Madras High Court
Kolanjinathan vs State Represented By on 5 August, 2021
Criminal Appeal No.291 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Criminal Appeal No.291 of 2018
and
Crl.M.P.No.5221 of 2021
1.Kolanjinathan
S/o.Karuppaiah
2.Jeyakumar
S/o.Thirumalai
3.Chennaiyan @ Rajasekaran
S/o.Kolanjinathan .. Appellants
Vs.
State represented by
The Inspector of Police,
Kunnam Police Station,
Perambalur.
Crime No.427 of 2015 .. Respondent
1/16
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Criminal Appeal No.291 of 2018
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 15.03.2018 passed in S.C.No.6 of
2017 on the file of learned Principal District and Sessions Judge,
Perambalur.
For Appellants : Mr.V.Gopinath, Senior Counsel
for Mr.L.Mahendran
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
*****
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 15.03.2018 passed by the learned Principal
District and Sessions Judge, Perambalur, in S.C.No.6 of 2017.
2. The prosecution story runs thus:
2.1. The deceased Elavarasan is the son of Vairam [PW-1], husband of
Ambika [PW-2] and, brother of Thirumal [PW-7] and Jayaraman [PW-8].
The family of Elavarasan hailed from Keezhamathur village in Perambalur
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Criminal Appeal No.291 of 2018
and they were owning lands nearby. The family of Elavarasan was having a
boundary dispute with the family of the accused and civil litigations were
pending between the parties.
2.2. While that being so, it is alleged that on 13.09.2015, around
11.00 a.m., when Vairam [PW-1], Ambika [PW-2], Thirumal [PW-7],
Jayaraman [PW-8] and the deceased Elavarasan went to their lands, they
found the family members of the accused putting up a fence. Therefore, they
objected to it by saying that when a civil suit is pending in the Court, they
should not put up any fence. Thus, a quarrel ensued, in which, it is alleged
that the accused party attacked Elavarasan with sticks and an iron rod that
were lying nearby and caused injuries to Elavarasan. It is also alleged that
the womenfolk viz., Muthammal [A4] and Ramya [A5] attacked Vairam
[PW-1] and Suganthi [PW-5] by pulling their hair.
2.3. After the attack, Jayaraman [PW-8] summoned 108 ambulance
and took his injured brother Elavarasan and his mother Vairam [PW-1] to
the Government Hospital, Ariyalur, where Elavarasan was examined by
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Criminal Appeal No.291 of 2018
Dr.Mohammed Riyaz [PW-12], who issued the Accident Register, marked as
Ex.P9. Since there were injuries on Elavarasan's head, after giving some
initial first aid, he was sent for advance treatment to Thanjavur Medical
College and Hospital on the same day. There, Elavarasan was examined by
Dr.Kumarasenthil [PW-13] and was admitted as an inpatient for the head
injury. Dr.Muthuraman [PW-14], performed a surgery, but in vain.
Elavarasan succumbed to the injuries on 14.09.2015 at 12.20 p.m.
2.4. In the mean while, after getting intimation from the hospital,
Rajasekar [PW-15], Head Constable, from Kunnam Police Station, went to
Government Hospital, Thanjavur and recorded the statement of Vairam
[PW-1], which has been marked as Ex.P1.
2.5. Based on the statement of Vairam [PW-1], Jayapaul [PW-16],
Sub-Inspector of Police, registered a case in Kunnam Police Station Crime
No.427 of 2015 on 13.09.2015 at 23.00 hours for the offences u/s.147,
294(b), 323, 324 and 506(II) IPC against Kolanjinathan [A1], Jayakumar
[A2], Chinnaiyan [A3], Muthammal [A4] and Ramya [A5] and prepared the
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Criminal Appeal No.291 of 2018
printed First Information Report [Ex.P13], which was received by the
jurisdictional Magistrate at 10.30 a.m. on 14.09.2015, as could be seen from
the endorsement thereon.
2.6. Jayapaul [PW-16], Sub-Inspector of Police went to the place of
occurrence and prepared the observation mahazar [Ex.P4] and rough sketch
[Ex.P14].
2.7. Investigation of the case was taken over by Prakash [PW-22],
Inspector of Police. On receiving the death intimation from the Government
Hospital, Thanjavur, the Investigation Officer [PW-22] altered the case to
one u/s.302 IPC vide alteration report [Ex.P18]. He went to the place of
occurrence and examined the witnesses. The Investigation Officer [PW-22]
went to the hospital and conducted inquest over the body of Elavarasan and
the inquest report was marked as Ex.P21. On his request, Dr.Tamilmani
[PW-19] performed autopsy on the body of Elavarasan and issued the
postmortem certificate [Ex.P16]. After obtaining the viscera report,
Dr.Tamilmani [PW-19] gave his final opinion in Ex.P17, wherein, he has
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Criminal Appeal No.291 of 2018
stated as follows:
'FINAL OPINION:
The deceased would appear to have died of head injury due to
injuries over vital organ of brain.'
