Madras High Court
Balakrishnan vs State Represented By on 4 August, 2021
Criminal Appeal No.23 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
Criminal Appeal No.23 of 2018
Balakrishnan
S/o.Aruchamy Gounder .. Appellant
Vs.
State represented by
The Inspector of Police,
Anamalai Police Station.
Crime No.414 of 2016 .. Respondent
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 21.11.2017 passed in S.C.No.68 of
2017 on the file of learned I Additional District and Sessions Judge,
Coimbatore.
For Appellant : Mr.A.Sairaman
for M/s.Dass and Viswa Associates
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
*****
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Criminal Appeal No.23 of 2018
JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J]
This criminal appeal is directed against the judgment and order of
conviction and sentence dated 21.11.2017 passed by the learned I
Additional District and Sessions Judge, Coimbatore, in S.C.No.68 of 2017.
2. The prosecution story runs thus:
2.1. It is a case of parricide. Muthukumarasamy, Vijayaraj,
Varadharaj, Jegajeevan Ram [deceased], Balakrishnan [appellant] and
Azhagiya Gounder [PW-1] are brothers and they are the sons of Aruchamy
Gounder. They are natives of Kupitchi Pudur Village in Anamalai Taluk,
Pollachi. Their father had partitioned the properties amongst the six siblings
and appears to have handed over the original title deeds to the appellant.
2.2. Azhagiya Gounder [PW-1] and his wife Selvi [PW-2] are residing
in the share allotted to Jegajeevan Ram in Vinayagar Koil Street. There was
some bad blood between Jegajeevan Ram and the appellant, in that,
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Criminal Appeal No.23 of 2018
Jegajeevan Ram was asking the appellant to give the original title deeds of
the property for which the appellant was not agreeing. Therefore, on and off,
they used to quarrel.
2.3. On the fateful day, i.e. 09.10.2016 around 08.15 p.m., the
appellant and Jegajeevan Ram were quarrelling near a Perumal temple that
is located diagonally opposite the house of Azhagiya Gounder [PW-1]. On
hearing their quarrel, Azhagiya Gounder [PW-1] and his wife Selvi [PW-2]
came out of their house and at that time, they saw the appellant attacking
Jegajeevan Ram with a billhook [MO-1]. When Jegajeevan Ram fell down,
the appellant dropped a stone on his head. When Azhagiya Gounder [PW-1],
Selvi [PW-2] and other villagers tried to intervene, the appellant threatened
them of dire consequences and thereafter, ran away.
2.4. On a written complaint [Ex.P1] given by Azhagiya Gounder
[PW-1], Valliammal [PW-8], Sub-Inspector of Police, registered a case in
Crime No.414 of 2016 for the offence u/s.302 IPC on 09.10.2016 at 21.30
hours against the appellant and prepared the printed First Information
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Criminal Appeal No.23 of 2018
Report [Ex.P13], which reached the jurisdictional Magistrate on the same
day at 11.45 p.m., as could be seen from the endorsement thereon.
2.5. Investigation of the case was taken over by N.Somasundaram
[PW-9], Inspector of Police, who went to the place of occurrence, prepared
the observation mahazar [Ex.P4] and rough sketch [Ex.P14]. From the place
of occurrence, the Investigation Officer [PW-9] seized soil with bloodstains
[MO-4] and soil without bloodstains [MO-5] under the cover of a mahazar
[Ex.P3]. The Investigation Officer [PW-9] conducted inquest over the body
of Jegajeevan Ram and the inquest report was marked as Ex.P15. The body
was sent to Government Hospital, Coimbatore, for postmortem, where
Dr.Peranantham [PW-5] conducted autopsy and issued the postmortem
certificate [Ex.P6]. After getting the viscera report [Ex.P7], Dr.Peranantham
[PW-5] gave his final opinion under Ex.P8, wherein, he has opined as
follows:
'OPINION: As to cause of death is already given in
Postmortem Certificate. Viscera does not contain any poison'
2.6. The appellant was arrested by the police on 10.10.2016 at 07.00
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Criminal Appeal No.23 of 2018
a.m. and on the disclosure made by him, the Investigation Officer [PW-9]
seized the billhook [MO-1] under the cover of a mahazar [Ex.P16] in the
presence of witnesses Deenadayalan (not examined) and Muruganantham
[PW-7]. That apart, the Investigation Officer [PW-9] seized the stone [MO-
2] that was allegedly thrown by the appellant on Jegajeevan Ram's head
under the cover of a mahazar [Ex.P17] in the presence of the same witnesses
viz., Deenadayalan (not examined) and Muruganantham [PW-7].
2.7. After examining various witnesses and collecting the reports of
the experts, the Investigation Officer [PW-9] completed the investigation
and filed a final report in P.R.C.No.5 of 2017 in the Court of the Judicial
Magistrate I, Pollachi, for the offence u/s.302 IPC against the appellant.
3. 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.68 of 2017 and was made over to the I Additional District
and Sessions Court, Coimbatore, for trial. The trial Court framed charges
u/s.302 and 506(II) IPC against the appellant and when questioned, the
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Criminal Appeal No.23 of 2018
appellant pleaded 'not guilty'.
4. To prove the case, the prosecution examined 9 witnesses and
marked 21 exhibits and 7 material objects. When the appellant was
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against him, he denied the same. No witness was examined from the side of
the appellant nor any document marked.
5. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 21.11.2017 in S.C.No.68 of
2017, convicted and sentenced the appellant as follows :
Provision under Sentence
which convicted
Section 302 IPC Life imprisonment and fine of Rs.5,000/-, in
default, to undergo three months simple
imprisonment.
Section 506(II) IPC One year rigorous imprisonment.
Challenging the aforesaid conviction and sentences, the accused is before
this Court in this appeal.
6. Heard Mr.A.Sairaman, learned counsel for the appellant and
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Criminal Appeal No.23 of 2018
Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, appearing
for the respondent State.
7. The prosecution has proved beyond a peradventure the relationship
between the appellant and Jegajeevan Ram and the fact that the death of
the latter was a homicide.
8. To link the appellant with the crime, we have the ocular evidences
of Azhagiya Gounder [PW-1] and his wife Selvi [PW-2]. Azhagiya Gounder
[PW-1], in his evidence, has stated that the appellant and Jegajeevan Ram
are his brothers; their father had partitioned the family properties and had
allotted shares to all the six brothers; their father had handed over the
original title deeds to the appellant; his brother Jegajeevan Ram was
frequently asking the appellant to give him the original title deeds, but the
appellant was refusing to give them; on 09.10.2016, while he was watching
TV in his house, his wife Selvi [PW-2] told him that the appellant and
Jegajeevan Ram were quarrelling outside; so, he went out to see what it
was; he saw the appellant attacking Jegajeevan Ram with a billhook [MO-
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Criminal Appeal No.23 of 2018
1], which he normally carries as he is a tender coconut seller; thereafter, the
appellant dropped a stone on Jegajeevan Ram's head and when they went
running towards him, he intimidated them and ran away.
9. In the cross-examination of Azhagiya Gounder [PW-1], he was
confronted with an alleged contradiction, in that, he has stated in the chief-
examination that after Jegajeevan Ram fell on the ground after he was
attacked with the billhook [MO-1], the appellant turned him upside down
and thereafter, dropped the stone, which was not found either in the
complaint [Ex.P1] or in his police statement.
10. Mr.Sairaman, learned counsel appearing for the appellant, placed
great reliance upon this omission and submitted that this does make the
evidence of Azhagiya Gounder [PW-1] suspect.
11. We are unable to countenance the said submission. On a perusal
of the photographs of the scene of crime, it is seen that Jegajeevan Ram was
lying on the ground in a supine position. Just because in the complaint
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Criminal Appeal No.23 of 2018
[Ex.P1], Azhagiya Gounder [PW-1] had failed to state that the appellant
turned the body and dropped the stone, such failure, could not, by itself,
make his evidence suspect, inasmuch as even in the complaint [Ex.P1],
Azhagiya Gounder [PW-1] had stated about the fact that the appellant
dropped a stone on Jegajeevan Ram's head.
12. The evidence of Azhagiya Gounder [PW-1] was adequately
corroborated by his wife Selvi [PW-2], who had also witnessed the
occurrence. Azhagiya Gounder [PW-1] and Selvi [PW-2] were examined in
chief on 09.08.2017 and on the same day, they were examined in cross.
However, both of them were recalled on 13.09.2017 and they were further
cross-examined. Even in the further cross-examination, they have clearly
stated that they came out of the house on hearing the quarrel and witnessed
the attack. Azhagiya Gounder [PW-1] has clearly stated that the whole
attack got over in five minutes. These questions have been elicited by the
defence in the cross-examination, which have further strengthened the
testimony of these witnesses.
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Criminal Appeal No.23 of 2018
13. We find no reason to disbelieve the evidence of these two
witnesses, inasmuch as it is an admitted fact that Azhagiya Gounder [PW-1]
is none other than the own brother of Jegajeevan Ram and the appellant and
in such circumstances, he has no reason to falsely implicate the appellant.
14. Coming to the penal provision, we find that the appellant is a
tender coconut seller for which he is required to carry a billhook. He had not
carried the billhook [MO-1] with him deliberately with an intention of
attacking his brother Jegajeevan Ram. In such view of the matter, the proved
facts do not disclose the commission of an offence u/s.302 IPC but for an
offence u/s.304(I) IPC.
15. For the foregoing reasons, the conviction and sentence imposed
on the appellant for the offence u/s.302 IPC are set aside. Instead, the
appellant is convicted u/s.304(I) IPC and sentenced to ten years rigorous
imprisonment and fine of Rs.5,000/-, in default to undergo three months
simple imprisonment. If the fine amount has already been paid pursuant to
the judgment and order of the trial Court, it is not necessary for the
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Criminal Appeal No.23 of 2018
appellant to pay once again. The conviction and sentence for the offence
u/s.506(II) IPC stands confirmed. The sentences shall run concurrently. The
trial Court is directed to secure the appellant towards serving the remaining
period of sentence. Period of incarceration thus far undergone by the
appellant shall be set off in keeping with Section 428 Cr.P.C.
In the result, the Criminal Appeal is partly allowed.
[P.N.P., J] [R.N.M., J]
04.08.2021
Index: Yes/No
gm
To
1.The I Additional District and Sessions Judge,
Coimbatore.
2.The The Inspector of Police,
Anamalai Police Station.
3.The Superintendent,
Central Prison,
Coimbatore.
4.The Public Prosecutor,
High Court, Madras.
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Criminal Appeal No.23 of 2018
P.N.PRAKASH, J
and
R.N.MANJULA, J
gm
Criminal Appeal No.23 of 2018
04.08.2021
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