Madras High Court
Rajendran vs The State Represented By on 22 September, 2021
Crl.A.(MD).No.297 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :22.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Crl.A.(MD).No.480 of 2018
1.Rajendran
2.Selvaraj
3.Nimal @ Kakkaiyan ... Appellants /Accused Nos.1 to 3
-vs-
The State represented by
the Inspector of Police,
SIPCOT Police Station,
Thoothukudi,
Thoothukudi District
in Crime No.349 of 2015. ... Respondent
PRAYER : Criminal Appeal is filed under Section 374(2) of Cr.P.C.,
against the judgment dated 13.08.2018 passed in Sessions Case No.117 of
2017, on the file of the learned II Additional District Sessions Judge,
Thoothukudi, Thoothukudi District.
1/22
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For A1 : Mr.I.Subramanian, Sr. counsel
for Mr.C.Mayilvahana Rajendran
A2 died
For A3 : Mr.R.Venkatesan
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellants are the accused Nos.1 to 3 in Sessions Case No.117 of
2017, on the file of the learned II Additional District Sessions Judge,
Thoothukudi, Thoothukudi District and they stood charged and tried for the
commission of offences under Sections 302 and 341 of I.P.C.
2. The trial Court, vide impugned judgment dated 13.08.2018, has
convicted the appellants herein for the above said offences and imposed the
sentences, thus:
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Rank of Charge Conviction
the
Accused
To undergo life imprisonment and to pay a fine
U/s. 302 of
of Rs.1,000/-, in default to undergo simple
I.P.C.
Accused imprisonment for a period of three months.
No.1 To undergo one month simple imprisonment.
U/s. 341 of
I.P.C.
U/s. 302 of To undergo life imprisonment and to pay a fine
I.P.C. of Rs.1,000/-, in default to undergo simple
Accused imprisonment for a period of three months.
No.2 U/s. 341 of To undergo one month simple imprisonment.
I.P.C.
U/s. 302 of To undergo life imprisonment and to pay a fine
I.P.C. of Rs.1,000/-, in default to undergo simple
Accused imprisonment for a period of three months.
No.3 U/s. 341 of To undergo one month simple imprisonment.
I.P.C.
Now, challenging the conviction and sentence, the present appeal has
been filed by the appellants/A1 to A3.
3. The case of the prosecution in brief is as follows:
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The deceased in this case one Arumugam, is the father of P.W.1. Due
to a land dispute, on 27.09.2015, at about 7.00 a.m, while the deceased was
going for his morning walk along with his son Vignesh (P.W.1) behind
C.S.I Church at Tuticorin, all the three accused came in a motor cycle and
A1, Rajendran, attacked the deceased with billhook in his head and other
two unknown accused indiscriminately attacked him with sickle and caused
serious injuries. Immediately, P.W.1 returned back to home and informed
his cousins P.Ws.4 and 5. Thereafter, they took the deceased in a 108
Ambulance and admitted him in the Government Hospital, Tuticorin,
wherein he succumbed to injuries on 29.09.2015, at 9.30 a.m. P.W.1
appeared before the respondent police station and filed a complaint / Ex.P1.
Based on that, an F.I.R. has been registered for the offences under Sections
341, 294(b), 307 and 506 (ii) of I.P.C., on 27.09.2015 at 10.30 hrs.
4. P.W.17, the Inspector of Police in the respondent police station, on
receipt of F.I.R., commenced the investigation and visited the scene of
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occurrence and prepared the Observation Mahazar and Rough Sketch-
Ex.P26 and recorded the statement of witnesses. On 29.09.2015, after
receipt of death intimation from the hospital, P.W.17 went to the Hospital,
where he conducted inquest on the dead body of the deceased, in the
presence of witnesses from 11.30 to 13.30 hrs. and recorded their statement,
and filed an Alteration Report - Ex.P28 for the offences under Sections 341,
294(b) and 302 of I.P.C. On the same day, he arrested the accused Nos.1 and
2. On such arrest, A1, voluntarily come forward to give a confession. Based
on the admissible portion of the confession, P.W.17 recovered a motorcycle
bearing Registration No.TN 69A 3834, and also two billhooks – M.Os.1 and
2 and remanded them to judicial custody. On 27.10.2015, A3 in this case
viz., Nimal @ Kakkaiyan appeared before the Village Administrative
Officer / P.W.11 and given an extra judicial confession, and P.W.11,
produced him before P.W.17, and he arrested him. On such arrest, A3,
voluntarily given a confession and based on the admissible portion of his
confession, P.W.17, recovered sickle and a knife, M.Os.3 and 4 and
remanded him to judicial custody.
