Madras High Court
R.Kaliappan vs State Represented By on 1 December, 2021
Crl.A.No.698 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mrs. Justice R.HEMALATHA
Crl.A.No.698 of 2018
R.Kaliappan .. Appellant/Accused No.2
Vs.
State represented by
The Inspector of Police,
B-3, Kattur Police Station,
Coimbatore District.
(Crime No.358/2013) .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
judgment and order dated 24.10.2016 passed in S.C.No.238 of 2015 on the
file of the I Additional District and Sessions Court, (Sessions Courts for
Trial of Bomb Blast Cases), Bomb Blast Cases (FAC), Coimbatore.
For Appellant : Mr.Radha Pandian
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
Page 1 of 14
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Crl.A.No.698 of 2018
JUDGMENT
(Delivered by P.N.PRAKASH, J.)
This criminal appeal has been filed against the judgment and order
dated 24.10.2016 passed in S.C.No.238 of 2015 on the file of the I
Additional District and Sessions Court, (Sessions Courts for Trial of Bomb
Blast Cases), Bomb Blast Cases (FAC), Coimbatore.
2. The prosecution story runs thus:
2.1 The deceased Murugan and his wife Selvi (PW1) were
construction workers at a construction site in Sivanandhapuram,
Coimbatore, during the relevant period. On 15.02.2013, they received
information that Murugan's brother was sick and therefore, they decided to
visit him. After completing their day's work, the couple went to
Sivanandhapuram bus stand to board a bus to Gandhipuram Central Bus
Stand for the purpose of taking a bus to Salem. At Sivanandhapuram bus
stand, Murugan felt hungry, but, Selvi (PW1) told him that she was not
hungry and therefore, Murugan went to a nearby Muniyandi Vilas hotel.
Selvi (PW1) was waiting outside the hotel and at that time, two persons viz.,
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Crl.A.No.698 of 2018
Kalidas (A1) and Kaliappan (A2) made snide remarks at her and courted
her, but, she did not bother to respond to them. After Murugan returned, the
couple boarded a bus to Gandhipuram Central Bus Stand and on reaching
there, they went to platform no.4 for boarding a bus to Salem. The time then
was around 10.30 p.m. Murugan made Selvi (PW1) sit in a bus that was
bound for Salem and went to a nearby shop to buy chips and water bottle.
While Murugan was away, Kalidas (A1) and Kaliappan (A2) entered the bus
and Kalidas (A1) openly made sexual advances to Selvi (PW1), but, she did
not respond. However, on seeing Murugan, the duo climbed down from the
bus, but, picked up a quarrel with Murugan. Kalidas (A1) asked Murugan as
to whose wife he has picked up and come, at which, Murugan got infuriated
and a quarrel ensued, in which, Selvi (PW1) also joined. Selvi (PW1) told
Murugan that it was these two persons, who had teased her near Muniyandi
Vilas in Sivanandhapuram. Murugan slapped Kalidas (A1) and at that time,
it is alleged that Kaliappan (A2) pushed Murugan and when Murugan fell,
Kalidas (A1) whipped out a knife and stabbed in his abdomen and
thereafter, Kalidas (A1) and Kaliappan (A2) fled. Selvi (PW1) made a hue
and cry, which attracted several people and one of them was Prakash (PW2),
who is an auto driver.
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Crl.A.No.698 of 2018
2.2 Murugan was taken in the auto-rickshaw of Prakash (PW2) to
the Government Hospital, Coimbatore, by Selvi (PW1), where,
Dr.Prasannakumar (PW11) examined Murugan at 11.05 p.m. on 15.02.2013
and noted a stab injury in his abdomen in the accident register copy (Ex-
P13).
2.3 Thereafter, Dr.Prasannakumar (PW11) sent an intimation (Ex-
P14) to the police and on receipt of the same, Mohanajothi (PW12), Sub-
Inspector of Police, came to the Government Hospital, Coimbatore and
recorded the statement (Ex-P1) of Selvi (PW1), based on which, he (PW12)
registered a case in B-3, Kattur Police Station Crime No.358 of 2013 on
16.02.2013 at 5.00 a.m. for the offence under Section 307 IPC against two
unknown accused and prepared the printed FIR (Ex-P15), which reached the
jurisdictional Magistrate at 5.00 p.m. on the same day.
2.4 Murugan succumbed to the injuries at 5.30 a.m. on 16.02.2013
and on receipt of the death intimation (Ex-P25), the case was altered from
one under Section 307 IPC to one under Section 302 IPC vide alteration
report (Ex-P26).
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2.5 Investigation of the case was taken over by Ravikumar
(PW16), Inspector of Police, who went to the place of occurrence and
prepared an observation mahazar (Ex-P9) and rough sketch (Ex-P24). He
(PW16) also conducted inquest over the body of Murugan in the
Government Hospital, Coimbatore and the inquest report was marked as Ex-
P27.
