Madras High Court
Muthusami @ Kumar vs State Represented By on 4 August, 2021
Crl.A.No.207 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.08.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Ms. Justice R.N.MANJULA
Crl.A.No.207 of 2018
Muthusami @ Kumar .. Appellant/Accused
Vs.
State represented by
The Inspector of Police,
Maecheri Police Station,
Salem District.
(Crime No.1003/2013) .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
judgment and order dated 31.08.2017 passed in S.C.No.253 of 2014 on the
file of the I Additional District and Sessions Court, Salem and set aside the
same.
For Appellant : Mr.T.Muruganantham
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
Page 1 of 18
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Crl.A.No.207 of 2018
JUDGMENT
(Delivered by P.N.PRAKASH, J.)
This criminal appeal has been filed against the judgment and order
dated 31.08.2017 passed in S.C.No.253 of 2014 on the file of the I
Additional District and Sessions Court, Salem and to set aside the same.
2. The prosecution story runs thus:
2.1 The deceased Thangam was working as a Watchman in O.K.M.
Blue Metals and Quarries located in Pukkampatti Panchayat, Salem District.
The appellant was employed as a Compressor Operator in the same quarry,
which was owned by Chellamuthu (PW9), who, in turn, has leased it out to
Iyyappan (PW11). Ponnusamy (PW12) had taken a contract of deploying
the compressor for quarry operations.
2.2 While that being so, it is alleged that on 22.08.2013, around
09.00 p.m., the appellant and Thangam were consuming liquor beneath the
conveyor belt of L&T 200 Poclain machine. As they became dizzy, a quarrel
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ensued between them, since Thangam felt that the appellant had not shared
the liquor adequately with him and had consumed a lion's share thereof. In
the quarrel, Thangam is said to have slapped the appellant with chappal.
Infuriated at that, the appellant is said to have banged the head of Thangam
with Poclain machine, due to which, Thangam succumbed to the injuries on
the spot.
2.3 While the appellant was leaving the quarry, he was spotted by
Amudhan (PW2), owner of the neighbouring land. On suspicion, Amudhan
(PW2) and Sivakumar (PW3) questioned the appellant as they found him to
be a stranger. When the appellant was questioned, he gave out his name as
Kumar. On further enquiry, the appellant appears to have told Amudhan
(PW2) that he knows one Kalaivani (PW10), who runs a grocery shop in the
main road.
2.4 Accordingly, Amudhan (PW2) and Sivakumar (PW3) took the
appellant to the grocery shop of Kalaivani (PW10) and when confronted,
Kalaivani (PW10) stated that she knows the appellant as he used to
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Crl.A.No.207 of 2018
purchase cigarettes and bidis off and on. Thereafter, Amudhan (PW2) and
Sivakumar (PW3) left the appellant and returned to their homes.
2.5 On the next day, i.e., 23.08.2013, while Kumar (PW1), who
was employed in the adjoining quarry, and his friend Anbazhagan (PW15)
were going for work, they noticed a person lying beneath the Poclain
machine and informed the villagers of the same. Soon, the local people
gathered and at that time, Amudhan (PW2), Sivakumar (PW3) and
Kalaivani (PW10) seem to have stated the incident that transpired on the
previous night set out supra.
2.6 On the written statement (Ex-P1) given by Kumar (PW1),
Radhakrishnan (PW7), Sub-Inspector of Police, registered a case in
Maecheri Police Station Crime No.1003 of 2013 on 23.08.2013 at 12.00
noon for the offence under Section 302 IPC against the appellant and
prepared the printed FIR (Ex-P13), which reached the jurisdictional
Magistrate on the same day at 03.15 p.m., as could be seen from the
endorsement thereon.
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Crl.A.No.207 of 2018
2.7 It may be pertinent to state here that in column no.7 of the
printed FIR (Ex-P13) viz., 7.Details of Known/Suspected/Unknown accused
with full particulars, it has been recorded in Tamil as “Fkhh; bghl;lndhp
my;yJ ntW ahnuh”(“Kumar, Pottaneri or someone else”).
2.8 Investigation of the case was taken over by Sureshkumar
(PW16), Inspector of Police, who went to the place of occurrence and
prepared the observation mahazar (Ex-P7) and rough sketch (Ex-P19) in the
presence of witnesses Govindaraj (PW5), Village Administrative Officer
(for brevity “V.A.O.”) and Alagappan (not examined).
2.9 From the place of occurrence, the Investigating Officer seized
the following items under the cover of Mahazar (Ex-P8):
i. Bloodstained gravel chips ... M.O.2
ii. Unstained gravel chips ... M.O.3
2.10 Inquest was conducted over the body of Thangam and the
inquest report was marked as (Ex-P20).
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2.11 Thereafter, the body of Thangam was sent to the Government
Mohan Kumaramangalam Medical College Hospital (for brevity
“GMKMC”), Salem, for postmortem, where, Dr.Sangeetha (PW4)
performed autopsy and issued postmortem certificate (Ex-P4).