2.8. The Investigation Officer [PW-22] arrested Kolanjinathan [A1],
Jayakumar [A2] and Chinnaiyan [A3] at 06.00 p.m. on 14.09.2015 and
based on the disclosure statement of the accused, he recovered two sticks
[MOs.1 and 2] and an iron rod [MO-3] under the cover of mahazars [Exs.P2
and P3] in the presence of witnesses Marimuthu [PW-9] and Selvaraj [PW-
11]. The Investigation Officer [PW-22] arrested Muthammal [A4] and
Ramya [A5] on 15.09.2015 at 16.30 hours.
2.9. After examining various witnesses and collecting the reports of
the experts, the Investigation Officer [PW-22] completed the investigation
and filed a final report in P.R.C.No.27 of 2016 in the Court of the Judicial
Magistrate, Perambalur, for the offences u/s147, 148, 294(b), 323, 324, 354,
506(II) and 302 IPC against the accused.
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Criminal Appeal No.291 of 2018
2.10. On appearance of the accused (A1 to A5), 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.6 of 2017, for trial.
2.11. The trial Court framed charges u/s.147, 294(b), 323 (2 counts),
302, 302 r/w 149 and 506(II) IPC against the five accused. When
questioned, the accused pleaded 'not guilty'.
2.12. To prove the case, the prosecution examined 22 witnesses and
marked 22 exhibits and 5 material objects. When the accused were
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against them, they denied the same. From the side of accused, Exs.D1 to D4
were marked during the cross-examination of prosecution witnesses. No
witness was examined from the side of accused.
2.13. After considering the evidence on record and hearing either
side, the trial Court, by judgment and order dated 15.03.2018 in S.C.No.6 of
2017, acquitted Muthammal [A4] and Ramya [A5] of all the charges;
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Criminal Appeal No.291 of 2018
Kolanchinathan [A1] of the charges u/s.147, 294(b) and 506(II) IPC and
Jayakumar [A2] and Chinnaiyan [A3] of the charge u/s.147 IPC. However,
the trial Court convicted Kolanchinathan [A1], Jayakumar [A2] and
Chinnaiyan [A3] of the offence u/s.302 IPC and sentenced each of them to
undergo life imprisonment and pay fine of Rs.1,000/-, in default, to undergo
one year simple imprisonment.
2.14. Challenging the aforesaid conviction and sentences,
Kolanchinathan [A1], Jayakumar [A2] and Chinnaiyan [A3] are before this
Court in this appeal.
3. Heard Mr.V.Gopinath, learned Senior Counsel appearing for the
appellants/accused and Mr.M.Babu Muthu Meeran, learned Additional
Public Prosecutor, appearing for the respondent State.
4. The prosecution case rests on the ocular evidences of Vairam [PW-
1], Ambika [PW-2], Govindarajan [PW-3], Sengamuthu [PW-4], Suganthi
[PW-5], Thirumal [PW-7] and Jayaraman [PW-8].
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Criminal Appeal No.291 of 2018
5. Vairam [PW-1], in her evidence, has stated that she has three sons
viz., Thirumal [PW-7] and Jayaraman [PW-8] and Elavarasan (deceased) and
a daughter by name Amudha; Ambika [PW-2] is the wife of Elavarasan;
Govindarajan [PW-3] is the junior paternal uncle of Elavarasan; Suganthi
[PW-5] is the wife of Jayaraman [PW-8]. All these witnesses have stated
that there is a boundary dispute between them and the family of the accused.
6. At this juncture, it may be relevant to state here that
Kulanchinathan [A1] is the husband of Muthammal [A4] and father of
Chinnaiyan [A3] and Ramya [A5]. Jayakumar [A2] is a close relative of
Kulanchinathan [A1]. Thus, all the members of the family of
Kulanchinathan [A1] were implicated in this case.
7. As noted in paragraph No.5 (supra), in their evidences, the
eyewitnesses have stated that there was a boundary dispute between the
family of Vairam [PW-1] and the accused; that being so, on 13.09.2015
around 11.00 a.m., they received information that the family of the accused
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were putting up a fence in the disputed property and so, they went there and
objected to that; at that time, Kolanchinathan [A1] and Chinnaiyan [A3]
attacked Elavarasan with sticks [MO-1 and MO-2]; Jayakumar [A2]
attacked Elavarasan with an iron rod [MO-3]; Elavarasan fainted and at that
time, Muthammal [A4] and Ramya [A5] pulled the hair of Vairam [PW-1]
and her daughter-in-law Suganthi [PW-5]; thereafter, 108 ambulance was
called, in which, Elavarasan was taken to the hospital, where Vairam [PW-1]
gave a statement to the police and the same was marked as Ex.P1.