2.6 Autopsy on the body of Murugan was performed by
Dr.Kuzhandhaivel (PW4), who issued postmortem certificate (Ex-P4),
wherein, he has opined as under:
“Opinion: The deceased would appear to have died of stab
injury abdomen and its corresponding internal injuries and
its complications.”
2.7 While investigation was in progress, Kaliappan (A2)
surrendered before the Judicial Magistrate Court No.II, Tiruppur, on
18.02.2013 and Kalidas (A1) surrendered before the Judicial Magistrate
Court No.II, Madurai, on 04.03.2013.
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Crl.A.No.698 of 2018
2.8 On getting information about their surrender, the Investigating
Officer (PW16) took Kaliappan (A2) into custody on 26.02.2013 and based
on his confession statement (Ex-P11), recovered a bloodstained shirt
(M.O.5) under the cover of a mahazar (Ex-P12) in the presence of witnesses
Vijayababu (PW10) and Stephen (not examined).
2.9 Kalidas (A1) was taken into custody on 08.03.2013 and based
on his confession statement (Ex-P7), a bloodstained knife (M.O.1) and
bloodstained shirt (M.O.2) were recovered under the cover of a mahazar
(Ex-P8) in the presence of witnesses Muthukumar (PW5) and Loganathan
(not examined).
2.10 The Investigating Officer (PW16) also had the statements of
some of the witnesses recorded under Section 164 Cr.P.C.
2.11 At the request of the Investigating Officer (PW16), K.Lingam
(PW15), Judicial Magistrate No.IV, Salem, conducted a Test Identification
Parade for the witnesses Selvi (PW1), Prakash (PW2) and Rajendran (not
examined) to identify Kaliappan (A2) on 08.03.2013. In the Test
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Crl.A.No.698 of 2018
Identification Parade, Selvi (PW1) was able to identify Kaliappan (A2) only
in one round, whereas, Prakash (PW2) was able to identify Kaliappan (A2)
in all the three rounds.
2.12 After completing the investigation, the Investigating Officer
(PW16) filed a final report in P.R.C.No.21 of 2013 before the Judicial
Magistrate Court No.II, Coimbatore, against Kalidas (A1) and Kaliappan
(A2) for the offences under Sections 302 and 302 r/w 34 IPC.
2.13 On appearance of Kalidas (A1) and Kaliappan (A2), 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.238 of 2015 and was made
over to the I Additional District and Sessions Court, (Sessions Courts for
Trial of Bomb Blast Cases), Bomb Blast Cases (FAC), Coimbatore, for trial.
2.14 The trial Court framed a charge against Kalidas (A1) for the
offence under Section 302 IPC and a charge against Kaliappan (A2) for the
offence under Section 302 r/w 34 IPC. When questioned, the accused
pleaded 'not guilty'.
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Crl.A.No.698 of 2018
2.15 To prove the case, the prosecution examined sixteen witnesses
and marked twenty seven exhibits and five material objects.
2.16 When Kalidas (A1) and Kaliappan (A2) were questioned under
Section 313 Cr.P.C. on the incriminating circumstances appearing against
them, they denied the same. No witness was examined nor any document
marked on behalf of the accused.
2.17 After considering the evidence on record and hearing either
side, the trial Court, by judgment and order dated 24.10.2016 in S.C.No.238
of 2015, has convicted and sentenced Kalidas (A1) and Kaliappan (A2) as
under:
Accused Provision under Sentence
which convicted
Kalidas (A1) Section 302 IPC Life imprisonment and fine of
Rs.5,000/-, in default to undergo
three months simple imprisonment.
Kaliappan (A2) Section 302 r/w Life imprisonment and fine of
109 IPC Rs.5,000/-, in default to undergo
three months simple imprisonment.
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Crl.A.No.698 of 2018
2.18 Challenging the above conviction and sentence, Kalidas (A1)
filed Crl.A.No.55 of 2017 before this Court, which was heard by a Division
Bench of this Court and the same was dismissed on 03.03.2017. Thereafter,
Kaliappan (A2) has filed the present appeal with a delay of 83 days, which
was condoned by this Court.
3. Heard Mr.Radha Pandian, learned counsel for Kaliappan (A2)
and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor
appearing for the respondent/State.
4. The learned counsel for Kaliappan (A2) submitted that for
convicting Kaliappan (A2) for the offence under Section 302 r/w 109 IPC,
there should be some evidence to show that he (A2) has abetted the act of
Kalidas (A1), as defined under Section 107 IPC.