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5. In the mean time, P.W.8, the Doctor working in the Government
Medical College Hospital, Tuticorin, conducted postmortem autopsy on the
dead body of the deceased and given a Postmortem Report – Ex.P3,
wherein, he noted the following injuries:
“Appearance found at the postmortem:-
Moderately nourished body of a male. Finger and toe nails are
pale. Hospital bandage seen over the head, right side of chest, right
hand and back.
The following ante mortem injuries were noted in the body:-
1.A sutured wound of length 10cms seen in the left paritetal
region. On removal of sutures, cut injury of size 10cms X 1cm X bone
deep.
2.A sutured wound of length 8cms seen in the right occipital
region. On removal of sutures, cut injury of size 8cms X 1cm X bone
deep.
3.A sutured wound of length 10cms seen in the right temporal
region. On removal of sutures, cut injury of size 10 cms X 1cm X bone
deep.
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4.A sutured wound of length 2cms seen in the right ear. On
removal of sutures, cut injury of size 2cms X 1cm X muscle deep.
5.A sutured wound of length 2cms seeen 1 cm above the injury
no.4. On removal of sutures, cut injury of size 2cms X 1cm X muscle
deep.
6.A sutured wound of length 8cms seen in the back of right chest.
On removal of sutures, cut injury of size 8cms X 1cm X bone deep.
7.A sutured wound of length 2.5cms seen in the back of abdomen.
On removal of sutures, cut injury of size 2.5cms X 0.5cm X 1.5cm.
8.A sutured wound of length 3cms seen in the back of right upper
abdomen. On removal of sutures, a stab injury of size 3cms X 1cm X
abdominal cavity deep.
9.A sutured wound of length 10cms seen 4cms below the injury
no.8. On removal of sutures, cut injury of size 10cms X 1cms X
abdominal cavity deep.
10.A sutured wound of length 3cms seen in the left eyebrow. On
removal of sutures, cut injury of size 3cms X 1cm X bone deep.
11.A sutured wound of length 2cms seen in the lateral aspect of
right chest (surgical procedure).
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12.A sutured wound of length 2cms seen 4cms below the injury
no.11.(surgical procedure).
On dissection of Scalp, Skull and Dura:-
Scalp contusion size 10cms X 5cms seen in the left parietal
region. Another scalp contusion of size 5cms X 4cms seen in the right
temporal region. A linear cut of length 7cms seen in the left parietal
bone. Another linear cut of length 8cms seen in the right temporal bone.
Sub arachnoid haemorrhage seen over the right parietal, temporal and
occipital lobes.
Other findings:-
Abdominal cavity-contained about 750 ml of clotted and fluid
blood. Pleural cavity-contained 10ml of blood. Pericardium-contained
10ml of straw colored fluid. Heart-normal and chambers empty.
Coronaries-patent. Larnyx and Trachea-normal. Hyoid bone-intact.
Liver-stab injury noted in the right lobe corresponding to the injury no.
8. Lungs, spllen and kidneys-normal and cut section pale. Stomach-
empty, nil specific smell, mucosa-pale. Small intestine-empty, nil specific
smell, mucosa-pale. Bladder-empty. Brain-normal and cut section
normal. External genitals-normal.
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Note:- Blood preserved for biological analysis.”
and he opined that the deceased appeared to have died of complications of
multiple cut and stab injuries and death would have occurred 4 – 8 hrs. prior
to the autopsy.
6. P.W.17, the Inspector of Police continued the investigation and
recorded the statement of the Doctor and after completion of the
investigation, he filed a final report.
7. Based on the above materials, the trial Court framed the charges
against the accused as mentioned above. However, the appellants/accused
have denied the same. The prosecution in order to sustain their case,
examined as many as 17 witnesses, marked 33 documents and also produced
17 material objects.
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8. Out of the witnesses examined, P.W.1, is the son of the deceased.
According to him, on 27.09.2015, at about 7.00 a.m., while the deceased
and P.W.1 walking behind C.S.I. Church, Tuticorin, all the three accused
came in a motorcycle and attacked the deceased indiscriminately and ran
away from the scene of occurrence. Then, he was taken to the Government
Hospital and the Police came to the Hospital, where they recorded his
statement and obtained the signature from him.
9. P.W.2, is running a fruit stall near the scene of occurrence, turned
hostile. P.W.3 is running a tea stall and he also turned hostile. P.W.4 is the
relative of P.W.1, according to him, P.W.1 informed him that his father was
attacked, immediately, he rushed to the scene of occurrence, and took the
injured person in the motorcycle, on the way, and then in a 108 ambulance
and admitted the injured in the hospital.
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10. P.W.5, spoke about the motive for the occurrence. According to
him, there was a land dispute between A1 and the deceased, and P.W.1
informed him that his father was attacked, then he along with P.W.4, took
the injured to the Hospital.
