Madras High Court
)Loganathan vs State Represented By on 18 August, 2021
CRL.A(MD)No.544 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :18.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Criminal Appeal(MD)No.544 of 2018
and
CRL.MP(MD)No.4946 of 2021
1)Loganathan
2)Sathishkumar ... Appellants/Accused 1 & 2
vs.
State Represented by
Inspector of Police,
Siruganur Police Station,
Trichy District.
(Crime No.172/2015) ... Respondent/Complainant
Appeal filed under Section 374 of the Code of Criminal Procedure,
1973, to set aside the judgment passed by the Principal Sessions Judge,
Trichy, in S.C.No.126 of 2017 dated 11.12.2018 and acquit the appellants
herein.
For Appellant : Mr.N.R.Elango, Senior Counsel for
Mr.T.J.Ebenezer Charles
For Respondent : Mr.S.Ravi, Standing Counsel on behalf of
the Government of Tamil Nadu
1/18
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CRL.A(MD)No.544 of 2018
JUDGMENT
(Judgment of the Court was made by V. BHARATHIDASAN, J.)
The appellants are accused 1 and 2 in S.C.No.126 of 2017 on the
file of the Principal Sessions Judge, Trichy. The 1st accused stood
charged for the offence under Section 302 IPC and the 2 nd accused stood
charged for the offence under Section 302 read with 34 IPC. The trial
Court convicted both the accused and sentenced to undergo life
imprisonment, also to pay a fine of Rs.2,000/- each, in default to undergo
rigorous imprisonment for a further period of four years each.
Challenging the abovesaid conviction and sentence, the appellants are
before this Court with this appeal.
2.The case of the prosecution is that, the deceased by name,
Harikrishnan, is the brother of PW1, and he was working as a Conductor
in a private stage carrier. On 06.05.2015, at about 10.30 p.m., while he
was returning from duty, both the accused waylaid him and had
quarrelled with him and there was a scuffle between the parties in which
A1 pushed down the deceased and both the accused attacked him with
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CRL.A(MD)No.544 of 2018
stones and left the deceased in the scene of occurrence who later
succumb to injuries and both the accused ran away. On the next day
morning 07.05.2015, at about 06.00 a.m., PW1 brother of the deceased
got an information that a dead body is found in Samayapuram
Devimangalam Road, at Kallukuzhi, he rushed there and found the
deceased, immediately he went to the respondent police and filed Ex.P1-
complaint at about 08.00 a.m. On receipt of the complaint, PW23 Sub
Inspector of Police, registered the FIR in Crime No.172/2015, under
Section 302 IPC under Ex.P14 and sent the FIR to the concerned Judicial
Magistrate Court. PW24, Inspector of Police on receipt of the FIR,
commenced the investigation and recorded the statement of witnesses
present therein and also prepared Ex.P2-observation mahazar and
Ex.P15-rough sketch. From the scene of occurrence, he collected blood
stained soil-M.O.4 and ordinary soil-M.O.3, blood stained stones-M.O.5,
6 and 7 and Chapel-M.O.8, 2 rupee coin 2 nos-M.O.9, Khaki colour
button-1-M.O.10, then conducted inquest over the dead body in the
presence of witnesses and panchayatars at Government Hospital,
Tiruchirappalli, and prepared inquest report-Ex.P16. PW18 Doctor
working in Government Hospital, Trichy, conducted post-mortem
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CRL.A(MD)No.544 of 2018
autopsy of the deceased and found many injuries all over the body and
has given a report-Ex.P10 stating that the deceased appears to have died
of head, brain and face injuries. Thereafter, he sent MO2 to MO10 to the
Judicial Magistrate Court, Lalgudi, along with Ex.P.17 in form 95, and
handed over investigation to PW25. PW25 continued the investigation,
subsequently on 14.11.2016, both the accused have appeared before the
Thathamangalam Village Administrative Officer-PW14, who has
produced the accused before the respondent/police along with their
statement under a special report. PW25 arrested the accused in the
presence of VAO and Village Assistant, at that time, the 1st accused had
voluntarily given confession statement and based on his confession,
PW25 recovered a TVS 50 Scooty pep two wheeler-MO11, and
remanded both the accused to judicial custody. Thereafter, he recorded
the statement of other witnesses including the Doctor conducted
postmortem autopsy and owner of the Scooty. On completion of
investigation, PW25 filed final report to the concerned Judicial
Magistrate Court.
