
SCC 145. 
        (vi) In any other case involving offences which are not exclusively
triable by a Court of Sessions and if it appears to the jurisdictional
Magistrate that for any of the grounds enumerated underSection 407 (1)
of Cr.P.C. that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report
the High Court may order for committal of such case to the Court of Sessions
for trial and thereupon on committal, the Sessions Court shall try the same
as per Chapter XVIII of the Code of Criminal Procedure.
        (vii) In any event, the trial court shall not record common evidence or
substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
        (viii) In no case, the trial court shall deliver a common judgement in
two or more cases [vide Nathi Lal's case cited supra].
        (ix) In respect of the cases where trial has not already commenced
before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else,
the court shall follow the dictum laid down in State of Madhya Pradesh v.
Bhooraji and others, 2001 Cri.L.J. 4228 (1).
     (x) In respect of cross cases, for each case there has to be a separate
public prosecutor to conduct the prosecution.?
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2015
CORAM
 MR.JUSTICE A.SELVAM
and
 MR.JUSTICE T.MATHIVANAN

CRIMINAL APPEAL(MD)Nos.16 OF 2012
and 87 of 2012


R.Velladurai Vs.State 
Citation:2016 CRLJ3985 Madras



        The Appellants in Crl.A.(MD) No.87 of 2012 are the Accused 1 and 2 and
the Appellants in Crl.A.(MD) No.16 of 2012 are the Accused 3 and 4 in
S.C.No.302 of 2010 on the file of the learned Additional Sessions Judge, Fast
Track Court No.II, Tirunelveli. Totally, there were six accused in the case,
including the appellants herein.  The Trial Court framed as many as ten (10)
charges as detailed below:-
        
Charge Number  
Charge(s)
Against Accused  
Charge(s) framed under Penal provision
1
A1 to A6 
120(B) of IPC
2
A1 to A6 
148 of IPC
3
A1 and A2 
302 
4
A3 to A6 
302 r/w 149 of IPC
5
A1 
307 of IPC
6
A2 to A6 
307 r/w 149 of IPC
7
A3 
307 of IPC
8
A1, A2 and A4 to A6 
307 r/w 149 of IPC
9
A4 
302 of IPC
10
A1, A3, A5 and A6 
302 r/w 149 of IPC
The accused denied the charges. After full trial, by judgement dated
25.01.2012,  the learned Additional Sessions Judge, convicted A1 to A4 alone
as detailed below:-

Sl.No.
Rank of the Accused who was/were found guilty 
Convicted under
Sentenced to 
1
A1 
302 of IPC
Imprisonment for Life and to pay a fine of Rs.10,000/- in default to undergo
Rigorous Imprisonment for further six months
2
A2 
302 of IPC
Imprisonment for Life and to pay a fine of Rs.10,000/- and in default to
undergo Rigorous Imprisonment for further six months
3
A3 
307 of IPC
Rigorous Imprisonment for 3 (Three) years and to pay a fine of Rs.5,000/- and
in default to undergo Rigorous Imprisonment for further 3 (Three) months.
4
A4 
304 of IPC
Rigorous Imprisonment for 3 (Three) years and to pay a fine of Rs.5,000/- and
in default to undergo Rigorous Imprisonment for further 3 (Three) months.

The learned Additional Sessions Judge by the said judgement acquitted the
Appellants from the other charges and acquitted A5 & A6 from all the charges.
Challenging the said conviction and sentence recorded as against A1 to A4,
they are now before this court with these criminal appeals.

        2. The case of the prosecution in brief is as follows:-
        Two persons by name Sivakumar (herein after referred to as ?D1?) and
Mrs.Thilagam (hereinafter referred to as ?D2?) died on account of homicidal
violence in the occurrence that took place at 08.00 p.m. on 29.11.2008.
P.W.1 is the wife of D1 and P.W.2 and  P.W.3 are the family members of D1 and 
D2. They were all residing at Rajapandi Village in Tirunelveli District.  All
the six accused were also the residents of the same village.  A2 is the son-
in-law of A1. One Mr.Arumugasamy was the then Panchayat Board President of   
the said Village. According to the prosecution, a piece of land, comprised in
Survey No.21/13 in the same village was in the possession and enjoyment of
the deceased Sivakumar (D1) for about 40 years. Mr.Arumugasamy, however,   
decided to establish a children's park on the said land claiming that D1 had
no right whatsoever over the said land. The accused are the supporters of
Arumugasamy. D1 and his family members opposed the said move. This has    
resulted in enmity between the two groups.

        2.1. About seven months prior to this occurrence, A5 was brutally
attacked by the deceased and his brother Senthilkumar, due to the said
enmity. On a complaint made by A5, a case was registered against them and on  
a final report filed against them, the case was ultimately pending trial
before the learned Assistant Sessions Judge at Tenkasi. Subsequently, it is
alleged that A1 had attacked Senthilkumar on account of the above said
motive. There was a complaint made against A1 by Senthilkumar, upon which  
also a case was registered. Thus, the two families were inimical towards each
other on account of the above incidents.

