Madras High Court
Muniyasamy vs State Through on 25 August, 2021
Crl.A.(MD).No.208 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Crl.A.(MD).No.208 of 2018
1. Muniyasamy
2. Vijayakumar
3. Ananthan
4. Vivek ... Appellants /Accused Nos.1 to 4
-vs-
State through
the Inspector of Police,
Kenikarai Police Station,
in Crime No.91 of 2014. ... Respondent
PRAYER : Criminal Appeal is filed under Section 374 of Cr.P.C., to call for
the records in S.C.No.106 of 2016, on the file of the Additional Sessions
Judge, Ramanathapuram, dated 28.03.2018 and set aside the conviction and
sentence imposed against the appellants.
For Appellants : Mr.N.Ananthapadmanabhan
for M/s.APN Law Associates
For Respondent : Mr.S.Ravi
Standing counsel for the State
1/25
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Crl.A.(MD).No.208 of 2018
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN,J.)
The appellants are the accused Nos.1 to 4 in S.C.No.106 of 2016,
on the file of the Additional Sessions Judge, Ramanathapuram and they
stood charged and tried for the commission of the offences under Sections
148, 294(b), 341, 302 r/w. 149, 307, 307 r/w. 149 of I.P.C.
2. The trial Court, vide impugned judgment dated 28.03.2018, has
convicted the appellants herein for the above said offences and imposed the
sentences, thus:
Accused Conviction Sentence
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To undergo simple imprisonment for a period of
U/s. 148 of 2 years and to pay a fine of Rs.1000/-, in
I.P.C. default to undergo simple imprisonment for a
period of six months.
To undergo simple imprisonment for a period of
one month and to pay a fine of Rs.500/-, in
U/s. 341 of
default to undergo simple imprisonment for a
I.P.C.
Accused period of seven days.
No.1
To undergo life imprisonment and to pay a fine
U/s.302 of
of Rs.50,000/-, in default to undergo simple
I.P.C
imprisonment for a period of three years.
To undergo rigorous imprisonment for a period
U/s. 307 r/w. of seven years and to pay a fine of
149 of I.P.C Rs.10,000/-, in default to undergo simple
imprisonment for a period of one year.
Accused Conviction Sentence
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To undergo simple imprisonment for a period of
U/s. 148 of 2 years and to pay a fine of Rs.1000/-, in
I.P.C. default to undergo simple imprisonment for a
period of six months.
To undergo simple imprisonment for a period of
one month and to pay a fine of Rs.500/-, in
U/s. 341 of
default to undergo simple imprisonment for a
I.P.C.
Accused period of seven days.
No.2
To undergo life imprisonment and to pay a fine
U/s.302 r/w
of Rs.25,000/-, in default to undergo simple
149 of I.P.C
imprisonment for a period of two years.
To undergo rigorous imprisonment for a period
U/s. 307 of of ten years and to pay a fine of Rs.25,000/-, in
I.P.C default to undergo simple imprisonment for a
period of two years.
Accused Conviction Sentence
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To undergo simple imprisonment for a period of
U/s. 147 of one year and to pay a fine of Rs.1000/-, in
I.P.C. default to undergo simple imprisonment for a
period of one month.
To undergo simple imprisonment for a period of
one month and to pay a fine of Rs.500/-, in
U/s. 341 of
default to undergo simple imprisonment for a
I.P.C.
Accused period of seven days.
No.3
To undergo life imprisonment and to pay a fine
U/s.302 r/w
of Rs.10,000/-, in default to undergo simple
149 of I.P.C
imprisonment for a period of one year.
To undergo rigorous imprisonment for a period
U/s. 307 r/w. of five years and to pay a fine of Rs.5,000/-, in
149 of I.P.C default to undergo simple imprisonment for a
period of one year.
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Crl.A.(MD).No.208 of 2018
Accused Conviction Sentence
To undergo simple imprisonment for a period of
U/s. 147 of one year and to pay a fine of Rs.1000/-, in
I.P.C. default to undergo simple imprisonment for a
period of one month.
