Counter-claim filed by injured defendant should be dealt with concurrently with that of injured plaintiff: Madras High Court


Observing serious irregularities in the witness statements and the police investigation, the Madras High Court acquitted five persons, the first of whom was convicted of the offense of culpable homicide not amounting to murder under the article 304 of the CPI.

The bench of Justice AD ​​Jagadish Chandira noted that there are contradictions in the versions of prosecution witnesses regarding the number of defendants and the specific weapons used by the defendant in attacking the deceased and others.

In addition to this, the police chose to investigate the two cases separately although an FIR was filed against the deceased and a few prosecution witnesses by the accused in the same event.

The court also came to the conclusion that the FIR numbers in the defendant’s and prosecution’s cases had been altered to provide an unfair advantage to the prosecution, projecting it as a registered FIR before that of the defendants’ FIR. The FIR recorded on the basis of the defendants’ complaint was also deleted by investigators and the prosecution. In addition, the court also took note of the delay of more than six hours in the transmission of the FIR to the Magistrate even though the distance between the police station and the residence of the Magistrate was less than thirty minutes.

The High Court relied on a recent judgment of the Supreme Court in Arvind Kumar @ Nemichand and others against State of Rajasthan, LL (LiveLaw) 2021 SC 286, which held that a fair inquiry would become a “colorable” inquiry when there is suppression of facts. Therefore, the court held that:

“…in light of the decision cited above, this court must come to a compelling conclusion that the genesis of the event was suppressed by the prosecution and that the prosecution witnesses attempted to paint a different color to the event without explaining the injuries sustained by the defendants in the same event and the criminal charges brought by them and therefore the prosecution has failed to prove its case beyond a reasonable doubt and it is shrouded in a cloud of doubt and the benefit of that doubt should be given to the appellants/accused…”

The court concluded that the trial court had incorrectly assessed the evidence available in the record and that the conviction of the appellants was based on erroneous grounds. Therefore, the court acquitted the five defendants who were charged with offenses under Articles 147, 148, 341, 294B, 321, 307 and 302 of the ICC. The trial court convicted Accused No. 1 (A1) of offenses under Sections 304(i)IPC and the other four accused under Sections 323 and 324 IPC.

While allowing the criminal appeal under Article 374(2) of the CrPC, the court observed that there had been a deliberately flawed investigation and conscious suppression of facts in the present case, similar to Arvind Kumar.

According to the Tamil Nadu Police Standing Order No. 588A and the Supreme Court Orders, the investigation of the two cases i.e. the prosecution and the case of the accused regarding the injuries sustained in the same event, must be conducted simultaneously by the same investigator and both reports submitted thereafter. However, the court observed the following regarding the conduct of the police officers:

“However, in the present case, the complaint lodged by the accused was dealt with separately, without following the above guidelines and for reasons best known to them, the investigating police officers had suppressed a such a complaint filed by the defendants and the witnesses for the prosecution, including these police officers, had pleaded ignorance of them, which speaks volumes about the investigation conducted in a biased manner.”

The court categorically found that it was the same doctor who was PW 12 who had examined both the defendant who sustained the injuries as well as the deceased victim and prosecution witnesses at 3 a.m. and 3 a.m. respectively on actual day. Despite this, said fact was stifled by the investigation, notes the court. After betting on Babu Ram and others v. state of punjab(2008) 3 SCC 709 & Kumar v. State represented by a police inspector in the given factual context, (2018) 7 SCC 356, the court notes the following:

“…the same was removed by the inquest and thus it is proven that the accused also suffered injuries in the event, however, this was ably left to the prosecution and the injured/victims in the prosecution also pleaded ignorance of the same. Police Sub-Inspector PW14, who was aware of the accused’s complaint, also remained silent and pleaded ignorance of it. Furthermore, this court requested the original FIRs in both cases and it is clear that the crime figures were corrected and manipulated to project that the FIR in the present case was prior.”

The case arose out of a scuffle between the defendants and prosecution witnesses as well as the deceased. The quarrel between the parties is attributed to one of the daughters of the defendant’s family who fled with another person with the help of the deceased. The altercation and the fight took place on 25.3.2013 around 11:00 p.m. The complaint was filed by one of the prosecution witnesses on March 26, 2013 at 5 a.m., but it did not reach court until 11:30 p.m. that day with a delay of more than 6 hours.

Regarding the delay in forwarding the FIR to the Magistrate without satisfactory reasons, the court relied on the SC judgment in Rajeevan and another v. State of Kerala (2003) to establish that it may adversely affect the prosecution case and raise suspicions about the circumstances surrounding the case.

“…There is also a contradiction in the version of the prosecution witnesses with regard to the weapons which would have been used by the defendants to attack them. They had declared before doctor PW12 that they had been attacked by 20 people known weapons of soda. Bottles, Beer Bottles, knife and wooden logs while, the MOs produced are only Bamboo Sticks and only five defendants are involved in the case”, the court observed the contradiction in the versions of the prosecution witnesses.

The appellants mainly argued that the genesis of the event came from the side of the injured prosecution witnesses. Without explaining the injuries sustained by the defendants and the criminal charges brought by them, the Crown deleted this cause of action and the fact that it is a record and a counter-record. The defense also argued that there was manipulation of the Crime Numbers in both cases to show that the complaint filed by the de facto plaintiff in the present case predates the complaint filed by the accused.

Case title: V. Subramanian & Ors. v. State

Case no: Criminal Appeal #4 of 2019

Citation: 2022 LiveLaw (Mad) 45

Click here to read/download the order


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