Madras High Court
Billa @ C.Periyasamy vs State Represented By on 26 October, 2021
Criminal Appeal No.779 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS. JUSTICE S.SRIMATHY
Criminal Appeal No.779 of 2015
Billa @ C.Periyasamy
S/o.Venkatesan .. Appellant
Vs.
State represented by
Inspector of Police,
Ulundurpet Police Station,
Villupuram District.
Crime No.612 of 2010 .. Respondent
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 30.11.2015 passed in S.C.No.251 of
2012 on the file of III Additional Sessions Court, Villupuram at
Kallakurichi.
For Appellant : Mr.S.Saravana Kumar
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
*****
1/10
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Criminal Appeal No.779 of 2015
JUDGMENT
[Judgment of the Court was delivered by S.SRIMATHY, J]
This criminal appeal is directed against the judgment of conviction
and sentence dated 30.11.2015 passed by the III Additional Sessions Court,
Villupuram, Kallakurichi, in S.C.No.251 of 2012.
2. The prosecution story runs thus:
2.1. Sankar (deceased), who, at the time of the incident, was 47 years
of age and was living with his wife Iyayiram [PW-1] and his father
Ramasamy [PW-3] in Kurumbur village in Kallakurichi. Ramar [A1] and
Billa [A2] were also from the same village. It appears that a quarrel ensued
between the families of Billa [A2] and that of Sankar in connection with the
festivities in the local Mariamman temple, in which, a police case was
registered against Billa [A2] on the complaint given by Sankar. This being
the motive, on 01.11.2010, around 05.00 p.m. while Sankar was returning
home, he was accosted by Ramar [A1] and Billa [A2] near the Mariamman
temple, they picked up a quarrel with him, and Ramar [A1] strangulated
Sankar with a nylon rope [MO-1] and Billa [A2] kicked Sankar on his chest.
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Criminal Appeal No.779 of 2015
One Ilayaraja [PW-2] and Sundaram [not examined] of the same village
intervened, separated them and brought Sankar to his house and left him
with his wife Iyayiram [PW-1]. Sankar asked for water to drink and by the
time it was served, he is said to have died on the same evening. On the next
day i.e. 02.11.2010, Iyayiram [PW-1] lodged a written complaint [Ex.P1],
based on which, a case in Ulundurpet P.S.Crime No.612 of 2010 was
registered on 02.11.2010 u/s.302 IPC against Ramar [A1] and Billa [A2].
2.2. Elangoven [PW-13], Inspector of Police [hereinafter referred to
as 'the Investigating Officer'], took over the investigation of the case, went
to the place of occurrence and prepared an observation mahazar [Ex.P3] and
a rough sketch [Ex.P2]. The Investigating Officer [PW-13] conducted
inquest over the body of Sankar. The inquest report was marked as Ex.P10.
2.3. Thereafter, the body was sent to the Government Hospital,
Ulundurpet, for postmortem where Dr.Ganesh [PW-12] performed autopsy
on the body of Sankar and issued the postmortem certificate [Ex.P8].
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Criminal Appeal No.779 of 2015
Dr.Ganesh [PW-12], in his evidence as well in the postmortem certificate
[Ex.P8], has stated that, he found a ligature mark around the neck. He did
not find any injuries on the chest. The sample of the visceral organs were
sent to the Tamil Nadu Forensic Sciences Department. The Chemical
Analysis Report [Ex.P6] disclosed that neither alcohol nor poison was
detected in any of them. After receipt of the Viscera Report [Ex.P9],
Dr.Ganesh [PW-12] gave his final opinion as to the cause of death, which is
as under:
'Final Opinion: The deceased appears to have died of asphyxia due
to the ligature in the neck 24 to 36 hours prior to pm.'
2.4. After examining the witnesses and collecting the various reports
of the experts, the Investigating Officer [PW-13] completed the
investigation and filed a final report in P.R.C.No.9 of 2011 in the Court of
District Munsif-cum-Judicial Magistrate I, Ulundurpet, for the offence
u/s.302 IPC, against Ramar [A1] and Billa [A2].
