Madras High Court
Nambirajan vs State Represented By on 8 December, 2021
Crl.A.(MD) No.381 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A.(MD) No.381 of 2018
Nambirajan ... Appellant
-vs-
1.State represented by
the Inspector of Police
Veeravnallur Police Station
Thirunelveli District
(In Crime No.140/2013)
2.M.Anantharaj
3.Ilayaraja
4.S.Surendren
5.M.Prabhakaran
6.H.Hariramsait
7.P.Kasidurai
8.S.Suman
9.C.Abimannan
10.M.Raja @ Maharaja @ Sureshraja
11.P.Chintha @ Chithamparam
_______________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
12.P.Ganesan
13.Sekar
14.Magesh @ Mageswaran ... Respondents
PRAYER: Appeal filed under Section 372 of the Code of Criminal Procedure,
1898, to call for the records in Sessions Case No.267 of 2014, dated
03.08.2017, on the file of the learned 4th Additional Sessions Judge at
Thirunelveli and set aside the same as illegal.
For Appellant : Mr.D.Balamrugapandi
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor for R1
R3 – Died
Mr.A.Haja Mohideen
Legal Aid Counsel for R2, R4 to R14
JUDGMENT
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
This criminal appeal is directed against the order dated 03.08.2017
passed in S.C.No.267 of 2014, whereby the Trial Court, after considering the
evidence let in by the prosecution, found that the prosecution has not proved
the guilt of the accused for committing the death of one Vellapandi and
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
acquitted them. Being aggrieved by the order of acquittal, P.W.1 / first
informant has preferred this criminal appeal.
2. Facts of the case in nutshell:
2.1. This is a case of retaliatory murder. There was long-
standing fend between two groups one led by Kombiah and another
led by Prabhakaran. The deceased in this case is the husband of
Kombiah's sister. On 12.05.2013, at about 06.30 p.m., when the
deceased was walking along the canal road, he was brutally
attacked by the accused persons with deadly weapon and fleed
away. The criminal law was set in motion based on the complaint
given by P.W.1, which was registered by P.W.14 and taken up for
investigation. Subsequently, on the complaint given by P.W.1 to
the higher officials, investigation was entrusted to the Deputy
Superintendent of Police, Tirunelveli, who completed the
investigation and filed the final report. Out of 15 accused, one was
juvenile and another was murdered before facing trial.
2.2. Based on the final report, The Trial Court framed the
following charges against the accused:
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
Charge Penal Provisions Accused
1. 120-B I.P.C. A3 to A7
2. 148 I.P.C. A1 to A13
3. 341 I.P.C. A1 to A13
4. 294(b) I.P.C. A4
5. 302 I.P.C. A1 to A4, A6, A8 & A9
302 r/w 149
6. A5, A7, A10 & A11 to A13
I.P.C.
2.3. Since the accused denied the charges, they were
subjected to trial.
2.4. To prove the case, the prosecution examined 21
witnesses, marked 50 documents and 19 material objects. On the
side of the accused, no evidence was let in and one document was
marked.
2.5. The Trial Court, after appreciating the evidence,
rendered the verdict of not guilty.
3. The learned counsel appearing for the appellant would specifically
submit that the Trial Court erred in rejecting the evidence of P.W.1, who has
spoken about the overt act of the respective accused, which is tallied with the
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
injuries found in the dead body and corroborated by the Postmortem Doctor
(P.W.12). Further, the learned counsel would submit that the Trial Court
ought not to have considered the 164 Cr.P.C. statement of one Mariappan,
who was not testified before the Court. It is the specific plea of the appellant
that the contradictions between the previous statement of P.W.1 recorded by
the learned Judicial Magistrate and his deposition was because of the
subsequent Investigating Officer, who misled the witness to say a contrary
statement before the learned Judicial Magistrate when his 164 Cr.P.C.
statement was recorded and therefore, the contradictions ought not to have
been stood in the way of convicting the accused against whom P.W.1 has
cogently attributed overt acts and his presence in the scene of occurrence has
not been impeached.