        2.2. It is further alleged that on 26.11.2008 at about 04.00 PM, A1 to
A6 had gathered in Chokkanatchi Amman Temple Mandapam and conspired together      
to do away with D1.

        2.3. It is further alleged that in pursuance of the said conspiracy, on
29.11.2008, at about 08.00 p.m.  Sivakumar (D1) and his wife (PW1) were
standing in a lane near Sandhu Murugan Temple. It is alleged that at that
time, all the six accused emerged there, each one armed with an aruval. On
seeing them approaching D1, P.W.1 raised alarm. On hearing the same, P.W.2   
and P.W.3 and Mrs.Thilagam (D2) arrived at the place of occurrence.
Immediately the accused started mounting attack on them. A1 and A2 cut D1  
with aruval indiscriminately and he died instantaneously. When P.W.1
intervened, it is alleged that A1 made an attempt to commit murder of P.W.1
by cutting her with aruval twice. When P.W.3 intervened, A3 cut him with
aruval in an attempt to kill him.  A4 cut D2 with aruval indiscriminately.
She also fell down with injuries. On hearing the alarm raised by all of them,
the neighbours rushed to the place of occurrence.  On seeing them, the
accused fled away from the scene of occurrence with the weapons. 

        2.4. Then, all the injured, including D1 were rushed to the Government
Hospital at Tenkasi. At 09.15 PM, P.W.14 Dr.Rameswari, who was on duty,  
examined Mrs.Thilagam (D2) and found the following injuries:-
        "(1) A cut injury on scalp 12 c.m. Skull seen,
        (2) A cut injury over the right cheek, ear (NC) with cheek  below upto
mandible region".

EX.P.9 is the copy of the Accident Register. She referred D1 to Tirunelveli
Government Medical College Hospital.  At 09.20 p.m., she examined P.W.3  
Arumugam and found two external injuries,
        "(1) A cut injury 1 c.m. near left side of lip extending upto back of
left ear, muscle seen (NC) and
        (2) Neck injury".
Ex.P.10 is the copy of the Accident Register.  She referred P.W.3 to
Tirunelveli Government Medical College Hospital for further treatment.  At
about 11.50 PM, she examined P.W.1 - Mrs.Amutha and found the following  
injuries:-
        "(1) A cut injury over the middle of right thumb,
        (2) A cut injury over the middle of left thumb".
EX.P.11 is the copy of the Accident Register.  According to P.W.14, all these
injuries were simple in nature and such injuries would have been caused by
cut with aruval.
        
        2.5. On the same day, at 11.50 PM, she examined Mr.Sivakumar (D1). On   
examination, she found him dead. She found the following injuries on the body
of D1:-
        "(1)    Multiple cut injuries over the occipital region. Brain exposed.
        (2)     A cut injury from root of nose to 1 c.m. about the left ear.
        (3) A cut injury above (2)
        (4) A cut injury over the nose. A piece of tissue absent.
        (5) A cut injury over the right wrist.
        (6) Fracture M/3 of right arm.
        (7) A cut injury from chin to neck. Deep structures exposed.
        (8) A cut injury from palm to dorsum of left hand, trachea seen.
        (9) A cut injury over front of neck.
        (10) Abrasion over the left knee 1 c.m. X 1 c.m".
EX.P.12 is the copy of the Accident Register.  P.W.14 forwarded the body of
D1 for postmortem to mortuary.  She also gave intimation to the police
regarding the above.

        2.6. On getting intimation from the hospital, P.W.29 - the then Sub-
Inspector of Police at V.K.Pudur Police Station, rushed to Tirunelveli
Government Medical College Hospital at 12.45 AM. On 30.11.2008.  She recorded  
the statement of P.W.1. On returning to the police station, she registered a
case in Crime No.101 of 2008 under Sections 324, 307, 302 and 120(B) of IPC.
EX.P.1 is the statement (complaint) of P.W.1 and EX.P.32 is the First
Information Report. She forwarded both the Complaint and the First
Information Report to the Court and handed over the case diary to the
Inspector of Police.

        2.7. P.W.30, who took up the case for investigation, visited the place
of occurrence at 04.15 AM on  30.11.2008.  He prepared an observation mahazar 
(EX.P.34) and a rough sketch (EX.P.35) at the place of occurrence in the
presence of P.W.5 and yet another witness. He also recovered bloodstained
earth and sample earth from the place of occurrence under a mahazar in the
presence of the same witnesses. At about 08.00 AM, in the mortuary of the
Tirunelveli Government Medical College Hospital, he conducted inquest on the
body of D1 and then, forwarded the body for postmortem.