2.5. On appearance of the accused, the provisions of Section 207
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Criminal Appeal No.779 of 2015
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.251/2012 and was made over to the III Additional
Sessions Court, Villupuram, Kallakurichi, for trial. The trial Court framed a
charge u/s.302 IPC against the accused and when questioned, the accused
pleaded 'not guilty'.
2.6. To prove the case, the prosecution examined 13 witnesses and
marked 13 exhibits and 1 material object. Before the accused were
examined u/s.313 Cr.P.C., Ramar [A1] died on 17.07.2015 and therefore, the
trial proceeded only against Billa [A2]. When the appellant was questioned
u/s.313 Cr.P.C. on the incriminating circumstances appearing against him,
he denied the same. No witness was examined from the side of the appellant
nor any document marked.
2.7. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 30.11.2015 in S.C.No.251 of
2012, convicted the appellant for the offence u/s.323 IPC for kicking Sankar
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Criminal Appeal No.779 of 2015
and sentenced him as follows :
Provision under Sentence
which convicted
Section 323 IPC One year simple imprisonment and fine of
Rs.1,000/-, in default, to undergo three months
simple imprisonment.
3. Challenging the conviction and sentence, the appellant filed the
present appeal, which came up before a learned single Judge, who, in turn,
forwarded the case to this Bench for disposal.
4. Heard Mr.S.Saravana Kumar, learned counsel for the appellant and
Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, appearing
for the respondent State.
5. Though the complaint [Ex.P1] was lodged by Iyayiram [PW-1],
wife of Sankar, she had not actually witnessed the occurrence. In her
complaint [Ex.P1] as well in her testimony, she has stated that her husband
was brought home in the evening of 01.11.2010 by Ilayaraja [PW-2] and
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Criminal Appeal No.779 of 2015
Sundaram [not examined] and that they told her about the quarrel and the
alleged attack of the accused on her husband. Similarly, Ramasamy [PW-3]
had also not witnessed the occurrence as he was nowhere near the place of
occurrence, which he candidly admitted in the cross-examination. It is most
important to state here that the complaint, in this case, was not given on
01.11.2010 and was given only on 02.11.2010 and the First Information
Report was registered at 06.30 a.m. on 02.11.2010. In the complaint
[Ex.P1], there is absolutely no mention of Ramar [A1] strangulating Sankar
with a nylon rope. Instead, it is stated in the complaint [Ex.P1] that Ramar
[A1] and Billa [A2] picked up a quarrel with Sankar and assaulted him. The
theory of strangulation was introduced only after the postmortem.
6. Iyayiram [PW-1], in her testimony, has stated that her husband used
to consume liquor and come home drunk. It is the specific defence of the
appellant that Sankar committed suicide by hanging in the wee hours of
02.11.2010 and that has been converted into a case of murder.
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Criminal Appeal No.779 of 2015
7. Be that as it may, the prosecution has not examined Sundaram and
Ilayaraja [PW-2] turned hostile. As alluded to above, no injury was found on
the chest of Sankar in the postmortem so as to draw an inference that Billa
[A2] could have kicked him on his chest. Thus, we find no scintilla of
evidence to connect the appellant with the crime.
In the result, the Criminal Appeal is allowed and the appellant is
acquitted of the charge u/s.323 IPC. The conviction and sentence passed in
S.C.No.251 of 2012 on the file of III Additional Sessions Court, Villupuram,
Kallakurichi, vide judgment and order dated 30.11.2015, are set aside. Fine
amount, if any, paid by the appellant shall be refunded. Bail bond executed
shall stand discharged.
[P.N.P., J] [S.S.Y., J]
26.10.2021
Index: Yes/No
gm
https://www.mhc.tn.gov.in/judis/
Criminal Appeal No.779 of 2015
To
1.The III Additional Sessions Court,
Villupuram, Kallakurichi.
2.The Inspector of Police,
Ulundurpet Police Station,
Villupuram District.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
Criminal Appeal No.779 of 2015
P.N.PRAKASH, J
and
S.SRIMATHY, J
gm
Criminal Appeal No.779 of 2015
26.10.2021
https://www.mhc.tn.gov.in/judis/