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CRL.A(MD)No.544 of 2018
3.Based on the materials, the trial Court framed the charges as
mentioned above and the accused denied the same. In order to prove its
case, the prosecution examined as many as 25 witnesses and marked 19
exhibits apart from 12 material objects.
4.Out of the witnesses examined, PW1 is the brother of the
deceased, he came to know about the death on 07.05.2015, at about 06.00
a.m., and he has given Ex.P1-complaint, before the respondent/police at
about 08.00 a.m. PW2 is a driver working in a private stage carrier
where the deceased was working as a Conductor. He is only a hearsay
witness. PW3 is a neighbour of the deceased and he found the dead body
of the deceased on the next day, he also identified MO1 and MO2-shirt
and lungi worn by the deceased. PW4 is the uncle of the deceased. He is
only a hearsay witness, he also identified MO1 and MO2. PW5 is a lorry
driver and he turned hostile. PW6 is another lorry driver and he also
turned hostile. PW7 is eye-witness to the occurrence. According to him,
the deceased is his friend and on 06.05.2015, at about 10.30 p.m., while
he was coming along with his friend Silambarasan in a two wheeler,
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CRL.A(MD)No.544 of 2018
there was a quarrel between the accused and the deceased and in the
scuffle, they pushed down the deceased, thereafter the accused attacked
the deceased with stones on the face, fearing repercussion both PW7 and
Silambarasan went to their native without informing the occurrence to
anybody. Subsequently after the arrest of the accused, PW7 came
forward to give a statement under Section 161 Cr.P.C before the
respondent/police. PW8 is the uncle of the deceased, according to him,
he only saw the dead body. PW9-aunt of the deceased, is also a hearsay
witness and saw the dead body on the next day. PW10 is another driver
working in the private stage carrier and a friend of the deceased,
according to him on 06.05.2015, he had lunch with the deceased and then
the deceased left him. PW11 is the owner of the lorry in which A1 was
working as a driver and he came to know about the occurrence through
newspaper. PW12 is a cleaner working in the lorry and according to him,
one Sathish had gone in a motor cycle with a girl and both the accused
followed him and PW13, is a witness to the observation mahazar and
rough sketch and also witness to the recovery of MO3 to MO10. PW14,
is a Village Administrative Officer, working in Thathamangalam Village.
According to him, on 14.11.2016, both the accused appeared before him
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CRL.A(MD)No.544 of 2018
and voluntarily given confession that they committed the murder of the
deceased and he recorded the statement in Ex.P4, and produced him
before PW25, and he arrested the accused. Thereafter, A1 has voluntarily
given confession statement and based on the same, PW25 recovered TVS
50 Scooty pep two wheeler-MO11 and remanded both the accused to
judicial custody. PW15 is the Assistant Director working in the Forensic
Lab. He examined the visceral parts of the deceased and given report
under Ex.P7. PW16 is a lorry driver turned hostile. PW17 is the
Assistant Director in the Forensic Department. He examined the blood
sample of the deceased and given Ex.P9 certificate stating that the blood
of the deceased is 'A' group. PW18 post-mortem doctor who conducted
post-mortem autopsy and given Ex.P10, post-mortem report which reads
as follows:-
''1.Face was depressed, deformed and covered with dried,
dark red blood stains; On washing of all the blood stains of the
face, reddish irregular abrasion measuring 15x5 cm present on
forehead and adjoining both eyes, both cheek, nose, and upto upper
and lower lips;
The following lacerated injuries present inside the above
mentioned abrasion.
a)Oblique irregular laceration 2 x 0.5 x 0.2cm on right side of
forehead.
b)Oblique irregular laceration 5 x 2 cm x 0.2cm on right eye
brow.
c)Oblique irregular laceration 5 x 4 cm x 0.2cm on left eye
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CRL.A(MD)No.544 of 2018
brow.
2.Irregular reddish abrasions;
a. 9 x 2 cm on middle third of right side of abdomen 3 cm
away from midline
b. 4 x 1.5 cm on lower part of right side of abdomen 3 cm
away from midline
c. 7 x 0.5 cm on lower part of left side of abdomen 3 cm away
from midline
d. 7 x 0.5 cm on outer aspect of right thigh;
e. 2.5 x 1.5 cm on outer aspect of right Knee;
3.Dark red sub conjunctival Hemorrhages on both eyes;
4.On dissection of head, dark red contusions 4 x 4 x 0.5 cm on left
side of frontal region, 9 x 8 x 0.5 cm on right temporal region, 2 x 2
x 0.5 cm on left parietal region, 10 x 4 x 0.5 cm on occipital region
of scalp; Dark red contusions on both temporalis muscle;
Comminuted fracture over an area of 14 x 3.5 cm on lower part of
right temporal bone extending through right side of frontal bone up
to left side of frontal bone extending on to the floor of both anterior
cranial fossac and right middle cranial fossa; Eura mater was torn at
multiple sites diffuse, dark red subdural and suburachnoid
hemorrhages on right temporo parietal region of brain and both
carehethar hemisphere of the brain;
5.Multiple fractured fragments of nasal bone both cheek bones and
upper jaw bone with surrounding dark red bruising along with
fractures and displacement of all the teeth of upper jaw.