To undergo simple imprisonment for a period of
one month and to pay a fine of Rs.500/-, in
U/s. 341 of
default to undergo simple imprisonment for a
I.P.C.
Accused period of seven days.
No.4
To undergo life imprisonment and to pay a fine
U/s.302 r/w
of Rs.10,000/-, in default to undergo simple
149 of I.P.C
imprisonment for a period of one year.
To undergo rigorous imprisonment for a period
U/s. 307 r/w. of five years and to pay a fine of Rs.5,000/-, in
149 of I.P.C default to undergo simple imprisonment for a
period of one year.
The appellants/accused are entitled to set off the period of
imprisonment if any already undergone U/s.428 of Cr.P.C. Now, challenging
the conviction and sentence, the present appeal has been filed. Totally, there
are five accused in this case and A5 is a juvenile and the case has been split
up against A5 and A1 to A4 were faced the trial.
3. The case of the prosecution in brief is as follows:
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The deceased Nagaraj is the husband of P.W.12. A1 to A3 are
brothers and A4 is brother-in-law. Sometimes before the occurrence,
A2/Vijayakumar in this case married the daughter of the deceased's sister
against her parents wish. Hence, there was an enmity between the accused
family and the deceased family. That apart, consequently, in a temple
festival, once again there was a quarrel between the parties. On 03.03.2014,
there was a marriage at Munusuvalasai Village, in which both the deceased
and A1 to A4 were attended. In the said marriage, there was a quarrel
between them. After that, the deceased and P.W.1, who is his friend along
with one Packiyaraj returned back to his village. While P.W.1 and Packiyaraj
stopped his bike near a petty shop, the deceased returned back to the
marriage ....house. At the time, A2 and A4 came in a bike and quarrelled
with the deceased. Thereafter, A1, A3 and A5 Kannan came and joined with
the quarrel. During the quarrel, A2 attacked P.W.1 with iron pipe in his
neck. A1 attacked the deceased with knife in his hip. A2 attacked the
deceased with iron rod on the head then get away from the scene of
occurrence. The occurrence was took place on 03.03.2014 at 3.00 p.m., and
the deceased was taken to the Government Hospital, Ramnad in 108
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Ambulance, where P.W.4, Doctor, declared his dead. Thereafter, P.W.1 was
admitted in the Government Hospital, Ramanathapuram at about 9.45 p.m.
and P.W.3, Assistant Doctor issued the Accident Register Ex.P2. P.W.20,
Sub Inspector of Police working in the respondent police station on receipt
of intimation from the Government Hospital, Ramnad, went to the hospital
at about 7.30 p.m., and recorded the statement of P.W.1. and based on the
same, she registered an F.I.R in Crime No. 91 of 2014, for the offences
under Sections 147, 148, 341, 294(b), 324 and 302 of I.P.C. and prepared
the F.I.R. and sent the same to the concerned judicial Magistrate and also to
the higher officials. P.W.21, Inspector of Police in the respondent police
station after receipt of the F.I.R., has commenced the investigation and
visited the scene of occurrence at about 9.00 p.m., and prepared the
Observation Mahazar and also Rough Sketch, Ex.P16. He also collected red
soil, ordinary soil and recovered deceased's two wheeler and also recorded
the statement of P.W.1 and other witnesses. Thereafter, on 04.03.2014, at
about 7.00 a.m., he conducted inquest on the dead body of the deceased in
the presence of Panchayatars and prepared the Inquest Report Ex.P.17 and
sent the body to postmortem. P.W.15, Doctor working at Government
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Hospital, Ramnad, conducted a postmortem autopsy on the dead body and
given a postmortem report Ex.P.10, stating that the death was occurred
because of shock and haemorrhage due to ... multiple vital organs. P.W.21,
Inspector of Police, has completed the investigation on 04.03.2014 at about
3.00 p.m., and arrested the accused Nos.1 and 5 and A1 was come forward
to give a confession statement and P.W.21 was recorded the same in the
presence of Village Administrative Officer, P.W.14 and also recovered the
two wheeler and iron pipe (M.Os.2 and 3). On the same day at about
6.30.p.m., he arrested A2 and A4 and also recorded their statement and they
have also given a voluntary confession. Based on the admissible portion, he
recovered iron pipe, M.O.3 and also the two wheeler used by them M.O.2
and sent the material objects to the Judicial Magistrate Court, as per Form
95. Thereafter, he recorded the statement of the Doctors and after
completion of the investigation, it was handed over to P.W.22. P.W.22,
Inspector of Police continued the investigation and filed a final report. In
the meanwhile, A3, who was said to have injured in the same occurrence,
was admitted in the Government Hospital, Ramnad, on 03.03.2014, at about
8.20 p.m., with two stab injuries in the thigh and knee and D.W.3, Doctor
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working in the Government Rajaji Hospital, Madurai issued the accident
register Ex.D6. Once again, A3 was admitted in the Government Hospital,
Ramnad on 11.03.2014 for further treatment and discharged on 26.03.2014.