        2.8. P.W.19 conducted autopsy on the body of D1, on 30.11.2008, at 
about 11.40 AM. She found the following injuries:-
        "(1) A deep lacerated wound in front of neck right side 20 x 20 x
vertebra depth. 
        (2) A lacerated wound over right side of jaw along with lower border of
mandible 15 x 15 x trachea exposed and cut over trachea.
        (3) A lacerated wound over left side of forehand extend from left
eyebrow to ear 15 x 15 x 5 cm.
        (4) A lacerated wound just above preview left forehead 15 x 15 x 5 cm.
        (5) Laceration over tip of nose 5 x 5 x 5 cm.
        (6) Lacerated wound over right wrist 5 x 5 x 5 cm.
        (7) Lacerated wound over left palm extend from hypothenar to (n.c) all
carpal bone fracture size 15 x 10 x 5 cm.
        (8) Lacerated wound over left eye, eyeball ruptured.
        (9) Abrasion over left infra (n.c.) region 5 x 5 cm.
        (10)Lacerated wound over scalp extend from frontal lobe to occipital
lobe 25 x 10 x brain matter exposed.
        (11) Lacerated wound over skull in between two temporal bone 15 x 10 x
brain exposed.
        (12)Lacerated wound parallel to (10) 15 x 10 x brain exposed.   
        (13)Lacerated wound over right supra (n.c.) right arm (n.c.) fracture
humour present right side.
        (14)Lacerated wound over right shoulder 10 x 5 x 5 cm size.
        (15)Lacerated would over left shoulder 5 x 1 x 1 cm size.
        (16)Lacerated wound on left scapular just below (n.c.)".

EXP-15 is the Postmortem Certificate.  She gave opinion that the deceased
would appear to have died of multiple injuries to vital organs and
haemorrhagic shock. 
        
        2.9. During the course of investigation, on the same day, P.W.30, the
Inspector of Police, examined the injured witnesses including Mrs.Thilagam
(D2) and recovered clothes of the injured persons which they were wearing at
the time of occurrence.  On 01.12.2008, at 10.30 a.m., he arrested A1 in the
presence of P.W.6 and P.W.7. On such arrest, A1 gave a voluntary confession,
in which he disclosed the place, where he had hidden four aruvals.  In
pursuance of the same, A1 led PW.30, P.W.6 and P.W.7 to his house and   
produced four aruvals from the hideout.  P.W.13 recovered the same under a
mahazar (Ex.P.38).  M.O.10 to M.O.13 are the said aruvals produced by A1. 
Then, P.W.30 prepared an observation mahazar (Ex.P.39) and rough sketch  
(Ex.P.40) showing the place where the accused had hatched conspiracy to 
commit the murder of the deceased. During the course of investigation, he
recorded the statement of Mrs.Thilagam (D2) under Section 161 of Cr.P.C. and
the same is Ex.P.41.  P.W.1 to P.W.3 and the deceased Mrs.Thilagam (D2) under   
went treatment in Tirunelveli Government Medical College Hospital. P.W.1 and
P.W.3 were discharged from the hospital.

        2.10. Mrs.Thilagam (D2) got discharged from the hospital, at her own
will against the medical advise on 24.12.2008.  She died on 04.02.2009.
P.W.30 conducted inquest on the body of D2 between 08.15 and 08.30 a.m. on  
04.02.2009 and forwarded the body for post-mortem to Tirunelveli Government
Medical College Hospital.  P.W.20 Dr.Selvamurugan conducted autopsy on the  
body of D1 on 04.02.009 at 12.05 PM. He found the following injuries:-
        ?(1) A linear scar of length 19 cm seen over left temperoparietal
region.
        (2) A partly healed wound of size 7 x 2 cm over right cheek.
        (3) An abrasion size 5 x 4 cm over left knee.
        (4) Bed sore of size 7 x 5 cm over right gluteal region.
        (5) On dissection of head: cut fracture of length 12 cm over left
temperoparietal region, underlying duramater shows a 12 cm length cut and
left temporal and parietal lobes of brain shows a linear cut injury of length
12 cm with pus, c/s pale.?
EX.P.17 is the postmortem certificate. PW.20 opined that the deceased would
appear to have died of complications of heavy cut injuries to head.
        2.11. In continuation of his investigation, P.W.30 the Inspector of
Police, recovered clothes of D-2. He examined few more witnesses and on
20.03.2009, he handed over the case diary to his successor, as he was
transferred.

        2.12. P.W.31, took up the case for further investigation, examined the
Doctors, collected the medical records and filed final report against all the
six accused on 27.07.2009 for offences punishable under Sections 324, 307,
302 and 120(B) of IPC before the Judicial Magistrate at Shencottah.