2.12 In the postmortem certificate (Ex-P4), Dr.Sangeetha (PW4)
observed the following injuries:
i. A) Dark Brown Abrasion over left forehead M-8 x 3.5 cms B) Left
Chest M-3 x 2.5 cms C) Right Chest M-4.5 x 3.5 cms D) Left Knee
M-2.5x0.5 cms E) Abrasion over chin M-6 x 5 cms O/D Fracture of
Mandible with surrounding soft tissue bruise and extravasaton of
blood.
ii. Laceration over upper lip M-1.5 x 0.5 x 0.5 cms
iii. Laceration of helix of the right ear M-3x 2 x 0.2 cms
iv. Laceration of upper lip M-1.5 x 0.5 x 0.5 cms
v. Contusion M-2.5 x 2 x 0.5 cms over upper 3rd of right side of chest
vi. Contusion M-2 x 1 x 0.5 cms over right side of chest.
vii.O/D Head:- Scalp – Contusion over left fronto tempero parietal
region M-17 x 8 x 0.5 cms and right fronto temporal region M-8 x 7 x
0.5 cms with contusion of both side temporalis muscles, cranial vault
– fissured fracture of left fronto temporal bone M-6 cms long.
Duramater – Intact.
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viii.Brain – Sub dural and sub arachniod haemorrhage all over the brain
surface.
ix. Base of Skull – Fissured fracture on the left middle cranial fossa 4
cms long.
x. Ribs fracture on left side 2 and 3 in the mid axillary line with
surrounding soft tissue bruise and extravasation of blood. Both lungs
– Soft C/S Decomposing.
xi. Heart – Flabby, C/s Soft and Decomposing.
xii.Stomach – Contained 160 gms of partially digested cooked rice
particles with no specific smell.
xiii.Mucosa – Decomposing.
xiv.Liver, Spleen and Kidneys – Soft and Decomposing.
xv.Bladder – Empty.
xvi.Hyoid, Pelvis and Spinal Column – Intact.”
2.13 Samples of the visceral organs were sent to the Regional
Forensic Science Laboratory for chemical analysis. After obtaining the
viscera report (Ex-P5), Dr.Sangeetha (PW4) gave her final opinion (Ex-P6),
wherein, she has stated as follows:
“Final Opinion: The deceased would appear to
have died due to multiple injuries.”
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2.14 The appellant appeared before Govindaraj (PW5), V.A.O., on
10.09.2013 at 10.00 a.m. and gave an extrajudicial confession (Ex-P9),
wherein, after describing his personal details, the appellant has stated that
on the night on 22.08.2013, Thangam and he were consuming liquor
beneath the conveyor belt of Poclain machine; while drinking, Thangam
was angry with him as he (Thangam) had shared the lesser quantity of liquor
and abused him (appellant) for the same; thereafter, Thangam slippered him
and hence, he banged the head of Thangam on the Poclain machine,
resulting in the death of Thangam.
2.15 Thereafter, Govindaraj (PW5), V.A.O., produced the appellant
along with the special report (Ex-P10) to the Investigating Officer, who
formally placed the appellant under arrest and recorded his police
confession.
2.16 Based on the disclosure of the appellant, the Investigating
Officer went to the house of the appellant and seized the following objects:
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i. a brown colour half hand shirt ... M.O.4
ii. a green colour lungi ... M.O.5
iii. bloodstained apparel worn by Thangam
at the time of incident viz., black half pant ... M.O.9
iv. bloodstained apparel worn by Thangam
at the time of incident viz., blue colour half
hand shirt ... M.O.10
The above objects were sent to the Regional Forensic Science Laboratory
for biological and serological examination.
2.17 The biological report (Ex-P17) shows that blood was detected
in the brown shirt (M.O.4), lungi (M.O.5) and blue shirt (M.O.10).
However, in the serological report (Ex-P18), it has been stated that the result
of grouping test is inconclusive.
2.18 After examining witnesses and collecting the various reports,
the Investigating Officer completed the investigation and filed a final report
in P.R.C.No.40 of 2013 before the Judicial Magistrate No.II, Mettur, for the
offence under Section 302 IPC against the appellant.
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2.19 On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C. No.253 of 2014 and was made over to the I Additional
District and Sessions Court, Salem, for trial.
2.20 The trial Court framed charge under Section 302 IPC against
the appellant and when questioned, he pleaded “not guilty”.
2.21 To prove the prosecution case, the police examined sixteen
witnesses and marked twenty two exhibits and ten materials objects.
2.22 When the appellant was questioned under Section 313 Cr.P.C.
on the incriminating circumstances appearing against him, he denied the
same. From the side of the appellant, three witnesses were examined and
two documents were marked.
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2.23 After considering the evidence on record and hearing either
side, the trial Court, by judgment and order dated 31.08.2017 in S.C.No.253
of 2014, convicted the appellant of the offence under Section 302 IPC and
sentenced him to undergo life imprisonment and to pay a fine of Rs.5,000/-,
in default to undergo six months simple imprisonment.
2.24 Challenging the above conviction and sentence, the appellant
has preferred the present appeal.