No other external or internal ante-mortem injuries anywhere on the
body.
Heart : c/s: all the chambers were empty no other abnormalities; All
other internal organs: c/s: pale; no other abnormalities; Larynx,
trachea and Bladder: empty; Hyoid bone, Pelvis and Spinal column:
intact; Stomach: contained Partly digested cooked rice particles 410
gms with thick dark green colour with no definite smell; c/s:
mucosa: pale;
Opinion as to the cause of death-
The deceased would appear to have died of Head, Brain and
face injuries.''
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CRL.A(MD)No.544 of 2018
5.PW18 opined that, the deceased appears to have died due to
head, brain and face injuries. PW19-Constable and trainer of sniffer dog
has given a report that they were not able to identify the accused. PW20-
finger print experts examined the scene of occurrence to find out the
finger prints and nothing was available. PW21-Head Constable working
in the respondent/police handed over and identified dead body in the
mortuary and also handed over the dress worn by the deceased to the
investigating officer. PW22, is said to have typed the statement of
witnesses in the computer. PW23, Sub Inspector of Police, who
registered the FIR based on the complaint given by PW1. PW24-
Inspector of Police who commenced the investigation and recorded the
statement of witnesses and also recovered the material objects. PW25 is
another Inspector of Police, continued the investigation and based on the
extra judicial confession given by the accused, he arrested them and
remanded to judicial custody and he also recorded statements of other
witnesses and after completion of the investigation, filed final report.
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CRL.A(MD)No.544 of 2018
6.When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., both the accused denied the same and the
accused neither examined any witness nor marked documents.
Considering those materials, the trial Court convicted the accused as
mentioned in paragraph 1 of the judgment. Now challenging the
conviction and sentence, the appellants are before this Court with this
appeal.
7.Mr.N.R.Ilango, learned Senior Counsel appearing for the
appellants submitted that, the one and only eye-witness available in this
case is PW7, who is said to be the friend of the deceased. According to
him, he was working as a driver and while he returning along with his
friend Silambarasan from the private college at about 10.30 p.m., on
06.05.2015, he saw both the accused attacking the deceased with the
stone, but however, they did not inform the same to anybody. Only after
1½ years on 15.11.2016, PW7 appeared before PW25, Inspector of
Police and given a statement. Hence, the evidence is unreliable. There is
no reason for him to keep quite for more than 1½ years. The occurrence
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CRL.A(MD)No.544 of 2018
has taken place on 06.05.2015 and both the accused said to have
appeared before PW14, V.A.O, on 14.11.2016 and voluntarily given
confession based on that, both the accused have been arrested and
remanded to judicial custody. According to the learned Senior Counsel,
from the perusal of Ex.P4, it is only a special report submitted by the
Village Administrative Officer before the Inspector of Police and the
alleged extra judicial confession given by the accused was not at all
marked, and no extra judicial confession is available on record.
However, the trial Court mainly relying upon the evidence of PW7-eye
witness and also the medical evidence and also Ex.P4-special report,
convicted the accused. According to the learned Senior Counsel, the
evidence of PW7 cannot be relied upon for the simple reason that he has
come forward to give statement 1½ years after the occurrence. That
apart, even the alleged extra judicial confession given by the accused is
also not produced before the court hence, the evidence of PW14-VAO
also cannot be relied upon.
8.Per contra, Mr.S.Ravi, learned Standing Counsel appearing for
the State would contend that PW7 is a singular eye witness in the case.
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CRL.A(MD)No.544 of 2018
He is a friend of the deceased and according to him, he saw both the
accused attacking the deceased with stones, but fearing for the life, he
kept quite and after the accused were arrested, he has given statement
before the police. Merely because, the eye-witness has come forward to
give statement after 1½ years, the evidence cannot be discarded since his
evidence is reliable and trustworthy and corroborating the medical
evidence Ex.P10, the post-mortem report. The learned counsel further
submitted that PW14-VAO before whom both the accused appeared and
voluntarily given confession that was recorded by him and along with his
report, both the accused were produced before the respondent/police. He
fairly admits that the alleged extra judicial confession given by the
accused has not been produced before the court. He further submitted
that merely because the extra judicial confession not produced before the
court, it is not fatal to the case of the prosecution especially, when the
eye-witness PW7 has clearly stated regarding the occurrence.