        2.13. Based on the above materials, the trial court framed charges
against the accused as detailed in the first paragraph of this Judgement. The
accused had denied the same. In order to prove the case, the prosecution has
examined as many as 31 witnesses and marked 46 documents and produced 18      
materials objects. Out of the said witnesses, P.W.1 to P.W.3 are the injured
eye-witnesses, who have vividly spoken about the entire occurrence.  They
have spoken about the motive also. P.W.1 has spoken about the conspiracy as 
well. P.W.4 has stated that he took all the injured, including the deceased,
to the Government Hospital at Tenkasi for treatment.  P.W.5 has spoken about
the preparation of observation mahazar and rough sketch and also the recovery
of blood stained earth and sample earth from the place of occurrence.

        2.14. P.W.6 and P.W.7 have turned hostile and they have not at all
supported the case of the prosecution in any manner.  These witnesses have
been examined to speak about the arrest of the accused and the alleged
confession made by A1 and the consequential recovery of the aruvals. P.W.8 to
P.W.9 have also turned hostile and they have not at all supported the case of
the prosecution in any manner.  P.W.11 is the Clerk of the Panchayat
concerned and he has stated that in respect of the disputed land there was a
request made by the panchayat also to the Tahsildar concerned to measure the 
property and to identify the land belonging to the panchayat.  P.W.12 is the
Block Development Officer, Keezhapavur Veerapandipuram and he has stated that  
for the purpose of children's park in S.No.21/13 at Rajapandi Village, the
panchayat union gave approval for panchayat.  P.W.13, an official from the
Tamil Nadu Electricity Board (TNEB) has stated that there was no electricity
failure at the place of occurrence on the day of occurrence.  P.W.14 -
Dr.Rameswari has spoken about the examination of P.W.1 to P.W.4 at Government    
Hospital at Tenkasi and the injuries noted down by her. She has further
stated that she declared D1 dead in the hospital.

        2.15. P.W.14, 16, 17 and 18 have spoken about the treatment given to
the injured persons. P.W.19 has spoken about the post-mortem conducted by him  
on the body of D1 and the final opinion regarding the cause of death.  P.W.20
has spoken about the postmortem conducted on the body of D2 and the final 
opinion regarding the cause of death.  P.W.21 is the Head clerk of the Court
of the Judicial Magistrate, who has stated that he forwarded the material
objects for chemical examination on the orders of the learned Judicial
Magistrate.  Ex.P.20 is the chemical analysis report and Ex.P.21 is the
serology report.  According to these reports, human blood was found on all
the material objects, except the billhook.

        2.16. P.W.22 has spoken about the fact that he carried the dead body of
D1 to the hospital for postmortem. P.W.23 has spoken about the investigation
done by him in the case relating to the motive occurrence.  P.W.24 has also
spoken about the same fact.  P.W.25 has turned hostile and he has not
supported the case of the prosecution in any manner. P.W.26 is the Branch
Manager of Tamil Nadu State Transport Corporation at Tirunelveli Depot, where
A6  was working. According to him, on 29.11.2008 A6 was on leave. P.W.27 has  
spoken about the fact that the he carried the First Information Report and
the complaint from the police station on 30.11.2008 at 04.00 AM and handed
over the same to the learned Judicial Magistrate at Shencottah at 07.30 AM.
P.W.28 has spoken about the fact that he carried the dead body of D1 and
handed over the same for postmortem. P.W.29 has spoken about the registration 
of the case on the complaint of P.W.1.  P.W.30 and P.W.30 have spoken about  
the investigation done by them and the final report filed.

        2.17. When the above incriminating materials were put to the accused,
they denied the same as false. On the side of the accused, one Mr.Iyyappan
was examined as D.W.1. According to D.W.1, he was working as a over-head tank   
operator at Rajapandi Village during the relevant time. He has stated that on
29.11.2008 between 07.00 and 08.00 p.m. he was not able to operate the
electric motor since there was no electricity  supply. Before the trial
court, the documents relating to the land in question maintained at Rajapandi
Village Panchayat were marked as EX-C1 to EX-C4.  The defence of the accused  
was a total denial.
        
        2.18. Having considered all the above materials, the trial Court
convicted A1, A2, A3 and A4 alone as detailed in the first paragraph of the
judgement. That is how, they are now before this court with these Criminal
Appeals. 

        3. We have heard the learned counsel appearing for the appellants and
the learned Additional Public Prosecutor appearing for the State. We have
also perused the records carefully.

        4. The learned counsel appearing for the appellants would submit that
it is in evidence that in the same occurrence, A2 also sustained injuries at
the hands of the prosecution parties. He sustained serious injuries on the
vital parts of his body, out of which one injury was a grievous hurt.  He
would further submit that A2 was taken to the hospital immediately where he
was admitted as inpatient and he underwent treatment for a long time.  On a
complaint made by A2, a counter case was registered in Crime No.102 of 2008 
for alleged offences under Sections 307, 324 and 120(B) of IPC at 06.00 AM.
The learned counsel would further point out that in the said complaint  A2
had alleged that he was attacked by four persons including D1. The learned
counsel would further point out that the truth of the said allegations were
verified by the Investigating Officer and since he found that the allegations
were true, he filed final report in that counter case against the deceased
party for the offences punishable under Sections 120(B), 324 and 307 of IPC.
The said case is also pending trial.