8. In the cross-examination, Vairam [PW-1] admitted that there was a
boundary dispute between her family and the family of the accused and civil
cases are pending. Vairam [PW-1] inter se admitted the relationship of the
witnesses. She has categorically stated that apart from the five persons, no
one else participated in the incident.
9. On similar lines, the other eyewitnesses viz., Ambika [PW-2],
Govindarajan [PW-3], Sengamuthu [PW-4], Suganthi [PW-5], Thirumal
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[PW-7] and Jayaraman [PW-8] have deposed. However, they have stated
that it was Kolanchinathan [A1], who hit Elavarasan on his head, which,
from the medical records, proved to be a fatal injury. The medical evidence
of Dr.Muthuraman [PW-14], who performed surgery on Elavarasan in the
Government Hospital, Thanjavur, also indicates the head injury sustained by
Elavarasan. However, Jayaraman [PW-8], who had taken Elavarasan to the
Government Hospital, Ariyalur, for treatment, stated to Dr.Mohammed
Riyaz [PW-12] that about nine persons (5 males and 4 females) attacked
Elavarasan with sticks.
10. Placing reliance on the above, Mr.V.Gopinath, learned Senior
Counsel, submitted that the family of Elavarasan was wanting to implicate
all the members of the family of the accused in the case and hence, they
have stated 5 males and 4 females joined the attack. There appears to be
some force in the submission of the learned Senior Counsel. That is one of
the reasons, why the trial Court had acquitted Muthammal [A4] and Ramya
[A5].
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Criminal Appeal No.291 of 2018
11. From a reading of the evidences, it is seen that while the accused
were putting up the fence, the victim party came there and questioned them.
A quarrel appears to have ensued there. The accused were not armed with
any weapon. Even according to the witnesses, they picked the sticks and
iron rod that were lying there and used them to attack.
12. On a reading of all these witnesses, there is no clear evidence with
regard to the overt act of Chinnaiyan [A3]. However, the injuries alleged to
have been inflicted by Kolanchinathan [A1] with a stick and Jayakumar
[A2] with an iron rod, find sufficient corroboration medically.
13. All the eyewitnesses uniformly say that Chinnaiyan [A3] attacked
Elavarasan on his forehead, whereas, there is no corroborative medical
evidence in this regard. No forehead injury has been noted by any of the
doctors, who had examined and treated Elavarasan. Even the postmortem
report [Ex.P16] does not speak about the presence of any injury on the
forehead. Under such circumstances, we are of the view that the benefit of
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Criminal Appeal No.291 of 2018
the same should have to be given to Chinnaiyan [A3].
14. As regards the penal provision, the proved facts do not disclose
commission of an offence u/s.302 IPC, inasmuch as, the accused had not
gone to the place of occurrence armed with any weapon. As stated above,
they were putting up the fence and at that time, the dispute had arisen. Thus,
the proved facts disclose commission of an offence u/s.304 (II) IPC r/w 34
IPC as against Kulanchinathan [A1] and Jayakumar [A2], inasmuch as, they
had caused the injuries, with a stick and an iron rod, to Elavarasan.
15. In view of the above discussion,
(i) The conviction and sentence imposed on Kulanchinathan [A1] and
Jayakumar [A2] for the offence u/s.302 IPC are set aside. Instead,
Kulanchinathan [A1] and Jayakumar [A2] are convicted u/s.304(II) r/w
34 IPC and each of them is sentenced to undergo seven years rigorous
imprisonment. The fine imposed by the trial Court is confirmed. The trial
Court is directed to secure Kulanchinathan [A1] and Jayakumar [A2]
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towards serving the remaining period of sentence. Period of
incarceration thus far undergone by Kulanchinathan [A1] and Jayakumar
[A2] shall be set off in keeping with Section 428 Cr.P.C. and
(ii)Chinnaiyan [A3] is acquitted of the charge u/s.302 IPC. The conviction
and sentence passed against Chinnaiyan [A3] are set aside. Fine amount,
if any, paid by Chinnaiyan [A3] shall be refunded. Bail bond executed
shall stand discharged.
In the result, this Criminal Appeal is partly allowed. Consequently,
the connected miscellaneous petition is closed. The trial Court is directed to
issue warrant and commit Kulanchinathan [A1] and Jayakumar [A2] in
custody to undergo the remaining sentence.
[P.N.P., J] [R.N.M., J]
05.08.2021
Index: Yes/No
gm
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Criminal Appeal No.291 of 2018
To
1.The Principal Sessions Judge,
Perambalur.
2.The Inspector of Police,
Kunnam Police Station,
Perambalur.
3.The Superintendent,
Central Prison,
Trichirapalli.
4.The Public Prosecutor,
High Court, Madras.
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Criminal Appeal No.291 of 2018
P.N.PRAKASH, J
and
R.N.MANJULA, J
gm
Criminal Appeal No.291 of 2018
05.08.2021
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