Thereafter, he was treated in the private hospital. Then he was arrested on
05.05.2014 and remanded to judicial custody.
Based on the above materials, the trial Court framed the charges
against the accused as mentioned above. However, the appellants/accused
Nos.1 to 4 have denied the same. The prosecution, in order to sustain their
case, examined 22 witnesses, marked 21 documents and also produced 5.....
material objects. On the side of the defence, examined 3 witnesses, marked
6 documents.
Out of the witnesses examined, P.W.1 is eyewitness to the occurrence
and he is a friend of the deceased and also the author of the F.I.R. According
to him, on the date of occurrence, both the deceased and P.W.1 attended the
marriage along with one Packiyaraj at Munusuvalasai Village and after the
marriage, they returned back to Anthel Village and while P.W1 and
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Packiyaraj standing near a petty shop for purchasing cigarette, the deceased
returned back to the marriage. At that time, A2 and A4 came in a two
wheeler and waylaid the deceased and quarrelled with him. Immediately,
A1, A3 and A5 joined with them and there was a quarrel between the
parties. At that time, A1 stabbed the deceased with knife in his hip and A2
attacked the deceased with iron rod on his head and also attacked P.W.1
with iron rod on his head.
P.W.2 is the another eyewitness to the occurrence, who is also the
friend of the deceased and he has spoken about the prior motive between the
parties. According to him, A1 and A2 attacked the deceased with iron rod
and A1 attacked the deceased with knife in the abdomen. At that time, A2,
A3 and A4 were also present. In the same occurrence, P.W.1 was also
suffered injury, as A2 attacked him with iron rod and also identified M.O.3
iron rod and M.O.4 knife.
P.W.3 is the Doctor working in the Government Hospital treated P.W.
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1, on 03.03.2014 at about 9.45 p.m., and find that there are three lacerated
injuries stitches reveals in his neck and he admitted him in the hospital and
issued an Accident Register Ex.P.2.
P.W.4 is the Doctor working in the Government Hospital,
Ramanathapuram, received the body of the deceased at about 3.45 p.m., on
03.03.2014 and declared that the deceased was brought dead and issued the
accident register Ex.P3.
P.Ws.5 to 9, who are all neighbours and all of them turned hostile.
P.W.11 is the brother of the deceased and he speaks about the motive
that A2 married the daughter of the deceased's sister and hence, there was an
enmity between the deceased family and the accused family. Subsequently,
in a temple festival also, A1 attacked one Sathishwaran and the deceased
admitted him in the hospital. Hence, it is further aggravated their enmity.
P.W.12 is the wife of the deceased. She also spoke about the motive of
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the occurrence that she saw the deceased after the occurrence and took him
in 108 Ambulance.
P.W.13 is the wife of P.W.1, she known to the accused and she is a
hearsay witness.
P.W.14 is the Village Administrative Officer, a witness to the
confession of A1 and also recovery of M.Os.4, 5 and 6.