        5. The learned counsel would also point out that thus it has been
clearly established that the deceased party were the aggressors. The trial
court has not considered these facts properly, he contended.  He would
further submit that the trial court has miserably failed to conduct the trial
by following the well established procedure for the conduct of trials of case
and counter case.

        6. The learned counsel appearing for the appellants would further
submit that the prosecution has failed to explain the injuries sustained by
A2 and thus, the prosecution has suppressed an important part of the
occurrence.  He would further submit that the prosecution has failed to come
forward with clean hands and therefore, the appellants are entitled for
acquittal.

        7. The learned Additional Public Prosecutor would, however, oppose
these appeals stoutly. According to him, it is true that the case in Crime
No.102 of 2008 is a counter case and that A2 sustained injuries in the same
occurrence.  He would point out that P.W.1 has explained that the injuries
sustained by A2 were at the hands of the other accused when all the accused
cut the deceased and the injured eye-witnesses. Thus, according to him, the
injuries sustained by A2 have been duly explained away.

        8. So far as the case in Crime No.102 of 2008 is concerned, according
to the learned Additional Public Prosecutor, the investigation was done
thoroughly and a final report was also filed. The materials collected during
the said investigation have been produced in the present case as Exs.P.44 and
P.45. Thus, according to him, the prosecution has not at all suppressed any
fact. He would further submit that on appreciating the evidence, the trial
court has rightly found the appellants alone guilty, which does not require
any interference at all at the hands of this court.

        9. We have considered the above submissions carefully.

        10. Before going into the rival submissions made and before commencing
to appreciate the evidence let in by the prosecution as well as the accused
in this case, let us, at the out set, express our displeasure over the way in
which the trial court had conducted the case in gross dereliction of the
fundamental principles relating to procedure for conduct of trials in case
and counter case. We would like to express our dismay over the way in which
the trial court has convicted these appellants. As we have already pointed
out at the first paragraph of this judgement, the first charge framed against
the accused was for conspiracy which, according to the charge, was hatched on
26.11.2008 at about 04.00 PM. The trial court has acquitted all the six
accused from the said charge for want of evidence. Regarding this finding we
cannot express anything against as a perusal of the record would go to show
that absolutely there is no evidence to prove the conspiracy.  Further, the
acquittal of the accused from the charge of conspiracy has become final as no
appeal has been filed by the State.

        11. The second charge against all the six accused was under Section 148
of IPC. The trial court acquitted A5 and A6. Therefore, the trial court was
right in holding that there was no unlawful assembly.  But, the trial court
has found from the evidence that D1 and D2 died of homicidal violence which
happened in the same occurrence.  The trial court found that D1 was done to
death by A1 and A2 and D2 was done to death by A4. A3 also  participated in
the same occurrence  and he caused injuries on P.W.3 in an attempt to commit 
murder. Similarly, the trial court has held A3 guilty under Section 307 of
IPC. But, the trial court curiously has not given any finding in respect of
the injuries sustained by P.W.1 at the hands of A1.  If the evidences of
these witnesses were to be believed, though there was no evidence for
unlawful assembly, certainly, from the very fact that all the accused A1 to
A4 had come to the place of occurrence armed with weapons would go to clearly 
establish that they had common intention to commit the murder of D1 and D2
and injuries on P.Ws.1 to P.W.3.  Unfortunately, the trial court had not
dealt with the same. The trial Court has convicted the accused only for the
individual overt acts for causing injury either on the deceased or on the
injured eye-witnesses.  The judgement of the trial court further goes to
proceed as though for the act of one accused others are not constructively
liable as provided under Section 34 of IPC. We apprehend that the trial court
has not understood the concept of constructive liability as provided in
Section 34 of IPC. Having accepted the evidence of Pws.1 to 3, the trial
court ought to have invoked Section 34 of IPC to convict the accused
appropriately. This is one of the major flaws in the judgement of the trial
court.

        12. The next one is the procedure followed by the Trial Court in
conducting the trial. Admittedly, the second accused sustained injuries in
the same occurrence. EX.P.45 is the Wound Certificate.  The Doctor, who
examined the second accused, found the following injuries on him:-
        ?1. Laceration over left ear (nc) cm x 6 cm bone deep and skull bone
(nc)
        2. Cut injury left dorsal aspect wrist 18 cm x 4 cm x bone deep cutting
vessels and (nc)
        3. (nc) left palm 12 cm x 2 cm
        4. Cut injury left shoulder 6 x 3 x 1 cm (nc) injury right arm lateral
region 15 cm x 4 cm x bone deep cutting the neck? bone fracture.?