5. Selvi (PW1), in her evidence, has stated that on 15.02.2013,
she and her husband came to Sivanandhapuram bus stand for boarding a bus
to Gandhipuram Central Bus Stand; at that time, her husband felt hungry
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Crl.A.No.698 of 2018
and so, he went to Muniyandi Vilas, which was nearby; since, she was not
hungry, she waited outside; at that time, Kalidas (A1) and Kaliappan (A2)
came near her and made vulgar remarks, but, she did not respond to them;
after her husband returned, they both went to Gandhipuram Central Bus
Stand, where, her husband made her sit in a bus bound for Salem and went
to a shop to buy chips and water bottle; at that time, Kalidas (A1) and
Kaliappan (A2) came inside the bus and picked up a lewd conversation with
her; she turned her face; on seeing her husband, Kaliappan (A2) stated in
Tamil, the free translation of which is that, “let us go away, her husband is
coming”; however, when there were alighting from the bus, Kalidas (A1)
asked her husband in Tamil, the free translation of which is that,“whose
wife you have picked up and come”, which infuriated her husband and so,
he slapped Kalidas (A1); she also joined the quarrel and told her husband
that it was these two persons, who had teased her near Muniyandi Vilas.
However, Selvi (PW1) has stated that Kaliappan (A2) pushed Murugan and
thereafter, Kalidas (A1) whipped out a knife and stabbed him.
6. The learned counsel for Kaliappan (A2) submitted that except
the solitary statement of Selvi (PW1) that Kaliappan (A2) pushed her
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Crl.A.No.698 of 2018
husband Murugan, there is absolutely no other evidence to corroborate the
same. He took us through the evidence of Prakash (PW2) and Palanivel
(PW6), driver of the bus that was bound for Salem, who have corroborated
the evidence of Selvi (PW1) with regard to the quarrel that happened
between Murugan and Kalidas (A1); however, none of them has stated that
Kaliappan (A2) had pushed Murugan; even in the complaint (Ex-P1), Selvi
(PW1) had not stated that Kaliappan (A2) had pushed her husband down.
He further submitted that even if the entire testimonies of Selvi (PW1),
Prakash (PW2) and Palanivel (PW6) are accepted, what stands proved is
that, Kalidas (A1) and Kaliappan (A2) had teased Selvi (PW1) and on
seeing Selvi's (PW's) husband, Kaliappan (A2) wanted to flee and it was
Kalidas (A1), who had picked up a quarrel with Murugan and received a
slap from him and in retaliation, stabbed Murugan. It is his further
submission that there is absolutely no shred of evidence to show that
Kaliappan (A2) had instigated Kalidas (A1) to stab Murugan. We find
sufficient force in the above submission made by the learned counsel for
Kaliappan (A2). There is no evidence to show that Kaliappan (A2)
instigated Kalidas (A1) to attack Murugan nor is it the case of the
prosecution that the attack was pursuant to a conspiracy.
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Crl.A.No.698 of 2018
8. We were not able to find any evidence to sustain the charge
under Section 34 IPC, as Kaliappan (A2) only shared a common intention to
tease Selvi (PW1) and not to commit the murder of her husband Murugan.
Therefore, we find it difficult to sustain the conviction of Kaliappan (A2)
either with the aid of Section 109 IPC or with the aid of Section 34 IPC.
9. From the proved facts, Kaliappan (A2) could have been
convicted of the offence under Section 4 of the Tamil Nadu Prohibition of
Harassment of Women Act, 1998 (for brevity “the TNPHW Act”) or under
Section 354-A IPC, but, the maximum punishment for these penal
provisions is imprisonment for a period of three years, whereas, Kaliappan
(A2) has been in incarceration since 2016 and has spent almost five years in
prison.
10. In view of the foregoing:
i. The judgment and order dated 24.10.2016 passed in S.C.No.238 of
2015 on the file of the I Additional District and Sessions Court,
(Sessions Courts for Trial of Bomb Blast Cases), Bomb Blast Cases
(FAC), Coimbatore, is set aside as regards Kaliappan (A2) alone;
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Crl.A.No.698 of 2018
ii. Kaliappan (A2) is acquitted of the charge under Section 302 r/w 109
IPC framed against him;
iii. Fine amount, if any, paid by Kaliappan (A2), shall be refunded to
him; and
iv. Kaliappan (A2) shall be released forthwith, if he is not required in
any other case.
In the result, this criminal appeal stands allowed.
(P.N.P.,J.) (R.H.,J.)
01.12.2021
nsd
To
1.The I Additional District and Sessions Judge,
(Sessions Courts for Trial of Bomb Blast Cases),
Bomb Blast Cases (FAC), Coimbatore.
2.The Inspector of Police,
B-3, Kattur Police Station,
Coimbatore District.
3.The Superintendent of Prison,
Central Prison, Coimbatore.
4.The Public Prosecutor,
Madras High Court,
Chennai – 600 104.
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Crl.A.No.698 of 2018
P.N.PRAKASH,J.
and
R.HEMALATHA,J.
nsd
Crl.A.No.698 of 2018
01.12.2021
https://www.mhc.tn.gov.in/judis