P.W.15 is the Doctor working in the Government Hospital, Ramnad
and he has conducted postmortem autopsy in the dead body and given a
postmortem report Ex.P.10, which reveals as follows:
........................................................................
P.W.16 is the Scientific Officer working in Forensic Lab,
Ramanathapuram and he received Material Objects and sent for chemical
examination.
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P.W.17, neighbour, he known to the deceased and he is the witness to
the Observation Mahazar and he turned hostile.
P.W.18, Head Constable working in the respondent police station. He
identified the body of the deceased to the Doctor for postmortem autopsy
and received the dresses worn by the deceased and handed over to the
investigating officer.
P.W.19 is the Head Constable and he has handed over the F.I.R. and
the complaint to the Judicial Magistrate No.II, Ramanathapuram and higher
officials.
P.W.20 is the Sub Inspector of Police working in the respondent
police station on receipt of intimation from the Government Hospital,
Ramnad, at about 7.30 p.m., he went to the hospital and recorded the
statement of P.W.1. Based on that, he registered an F.I.R. at about 8.00 p.m.
and sent the same to the concerned Judicial Magistrate Court.
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P.W.21 is the Investigating Officer, who conducted an inquest and
recovered the Material Objects and also recorded the statement of the
Doctors and handed over the case files in the police station and he was
transferred.
P.W.22 is the Sub-Inspector of Police, who conducted an investigation
and on completion of the investigation, he filed a final report and three
Doctors were examined as D.Ws.1 to 3and marked 6 documents.
D.W.1 is the Doctor working in the Government Hospital, Ramnad,
who admitted P.W.1 and through him, they have marked Ex.D1, the Case
Diary. D.W.2 is the another Doctor working in the Government Rajaji
Hospital, who admitted A3, on 11.03.2014 and issued the Accident Register
Ex.D3 and D4.... and the Medical Report Ex.D5. D.W.3 is the Doctor
working in the Government Hospital, Ramnad and A3 was admitted in the
hospital on 03.03.2014 at about 8.20 p.m., and he found two stab injuries on
his thigh and knee and he issued an Accident Register Ex.D6.
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Considering the above materials, the trial Court convicted the accused
and sentenced them as stated above. Now, challenging the same, the present
appeal has been filed.
Mr.N.Ananthapadmanabhan, learned counsel appearing for the
appellants would submit that the prosecution has suppressed the arguments
of the case and according to him, in the same occurrence, A3 has also
suffered injury and he was admitted in the Government Hospital at about
8.30 20 p.m., on the very same day. Once again he was admitted in the
Government Rajaji Hospital, through police on 11.03.2014 and he was taken
treatment till 26.03.2014, but the injuries on the accused that was suffered
suppressed by the prosecution. That apart, there was a lot of material
contradiction in P.W.'s evidence. That apart, serious doubt regarding the
registration of F.I.R. From the evidence of P.W.3 and Ex.P.2, it could be
seen that P.W.1 was admitted in the hospital at about 9.45 p.m., on
03.03.2014.
According to P.W.20, on receipt of intimation from the Government
Hospital, Ramnad, she recorded the statement of P.W.1 at 7.30 p.m. P.W.1
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was admitted in the hospital only at 9.45 p.m. and there cannot be any
occasion for him to give a statement in the hospital at about 7.30 p.m. That
apart, even though the F.I.R. was registered at 8.00 p.m., the same was
received by the concerned judicial Magistrate only on the next day at 10.30
a.m. The Judicial Magistrate Court is situated in the very same compound,
which clearly shows that there is a likelihood of false implication.
According to the learned counsel, the presence of P.Ws.1 and 2 is highly
doubtful. According to P.W.1, he was attacked by A2 by iron rod, but P.W.3,
Doctor found that three stichered wound, which shows that before he
admitted in the Hospital, he already taken treatment to some other place.