11. P.W.6 is the wife of the deceased and her evidence has no
substance. P.W.7 is the witness to the Observation Mahazar – Ex.P2. P.W.8
is the Doctor, who conducted postmortem autopsy on the dead body of the
deceased and given a Postmortem Certificate – Ex.P3.
12. P.W.9 is the Doctor, who has given the death information to the
Police. P.W.10 is the Judicial Magistrate, who conducted a Test
Identification Parade, wherein P.W.1 identified A2 and A3. P.W.11 is the
Village Administrative Officer, before whom A3 said to have appeared and
given an extra judicial confession. However, he turned hostile.
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13. P.W.12 is the Village Assistant, a witness to the confession
statement of A1 and A2, he has also turned hostile. P.W.13 is the Head
Constable, he handed over the F.I.R., as well as the Inquest Report to the
Judicial Magistrate Court, and identified the body of the deeased. P.W.14 is
a Assistant Director, working in the Forensic Lab, Tirunelveli, and he
examined the bloodstained materials and given a report Ex.P.18.
14. P.W.15 is the Doctor, who admitted the deceased in the hospital at
about 7.25 a.m., on 27.09.2015, and he issued the Accident Register Ex.P22.
According to him, P.W.1 took the deceased to the Hospital and told him that
unknown persons have attacked him near Paulpandi Nagar.
15. P.W.16 is the Head Constable and he identified the body for
postmortem. P.W.17 is the Investigating Officer, who conducted the
investigation and arrested the accused and recorded the statement of the
witnesses and also filed the final report.
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16. When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., all the accused denied the same as false and they
have not examined any witnesses and not marked any documents.
17. Considering all those materials, the trial Court convicted all the
accused and sentenced them as stated Supra. Now, challenging the
conviction and sentence, the appellants are before this Court with this
criminal appeal.
18. Pending appeal, A2 died, on 04.01.2021, and the Death Certificate
was produced before this Court. The learned Additional Public Prosecutor
on instruction confirmed the death of A2. In the said circumstances, the
appeal against A2, is dismissed as abated.
19. Mr.I.Subramanian, learned Senior counsel, appearing for the first
appellant/A1, would contend that it is a clear case of false implication of the
accused. According to P.W.1, the author of F.I.R., A1 and A2, and one
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unknown accused have attacked his father behind C.S.I. Church, Tuticorin.
Subsequently, his statement was recorded under Section 161 of Cr.P.C.,
wherein, he has implicated one Parisuthakumar stating that he along with
A1 and A2 attacked the deceased, based on his statement, Parisuthakumar
was added as 3rd accused. Subsequently, the said Parisuthakumar name was
deleted, and the present A3, viz., Nimal @ Kakkaiyan, has been implicated
as A3, based on the extra judicial confession said to have given by Nimal @
Kakkaiyan, before the Village Administrative Officer / P.W.11. However,
P.W.11 turned hostile and the alleged extra judicial confession was also not
marked before the Court, and it is not known how the name of
Parisuthakumar has been deleted and Nimal @ Kakkaiyan has been
implicated as an accused. That apart, the learned Senior counsel further
submitted that, in the chief - examination of P.W.1, he has not accounted the
overt act committed by each accused. The learned Senior counsel, further
submitted that, P.W.15, the Doctor, admitted the injured in the Hospital and
issued the Accident Register - Ex.P22, wherein P.W.1 stated that three
unknown persons attacked the deceased near Paulpandi Nagar. However,
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from the perusal of the F.I.R., the Rough Sketch and the evidence of P.W.17,
the Investigating Officer, it is seen that the occurrence said to have taken
place in some other place not at Paulpandi Nagar, and the scene of
occurrence also changed. The learned Senior counsel further submitted that
even though the occurrence took place in the residential area, except the
interested witness P.W.1, there is no other independent witness has been
examined by the prosecution. He further submitted that even though the
F.I.R has been registered on 27.09.2015, at about 10.30 a.m., the F.I.R.
reached the Court only on the next day at about 10.30 a.m. and the delay
was not properly explained by the prosecution, which creates a clear doubt
that there is a false implication of the accused.
20. Heard Mr.R.Venkatesan, learned counsel appearing for the third
appellant/A3, the learned counsel reiterates the arguments of the learned
Senior counsel.
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21. Mr.S.Ravi, learned Additional Public Prosecutor appearing for
the State would submit that, P.W.1, is the son of the deceased and he is an
eyewitness to the occurrence. The occurrence took place in the early
morning at about 7.00 a.m., while the deceased walking along with P.W.1.