According to the opinion of the Doctor, the first injury was grievous in
nature and the others were simple.   In respect of the said occurrence, on
the complaint of the 2nd Accused, the case in Crime No.102 of 2008 was
registered against the prosecution party herein for the alleged offences
under Sections 307, 324 and 120(B) of IPC. The investigation was done in both
the cases and the investigating officer was perhaps unable to decide as to
whether the prosecution party were the aggressors or the accused party were
the aggressors. Therefore, he had chosen to file final reports in both the
cases.  It cannot be said that the procedure adopted by him is illegal.

        13. It is not uncommon that the provision contained in Tamil Nadu
Police Standing Orders ? PSO 588-A is taken handy by the accused before the 
courts of law to get out of the clutches of law by making a prayer that the
failure to follow PSO 588-A is an illegality rendering prosecution vitiated.
As a matter of fact, PSO 588-A was introduced based on certain observations
made by Hon'ble Justice P.N.Ramaswami in Thota Ramakrishnayya, Vs State,    
reported in 1954 MWN (Cr.) 9.

        14. Before proceeding further let us have a quick look into PSO 588-A
which reads thus:-
        "In a complaint and counter complaint arising out of a same
transaction, the investigation Officer has to enquire into both of them and
adopt one or the other of the two courses, namely, (1) to charge the case
where the accused were the aggressors or (2) to refer both the cases if he
finds them untrue. If the Investigation Officer finds that either of the
course is difficult, he should seek the opinion of the Public Prosecutor 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 Form-96
and to seek remedy before the specified Magistrate if he is aggrieved by the
disposal of the case by the police."

        15. After the introduction of PSO 588A, there were number of judgments
out of which one line of thinking was that the failure to follow PSO 588A is
an illegality vitiating the conviction. The other line of thinking was that
PSO 588-A is only a directory and so the question of prejudice is a matter to
be considered on account of the failure to follow PSO 588A. In some cases,
analogy was drawn between PSO 145 and 588A. The Hon'ble Supreme Court in    
State of Andhra Pradesh Vs. Venugopal, reported in AIR 1964 SC  33 held that
PSO 145 is nothing more than administrative instructions and it cannot have
the force of law. In an attempt to distinguish PSO 145 from 588A in order to
get over the judgement of the Hon'ble Supreme Court insofar as PSO 588A is
concerned, it was argued before this court in a number of cases that since
PSO 145 was not marked with asterisk  and it could be safely held that it was
not issued under Section 9 of the Madras District Police Act  whereas PSO
588A has been issued under Section 9 of the Madras District Police Act and
therefore,  PSO 588A has got statutory force. In Vellapandy Thevar v. State,
reported in 1984 LW Cri 257, a learned Judge of this Court held that the
course adopted by the investigating officer without following the procedure
contemplated in Section 588A is not only improper, but also bad in law.  In
Ranganathan V.R. Vs. State (1985 LW Cri 86), the above said judgement in 
Vellapandy Thevar's case was quoted. But, the learned Judge who decided the
Ranganathan's case declined to agree with the reasoning of the former. In
Ranganathan's case the learned Judge held that the police Standing orders
cannot be said to be a statute but only a set of rules framed for the
guidance of the investigating officers and, therefore, a violation of a
standing order in the matter of investigation will not constitute an
illegality. In other words, a defect or an irregularity in investigation,
however serious, had no direct bearing on the competence or the procedure
relating to the cognizance of the trial. The same question again came up for
consideration before yet another  Hon'ble Judge of this court in Justin v.
The State Represented by the Inspector of Police, 1988 LW Cri 467. In that
case again following the view expressed in Vellapandy Thevar's case, it was
held as follows:-
        "The Investigating Officer in this case has evidently contravened the
express provisions of 588A 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 improper, but also bad in law."

        16. In yet another case in Ekambaram v. Sundarmurthy, 1989 (1) Crimes 
458, the same question came up for consideration before yet  another Hon'ble
Judge of this Court. In that case, the learned Judge took a contrary view.