Considering all those circumstances, the trial court has rightly convicted
the accused and there is no infirmity and there is no need to interfere
with the judgment of the trial Court.
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CRL.A(MD)No.544 of 2018
9.We have considered the rival submissions and also perused the
records carefully.
10.The entire prosecution case rests on the evidence of PW7-eye
witness to the occurrence and also the extra judicial confession given by
the accused before PW14-VAO. The occurrence said to have taken place
on 06.05.2015 at about 10.30 p.m. The deceased is stranger to the
accused. The case of the prosecution is that the deceased was working as
a Conductor in a private stage carrier and while he returning to home,
there was a scuffle between the parties during which both the accused
attacked the deceased with stones, caused severe injuries in the head, and
all over the body, and caused his death and left the body in the scene of
occurrence and ran away. PW7 is the only eye-witness to the occurrence.
He was working as a driver in a private engineering college bus, and he
is a friend of the deceased. According to him, both PW7 and one
Silambarasan while returning in a two wheeler, saw both the accused
attacking the deceased with stone and without any enquiry, they left the
place and PW7 has not even informed the police.
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CRL.A(MD)No.544 of 2018
11.Admittedly, after more than 1½ years on 15.11.2016 after the
accused were arrested, PW7 appeared before PW25, and given a
statement under Section 161 Cr.P.C., stating that only these accused
attacked the deceased. PW7 is a very close friend of the deceased, in the
course of examination, he has admitted that he had not disclosed about
the occurrence to anybody. There is no plausible explanation on the side
of PW7 for keeping quite for more than 1½ years and disclosed the same
only after the arrest of the accused. That apart, another person who has
accompanied PW7 namely, Silambarasan was not examined by the
prosecution. In these circumstances, we are of the opinion that the
evidence of PW7 is totally untrustworthy and unreliable and it is unsafe
to convict the accused based on the singular evidence PW7.
12.The next evidence relied upon by the prosecution is the extra
judicial confession given by the accused before the VAO-PW14. On
perusal of his evidence, it is seen that on 14.11.2016, both the accused
appeared before him and A1 alone said to have given confession.
Thereafter, along with a special report, Ex.P4, PW14 produced both the
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CRL.A(MD)No.544 of 2018
accused before the Inspector of Police PW24. Perusal of Ex.P4, it is seen
that it is only a special report filed by him before PW24-Inspector of
Police. The alleged extra judicial confession said to have been given by
A1 was not marked before the court. In the cross examination, PW14 has
clearly admitted that he has not prepared 3 copies of the alleged
statement given by the accused as per the village administrative manual
and copies were also not sent to the police and the concerned judicial
court and he did not keep a copy for office purpose. In the said
circumstances, it cannot be believed that A1 has given the alleged extra
judicial confession before PW14.
13.Considering those circumstances, the only evidence available
before the court is the evidence of PW7. We have already held that the
evidence of PW7 is highly unreliable and the conviction cannot be
recorded based on the doubtful evidence of PW7. The trial Court
without considering all those circumstances, wrongly convicted the
appellants. We are of the considered opinion that the prosecution has
miserably failed to prove the case beyond any reasonable doubt and the
accused are entitled for acquittal.
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CRL.A(MD)No.544 of 2018
14.In the result, the Criminal Appeal is allowed and the conviction
and sentence imposed by the learned Principal Sessions Judge, Trichy, in
S.C.No.126 of 2017 dated 11.12.2018, is set aside and the appellants are
acquitted. The appellants/accused are directed to be released forthwith
unless their custody is required in any other case. Consequently,
connected miscellaneous petition is closed.
[V.B.D.,J.] & [J.N.B.,J.]
18.08.2021
Index : Yes / No
Internet : Yes / No
bala
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate / litigant
concerned.
To
1)The Inspector of Police,
Inspector of Police,
Siruganur Police Station,
Trichy District.
(Cr.No.172/2015)
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CRL.A(MD)No.544 of 2018
2)The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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CRL.A(MD)No.544 of 2018
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
bala
JUDGMENT MADE IN
CRL.A(MD)No.544 of 2018
DATED : 18.08.2021
https://www.mhc.tn.gov.in/judis/