That is also supported by the prosecution and P.W.2 is a known criminal and
having so many criminal cases against him and there is no occasion for him
to present at the scene of occurrence. According to P.W.2, only A1 and A2
were present at the scene of occurrence. He has not spoken about the .....
suspicion and there is a false implication in this case. The learned counsel
further submitted that for the motive, neither the sister of the deceased nor
the daughter has been examined and the neighbours, who said to have
present at the scene of occurrence P.Ws.5 to 10 and 17 were turned hostile.
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The trial Court, without considering all these evidences, disbelieving the
evidence of P.W.1, convicted the accused.
..............................................
Mr.S.Ravi, learned Standing counsel appearing for the State would
submit that there are two eyewitnesses in this occurrence. P.W.1 is injured
and both of them clearly and consistently stated that all the four accused
waylaid the deceased and A1 and A2 attacked the deceased with iron pipe
over the head and A2 attacked him with the knife in the head and caused
injuries. That apart, A2 also attacked P.W.1 with the same iron rode and
caused injuries. On the same day, he was admitted in the hospital,
fromwhere he statement clearly implicated all the five accused as both the
deceased and P.W.1 attending the marriage together. Hence, the presence of
P.W.1 cannot be doubtful. He further submitted that P.W.2 is also known to
the deceased. He has also clearly stated that only A1 and A2 attacked the
deceased with the knife and A2 attacked P.W.1 with iron rod. That apart, the
medical evidence also clearly corroborated the evidence of eyewitnesses
and the occurrence has taken place only at ....... and the F.I.R., was
registered at 5.00 p.m. and the delay was properly explained by the
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prosecution case. Merely because the delay in filing the F.I.R, it cannot be a
ground to disbelieve the prosecution case.
The learned Standing counsel further submitted that the motive for
the occurrence has been clearly stated by P.W.11 and 12, who are the
brothers of the deceased. Considering all these facts and circumstances of
the case, the trial Court has rightly convicted all the accused and there is no
reason to interfere with the same.
We have heard the learned counsel for the appellants and the learned
Standing counsel appearing for the respondent and perused the materials
available on record.
The primordial contention of the learned counsel for the appellants is
that the origin and genuineness of the case has been suppressed by the
prosecution. According to him, one of the accused viz., A3 in this case also
suffered stab injury in the leg and it has been suppressed by the prosecution.
To prove the same, they have examined the Doctors. D.W.2 is the Doctor
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working in the Government Hospital, Ramnad and he admitted A3 and
given treatment. D.W.3 is the Doctor working in the Government Hospital,
Ramnad. According to him, on 03.03.2013, at about 8.20 p.m., A3 was
admitted in the hospital and on examination, he found that two stab injuries,
one in the left thigh measuring 6 x 4 x 2 cm. and another stab injury in the
knee 3 x 2 x 2 cm. and was admitted him in the hospital and also issued
Accident Register Ex.D6. A perusal of Ex.D6, Accident Register, it is seen
that he was admitted at about 8.20 p.m. and at that time, he has stated that
15 known members attacked him with knife and two stab injuries on the
thigh and the above knee was also found. Ex.D2, the another accident
register issued by the private hospital at Ramanathapuram, wherein it is
stated that A3 was admitted there on 04.03.2014 at about 8.00 p.m. It is also
seen that subsequently, on 05.03.2014, the A3 was arrested and remanded to
judicial custody. Once again A3 developed some complication, he was
taken to Government Rajaji Hospital, Madurai and D.W.2, the Doctor
admitted him and issued the accident register Ex.D5. A perusal of Ex.D5, it
could be seen that A3 taken treatment in the Government Rajaji Hospital
on............ and finally, he was discharged on 26.03.2014. Hence, it is seen
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that he was taken treatment nearly 15 days.... in the Government Rajaji
Hospital. Even though D.W.3 has given accident register it is mentioned
injury in simple injury, but considering the treatment taken by the petitioner
A3 for more than 15 days in the Government Hospital and the injury
suffered by him is the stab injury, it cannot be considered as a simple injury.