P.W.1 has clearly stated that all the accused came in a two wheeler and
attacked the deceased indiscriminately and caused serious injuries,
subsequently, the deceased succumbed to injuries. From the evidence of
P.W.1, it is seen that he only took the deceased to the Hospital and the
Accident Register - Ex.P22 also supported the same. He further submitted
that the medical evidence also corroborates the evidence of P.W.1. Hence,
there is no reason to disbelieve the evidence of P.W.1.
22. The learned Additional Public Prosecutor further submitted that
the complaint has been filed by P.W.1 without any delay. According to P.W.
1, A1 is a known person and the other two persons are unknown to him. In
the above circumstances, a Test Identification Parade was conducted by P.W.
10, Judicial Magistrate, Srivaigundam, wherein, P.W.1, clearly identified the
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accused Nos.2 and 3. The trial Court, considering all those materials,
rightly convicted the accused and there is no reason to interfere with the
judgment of the trial Court.
23. We have heard the rival submissions and perused the materials
available on record.
24. Originally the F.I.R. was registered against the known accused A1
and two unknown accused, subsequently, based on the statement of P.W.1,
under Section 161 Cr.P.C., one Selvaraj, and one Parisutha kumar have been
implicated as A2 and A3. Therefore, Ex.P28 - Alteration Report, was filed
by P.W.17 to that effect, altering the offence under Section 302 of I.P.C., and
implicating the said Parisuthakumar as A3. P.W.17 in his evidence has
clearly stated that, according to P.W.1, Parisuthakumar, attacked the
deceased with the knife in his hip. However, subsequently the said
Parisuthakumar name was deleted, it is not known how the name of
Parisuthakumar has been deleted from the array of accused, absolutely, there
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is no material available on record for that, and P.W.17, was also not able to
explain it. That apart, in his place, one Nimal @ Kakayan, has been
implicated as A3, based on the extra judicial confession said to have been
given by him before the Village Administrative Officer, P.W.11. But, P.W.11
turned hostile, and that extra judicial confession was also not marked before
the Court. As rightly contended by the learned Senior counsel, admittedly,
there is no material available on record to show how the name of
Parissuthakumar has been deleted and Nimal @ Kakeyan has been
implicated in this case, which clearly creates a doubt and there is likely a
false implication of the accused.
25. That apart, P.W.1 has clearly stated that the occurrence has taken
place in Paulpandi Nagar, behind one C.S.I.Church. However, from the
perusal of Observation Mahazar and Rough Sketch – Ex.P26, it could be
seen that, the occurrence took place near Millerpuram Housing Board and
Paulpandi Nagar is situated far away from the scene of occurrence. Even
though the learned Additional Public Prosecutor would submit that
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Paulpandi Nagar is a large area, and the occurrence took place only in
Paulpandi Nagar Main Road, but that contention is not supported by any
material.
26. So far as registration of F.I.R. is concerned, P.W.1, has clearly
stated that he has given a statement before the police in the Hospital, which
has been reduced into writing and the police got his signature in it. But, P.W.
17, the Investigating Officer has stated that P.W.1, has written the complaint
and handed over it in the Police Station. Based on that complaint, F.I.R. has
been registered, the concerned person, who has registered the F.I.R., was not
examined by the prosecution, and there is no plausible reason for non-
examination of the person, who has registered the F.I.R. Apart from that,
even though the F.I.R. said to have been registered at about 10.30 a.m., on
27.09.2015, it reaches the Judicial Magistrate Court, only on the next day at
10.30 a.m. and there is no explanation for the delay of 24 hours in sending
the F.I.R. to the Court which situated very nearby to the police station. The
unexplained delay also created a doubt about the prosecution case.
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27. Considering all these circumstances, we are of the considered
view that the prosecution has failed to prove the case beyond any reasonable
doubt and therefore, the appellants 1 and 3 are entitled for acquittal.
28. In the result, the Criminal Appeal is allowed and the conviction
and sentence imposed by the learned II Additional District Sessions Judge,
Thoothukudi in S.C.No.117 of 2017 is set aside and the appellants 1 and 3 /
Accused Nos.1 and 3 are acquitted of the charges framed against them. The
fine amount if any paid by the appellants 1 and 3/A1 and A3 is to be
refunded to them. The bail bonds executed by the appellants stand
terminated/cancelled.
[V.B.D.,J.] [J.N.B.,J.]
22.09.2021
Index : Yes / No
Internet : Yes / No
akv
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Crl.A.(MD).No.297 of 2021
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.II Additional District Sessions Judge,
Thoothukudi,
Thoothukudi District.
2.The Inspector of Police,
SIPCOT Police Station,
Thoothukudi,
Thoothukudi 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.
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Crl.A.(MD).No.297 of 2021
V.BHARATHIDASAN,J.
and
J.NISHA BANU,J.
akv
JUDGMENT MADE IN
Crl.A.(MD).No.480 of 2018
22.09.2021
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