        17. Finally, it came up before Justice Arunachalam sitting single in
V.Karthikeyan and others v. State by S.I. of Police and others, 1992 Crl.L.J.
2948. After having a thorough survey of all the above judgments including the
judgement of the Hon'ble Supreme Court cited supra, the learned Judge in para
17 & 18 has held as follows:-   
        "17. Once this conclusion is arrived at, the judgment of the apex Court
steps in and there could be no difference then between P.S.O. 145 and P.S.O.
588A Chapter II of the Code of Criminal Procedure invests the police with the
statutory rights to receive and record information of the commission of a
cognisable crime and carry on investigation, before a prosecution is
launched. Police Standing Orders cannot override the provision of the Code of
Criminal Procedure. In State of Punjab v. Rajkumar, after considering the
nature and purpose of R. 16.38 of the Punjab Police Rules, the Supreme Court
held :
        "The rules were not intended to replace and cannot certainly override
the provisions of the Criminal Procedure Code. In State of Punjab v. Charan
Singh, 1981 SCC Cri 407 : (1981 Cri LJ 712) it was declared that R. 16.38
cannot govern criminal prosecution, against the members of the police as it
could not override the provisions of the Code of Criminal Procedure. The
Punjab Police Act, under S. 12, made a provision for the Inspector General of
Police, subject to the approval of the State Government to frame such orders
and rules, as stated in the said section, and the Punjab Police Rules were
framed in the exercise of the powers conferred under S. 1 and S. 7 which
dealt with the appointment, dismissal, etc. of inferior officers. This
provision appears akin to S. 9 of the Madras District Police Act. The net
result is that P.S.O. 588A will have to be held as only directory and not
mandatory. P.S.O. 588A is nothing more than administrative instructions and
it cannot have the force of law. The non-following of the procedure
prescribed under P.S.O. 588A will not constitute an illegality to quash the
impugned prosecutions. The law laid down by the Supreme Court, coupled with 
the lack of power under S. 9 of the Tamil Nadu District Police Act to issue
P.S.O. 588A as a statutory mandate, would answer the question involved and
here reference to a Division Bench, does not arise.
        18. Administrative instructions in P.S.O. 588A issued on the basis of
the decision of P. N. Ramaswami, J. in Ramakrishnayya's case, commend   
observance, but merely because the provisions of the order have not been
followed in a particular case by the Investigating Agency, that would not
constitute illegality to quash the prosecutions launched. The decisions
rendered by P. N. Ramaswami, J. in Ramakrishnayya v. State, 1954 MWN Cr 9;   
David Annoussamy, J. in Ekambaram v. Sundaramurthy, 1989 (1) Crimes 458 and    
S. T. Ramalingam, J. in Pandurangan v. State by Inspector of Police,
Thirukazhukundaram, 1987 LW Cri 400 have dealt with the procedure to be 
followed in cases and counter, taken on file either on the basis of two final
reports or one final report and not her private complaint."
        
        18. From the above Judgments, the law now remains well settled that it
is not an illegality to file final report in both the case  and the counter
case. What is to be tested is only the question of prejudice for the accused.

        19. In view of the above well settled position of law in the instant
case at no stretch of imagination it could be held that filing of final
report in both the instant cases would amount to illegality. We hold that the
investigating officer, who was unable to find as to who was the aggressor,
was right in placing all the materials before the Trial Court by way of two
final reports and therefore, it was for the trial court to appreciate the
evidence let in both the cases and to punish the guilty.

        20. Now, we have to examine the proper procedure to be followed while
conducting the trial of both the cases. In this regard, we may also refer to
a judgement of the Hon'ble Supreme Court in Nathi Lal v. State of UP, 1990
(Supp) SCC 145 wherein the Hon'ble Supreme Court has in para 2 has held as 
follows:-       
        ?2.We think that the fair procedure to adopt in a matter like the
present where there are cross cases, is to direct that the same learned Judge
must try both the cross case one after the other. After the recording of
evidence in one case is completed, he must hear the arguments but he must 
reserve the judgment. Thereafter he must proceed to hear the cross case and
after recording all the evidence he must hear the arguments but reserve the
judgment is that case. The same learned Judge must thereafter dispose of the
matters by two separate judgments. In deciding each of the case, he can rely
only on the evidence recorded in that particular case. The evidence recorded
in the cross case cannot be looked into. Nor can the judge be influenced by
whatever is argued in the cross case. Each case must be decided on the basis
of the evidence which has been placed on record in the particular case
without being influenced in any manner by the evidence or arguments urged in
the cross case. But both the judgments must be pronounced by the same learned  
Judge one after the other.?

        21. One of us (JUSTICE S.NAGAMUTHU), while sitting single in Ganesan   
and others v. State  and another, 2011 (5) CTC 747 had occasion to  consider
the similar issue wherein the legal issues have been summed up as follows:-