As rightly contented by the learned counsel appearing for the appellant that
the injury on the accused viz., A3 has been suppressed by the prosecution
and P.W.1 has simply stated that he has sustained injury.
That apart, the next contention of the learned counsel for the appellant
that the suspicion regarding the registration of the F.I.R. From the evidence
of D.W.3 Doctor, it is seen that he admitted that P.W.1 was taken to hospital
on 03.03.2014 at about 9.45 p.m., and he admitted the same in the Accident
Register Ex.A2 and at that time, he found that he had three stichered injury
in the head. But, according to P.W.20, the Sub Inspector of Police received
the intimation from the Government Hospital, Ramand and after intimation
to the Government Hospital, Ramnad, he went to the hospital and recorded
the statement at about 7.30 p.m on 03.03.2014 and based on that, he
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registered the F.I.R at 8.00 p.m. It is contrary to the evidence of P.W.3 and
D.W.3, Doctor, when P.W.1 admitted in the hospital at 9.45 p.m.,
there is no occasion for him to give a statement in the hospital at 7.30 p.m.
That suspicion is confirmed. That apart, even though the F.I.R said to have
been registered at 8.00 p.m., it reached the Judicial Magistrate Court only on
the next day at abut 10.00 a.m. P.W.19, Head Constable to the F.I.R. clearly
stated that the Judicial Magistrate Court is situated within the 5 minutes
distance from the police station and the delay in sending the F.I.R was also
not sustained the prosecution with added more strengthern suspicion.
Further, from the evidence of P.W.2, it is seen that this suspicion further
strengthern from the evidence of P.W.2, who was clearly stated that he has
seen only A1 to A3 at the scene of occurrence. He did not spoke about the
presence of A4 and A5. Hence, we are of the considered view that there is a
liklihood of embellishment and also a false implication in this case. Ex.P6
P2 and P10 the only cut injuries found in Ex.P10 postmortem report. It is
seen that only the deceased suffered the cut injury in the head and it cannot
be caused by M.O.4 iron pipe.
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That apart, Ex.P6 Accident Register clearly shows that A1 has
suffered a cut injury. That apart, at the time of admission in the hospital,
P.W.3 found stitchers wound in his head, which shows that already before
he admitted in the hospital, he already taken a treatment somewhere else
that is not support the prosecution case. That apart, it is also admitted that
P.W.1 is the of deceased and interested witness. Likewise, P.W.6
also the close friend of the deceased and there are lot of material
contradictions between the evidence of P.Ws.1 and 2 which also created a
doubt regarding the presence of P.W.2 at the scene of occurrence.
Considering all these materials, we are of the considered view that the
prosecution has failed and the failure on the part of the prosecution is
explained the injury sustained by the accused. Failure to explain by A3
doubt that the prosecution has suppressed all the origins and genuineness of
the case. That apart, the registration of F.I.R. is also the delay at the time of
registration of the F.I.R and considering the evidence of P.Ws.1 and 2
regarding the registration of F.I.R. further creates a strong suspicion. Thus,
the F.I.R is not ante date and there is a likelihood of the consolidation and
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false implication on the accused. This also supported by the evidence of
P.W.2 where he stated only A1 to A3.
Considering all these circumstances, we are of the considered view
that the prosecution has failed to prove the case of the accused beyond any
reasonable doubt. Hence, we are of the view that the accused convicted the
accused, based on the doubtful evidence of P.Ws.1 and 2. Hence, the
accused are acquitted and the conviction and sentence is imposed is set
aside and the accused are acquitted.
[V.B.D.,J.] & [J.N.B.,J.]
16.08.2021
Index : Yes / No
Internet : Yes / No
akv
V.BHARATHIDASAN,J.
and
J.NISHA BANU,J.
akv
Note :
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Crl.A.(MD).No.208 of 2018
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 Sessions Court,
Kanyakumari District,
@ Nagercoil.
2.The Inspector of Police,
Iraniyal Police Station,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
JUDGMENT MADE IN
Crl.A.(MD).No.321 of 2018
16.08.2021
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