3. Heard Mr.T.Muruganantham, learned counsel for the appellant
and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor
appearing for the respondent/State.
4. The prosecution has proved beyond doubt the fact that
Thangam was working as Watchman in O.K.M. Blue Metals and Quarries
and his death was a homicide. The question before us is, whether the
appellant was the perpetrator of the alleged offence.
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5. The prosecution case rests on the evidences of Amudhan
(PW2), Sivakumar (PW3), Kalaivani (PW10) and extra judicial confession
(Ex-P9) that was given by the appellant to Govindaraj (PW5).
6. It is true that Sivakumar (PW3) turned hostile, but, in his
evidence, he has stated that on 22.08.2013, around 9.30 p.m., he was called
by Amudhan (PW2) to the shop of Kalaivani (PW10) and was asked to
identify a person. However, Sivakumar (PW3), in his cross-examination, has
stated that the appellant was not the said person. Therefore, he was declared
hostile.
7. Amudhan (PW2), in his evidence, has stated that on 22.08.2013
around 9.00 p.m., he had gone to switch on the pump-set in his land, which
adjoins the quarry; at that time, he heard the voice of someone saying that
he is being attacked; soon, he saw a person going out of the quarry, he
following him and intercepted him; thereafter, he (PW2) was joined by
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Sivakumar (PW3); when the said person was questioned by them, he gave
out his name as Kumar; when they asked him as to whether he knows
anyone in the village, the said person stated that he is known to Kalaivani
(PW10), who runs a grocery shop in the main road; so, they took him to the
shop of Kalaivani (PW10) and confronted him; Kalaivani (PW10) stated
that she knows that person as he used to come to her shop off and on to buy
cigarettes and beedis. He (PW2) identified that person as the appellant.
8. Kalaivani (PW10) has completely corroborated the evidence of
Amudhan (PW2) in this regard and she has identified the appellant as the
person who was brought to her shop for verification by Kumar (PW1) and
Sivakumar (PW3). The defence was not able to make any serious dent in the
cross-examination of Amudhan (PW2) and Kalaivani (PW10).
9. Now, coming to the extra judicial confession (Ex-P9) given by
the appellant to Govindaraj (PW5), V.A.O, the admissibility of an
extrajudicial confession given to the V.A.O. has been held by the Supreme
Court in Sivakumar Vs. State1.
1 (2006) 1 SCC 714
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10. In the extrajudicial confession (Ex-P9), the appellant has
confessed the circumstances, under which, a quarrel arose between him and
Thangam while consuming liquor and that had resulted in him banging the
head of Thangam with Poclain repeatedly, resulting in the death of
Thangam. The medical evidence also corroborates the version given by the
appellant in his extrajudicial confession (Ex-P9).
11. As regards the defence witnesses, they were essentially
examined in order to show that the appellant is not Kumar, but, Muthaiya of
Manathal Village.
12. Be that as it may, the fact that the appellant was in the quarry
has been spoken to by Ponnusamy (PW12), who is the employer, as well by
Iyyappan (PW11), who had taken the quarry on lease from Chellamuthu
(PW9). These witnesses have stated that the appellant was engaged as
Compressor Operator in O.K.M. Blue Metals and Quarries.
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13. The fact remains that when the appellant was confronted by
Amudhan (PW2) on the day of occurrence, he concealed his real name and
gave out his name as Kumar, which is also a very powerful circumstance
appearing against him. That is why, in column no.7 of the printed FIR (Ex-
P13), is has been mentioned as “Kumar or someone else”.
14. Therefore, we are of the view that the prosecution has proved
that the appellant has caused the death of Thangam.
15. Now, coming to the penal provision, from the extrajudicial
confession (Ex-P9), it is seen that the appellant and Thangam were drinking
and at that time, the appellant is said to have been slapped by Thangam with
chappal. As a retaliation, the appellant is said to have banged the head of
Thangam with Poclain.
16. From the proved facts, the conviction of the appellant of the
offence under Section 302 IPC may not be sustainable and the same would
fall within the ambit of Section 304-II IPC.
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In view of the foregoing discussion, this criminal appeal stands partly
allowed. The conviction and sentence imposed on the appellant by judgment
and order dated 30.08.2017 in S.C.No.253 of 2014 on the file of the I
Additional District and Sessions Court, Salem, are set aside and the
appellant is convicted of the offence under Section 304-II IPC and
sentenced to undergo seven years rigorous imprisonment and to pay a fine
of Rs.5,000/-, in default to undergo six months simple imprisonment.
(P.N.P.,J.) (R.N.M.,J.)
04.08.2021
nsd
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Crl.A.No.207 of 2018
To
1.The I Additional District and Sessions Judge,
Salem.
2.The Inspector of Police,
Maecheri Police Station,
Salem District.
3.The Public Prosecutor,
Madras High Court,
Chennai – 600 104.
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Crl.A.No.207 of 2018
P.N.PRAKASH,J.
and
R.N.MANJULA,J.
Nsd
Crl.A.No.207 of 2018
04.08.2021
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