        ?58. To sum up the legal issues involved in the case:-
        (i) No Court of Sessions shall take cognizance of any offence unless
the case has been committed to it by the jurisdictional Magistrate.
        (ii) The Court of Sessions has no power to direct a Magistrate to
commit any case to his file nor can a Court of Sessions withdraw a case from
a Magistrate to his file.
        (iii) If any of the offences in a given case is exclusively triable by
a Court of Sessions then, the legal duty of the Magistrate is to commit the
case to the Court of Sessions for trial as provided inSection 209 of Cr.P.C.
        (iv) In cross cases, where one of the cases involves offences
exclusively triable by a Court of Sessions and in the other case none of the
offence is exclusively triable by a Court of Sessions, then, as provided
in Section 323 of Cr.P.C. the jurisdictional Magistrate should commit both
the cases for trial to the Court of Sessions.
        (v) On such committal of cross cases arising out of the same
occurrence, the Sessions Court shall scrupulously follow the procedure laid
down by the Hon'ble Supreme Court in Nathi Lal v. State of U.P., 1990 Supp.
SCC 145. 
        (vi) In any other case involving offences which are not exclusively
triable by a Court of Sessions and if it appears to the jurisdictional
Magistrate that for any of the grounds enumerated underSection 407 (1)
of Cr.P.C. that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report
the High Court may order for committal of such case to the Court of Sessions
for trial and thereupon on committal, the Sessions Court shall try the same
as per Chapter XVIII of the Code of Criminal Procedure.
        (vii) In any event, the trial court shall not record common evidence or
substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
        (viii) In no case, the trial court shall deliver a common judgement in
two or more cases [vide Nathi Lal's case cited supra].
        (ix) In respect of the cases where trial has not already commenced
before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else,
the court shall follow the dictum laid down in State of Madhya Pradesh v.
Bhooraji and others, 2001 Cri.L.J. 4228 (1).
     (x) In respect of cross cases, for each case there has to be a separate
public prosecutor to conduct the prosecution.?
        22. In the case on hand, it is unfortunate that the above well
established procedure was not followed by the trial court inasmuch as  the
trial of the counter case in Crime No.102 of 2008 was not done by the same
judge following the procedure enumerated hereinabove.  As a result , the
counter case in Crime No.102 of 2008 is still pending. This may result in
conflict of decisions by two different judges. Precisely, this is what is
sought to be avoided by the procedure stated in Nathi Lal's case, cited
supra, by the Hon'ble Supreme Court. There is no explanation as to why the
said procedure was not followed in the instant case. Neither the Public
Prosecutor nor the defence counsel had appraised the Trial Court about the
above mandatory procedure which should have been followed by the Trial Court.
But, on that score the conviction imposed on the accused cannot be interfered
with.  We only point out that this is a serious irregularity committed by the
trial court and as rightly contended by the learned counsel appearing for the
appellants, this has certainly caused serious prejudice to the accused. We
have every reason to be hopeful that in future at least the courts of law
will follow the above settled procedure while conducting case and counter
case.
        
        23. Now, let us go into the facts of the present case. Admittedly, A2
sustained injuries on the vital part of the body out of which one was a
grievous hurt. According to the learned counsel for the appellants, there was
no explanation offered by the prosecution  for the said injuries. Per contra,
the learned Additional Public Prosecutor would submit that P.W.2 has
explained the injury who has stated that while cutting the prosecution party,
A2 sustained injuries. This explanation cannot be accepted at all going by
the nature of the injury sustained by A2. Therefore, we have to hold that the
injury sustained by A2 has not been explained to the satisfaction of the
Court. What is the impact of the same is the next question.  In Lakshmi Singh
v. State of Bihar,  (1976) 4 SCC 394,  the Hon'ble Supreme Court has held as
follows:-
        ?12. ?  ?       ?       ? 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:
        (1) That the prosecution has sup- pressed 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.?

        24. Applying the same yardstick to the facts of the present case, we
have to hold that the prosecution has suppressed an important part of the
occurrence and thus, it has not come forward with the true version of the
occurrence. The prosecution has not at all examined the Doctor who treated A2
and he failed to produce the other materials collected during the course of
investigation before the trial court.  It is also well-settled that the
materials collected in the counter case are also to be placed so as to enable
the court to appreciate all the evidences collected and to come to the right
conclusion so as to do justice.  But, here, in the instant case, the trial
court has been deprived of the materials collected in the counter case to
appreciate the same.  The prosecution has projected by means of evidence only
one part of the case and has thus suppressed the case of the accused. Though
it is a very sensational case involving the death of two persons, we find it
difficult to sustain the conviction as it is crystal clear that the
prosecution has not come forward with clean hands.

        25. Above all, all the eye-witness have spoken about the role played
by A5 and A6 also. But, the trial court has rejected the evidence of these
eye-witnesses so far as they relate to A5 and A6 are concerned. This would
only go to show that these eye-witnesses are not fully believable. When the
eye-witnesses are not fully believable, the court needs to expect
corroboration from any independent source as held by the Hon'ble Supreme
Court in Vadivel Thevar v. State of Madras, AIR 1957 SC [Crl] 614. Since the
same has also not been done and since there is no corroboration in this case
and also because of the fact that the prosecution has not come forward with
the true version of the occurrence, we hold that the prosecution has failed
to prove the case beyond all reasonable doubts and therefore,  the accused
are entitled for acquittal.

         26. In the result, the Criminal Appeals are allowed and the
conviction and sentence imposed by the trial Court in S.C.No.302 of 2010 by
judgement dated 25.01.2012 against the Appellants/A3, A4, A1 and A2 
respectively are set aside and they are acquitted. The bail bonds, if any,
executed by them shall stand terminated. The fine amount, if any, paid shall
be refunded to the appellants.

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