4. The learned counsel for the appellant would further submit that
the Trial Court ought to have considered the first information report and the
testimony of P.W.1, which are specifically corroborated by P.W.2 in respect of
the overt act of the accused. The observation of the Trial Court that the
evidence placed before the Court is mixed with false and truth, inseparable
and therefore, benefit of doubt has to be extended to the accused, is contrary
to the facts and circumstances of the present case. The first information
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
report and the evidence of P.Ws.1 and 2, coupled with the recovery of weapon,
based on the confession statement of Raja @ Maharaja (A9), which has been
corroborated by the independent witness to the seizure mahazar, namely, P.W.
5 – Vellapandi, were totally overlooked by the Trial Court leading to acquittal
of all the accused.
5. The learned Additional Public Prosecutor would submit that the
evidence of P.W.1, though it was overstated, but not wholly unreliable and in
the light of the evidence of P.W.2, who had deposed that he saw the accused
persons fleeing away from the scene of occurrence, if taken into consideration
and applied the principle of removing the grain from the chaff, the guilt of the
accused gets established.
6. The Legal Aid Counsel appearing for the accused / respondents
would submit that the very presence of P.W.1 is highly doubtful since his case
has not been corroborated by P.W.2 while he gave his previous statement
before the learned Judicial Magistrate and recorded under Section 164 Cr.P.C.
Further, there is a discrepancy in the prosecution case regarding where the
dead body was lying and its position. In the cross-examination, the falsehood
of P.W.1 witnessing the occurrence has been established by showing the
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
photograph of the deceased person. The learned counsel would further
submit that the enmity between the two groups has prompted P.W.1 to rope
all the family members in the first information report, which is collection of
falsehood and embellishment.
7. Heard the learned counsel for the appellant, learned Additional
Public Prosecutor for the State and the Legal Aid Counsel appearing for the
accused / respondents.
8. On perusal of the testimony of the witnesses and the Judgment of
the Trial Court, this Court concurs with the view of the Trial Court that the
falsehood and truth in the case of the prosecution are intertwined and mixed
up inseparable, particularly, when P.W.1, in his complaint (Ex.P1) and his
deposition has specifically stated that at the time of the occurrence, the
deceased Vellapandi was going ahead of them and he along with Murugan
(P.W.2) and Mariappan (not examined) were following the deceased Vellapandi,
P.W.2 – Murugan, in his statement before the learned Judicial Magistrate had
stated that he came to the scene of occurrence on hearing the cry of P.W.1 and
he did not see the occurrence. However, later, in his deposition before the
Court, P.W.2, in contradiction to his previous statement given under Section
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
164 Cr.P.C., has improvised and embellished his version. The overstatement
and embellishment of P.W.1 and P.W.2 quite contrary to their respective
previous statement recorded under Section 164 Cr.P.C., do not inspire the
confidence of this Court as it not inspired the confidence of the Trial Court.
The law is well settled that when two reasonable views are possible, the view
in favour of the accused has to be taken into account for his acquittal. On
following the said principle, as the Appellate Court, we do not find any
omission or unreasonable in appreciation of evidence by the Trial Court.
Hence, its order of acquittal is liable to be confirmed. Except to point out the
error of the Trial Court relying the previous statement of the witness
(Mariappan) recorded under Section 164 Cr.P.C., for contradiction, under
Section 156 of the Evidence Act, 1872, when in fact the said Mariappan not
given any testimony in this case during trial.
9. In the result,
➢ the criminal appeal is dismissed;
➢ the Judgment, dated 03.08.2017, passed in S.C.No.267
of 2014, by the learned IV Additional Sessions Judge,
Tirunelveli, is confirmed;
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
➢ We place on record our appreciation to Mr.A.Haja
Mohideen, learned counsel, for assisting us in this case
and we direct the High Court Legal Services Committee,
Madurai, to pay him a sum of Rs.15,000/- (Rupees
fifteen thousand only) for the service he recorded.
[S.V.N., J.] [G.J., J.]
08.12.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the Judgment may be utilized for official
purposes, but, ensuring that the copy of
the Judgment that is presented is the
correct copy, shall be the responsibility
of the advocate / litigant concerned.
krk
To:
1.The IV Additional Sessions Judge,
IV Additional Sessions Court, Thirunelveli.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
3.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.381 of 2018
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
krk
Crl.A.(MD) No.381 of 2018
08.12.2021
_______________
https://www.mhc.tn.gov.in/judis
