Madras High Court
Pandiarajan vs The State Through The on 21 June, 2022
Crl. A(MD)No.234 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
Crl. A(MD)No.234 of 2019
Pandiarajan : Appellant
Vs.
The State through the
Deputy Inspector of Police
Kenikarai Police Station,
Ramanathapuram District,
Under Cr.No.501 of 2009. : Respondent
PRAYER: Criminal Appeal is filed under Section 374 of the Code of
Criminal Procedure, call for the records of the case in Special S.C.No.59
of 2013 on the file of the Principal Sessions Court, Ramanathapuram
dated 27.04.2019 and set aside the conviction and sentence passed by the
Principal Sessions Court, Ramanathapuram and acquit the appellant /
sole accused.
For Appellant : Mr.G.Vishnuram
For Respondent : Mr.S.Ravi,
Additional Public Prosecutor
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Crl. A(MD)No.234 of 2019
JUDGMENT
(Delivered by P.N.PRAKASH, J)
This criminal appeal is filed against the judgment and order dated
27.04.2019 passed in Special S.C.No.59 of 2013 on the file of the
Principal Sessions Court, Ramanathapuram.
2. The trial Court, by judgment and order dated 27.04.2019,
acquitted the accused from the charge under Section 3(2)(v) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989 (for brevity “the SC/ST Act”) and convicted him for the offence
under Section 302 IPC and sentenced him to undergo life imprisonment
and also to pay a fine of Rs.50,000/-, in default, to undergo rigorous
imprisonment for two years. Challenging the conviction and sentence,
Pandiarajan (appellant herein) is before this Court.
3. The prosecution story runs thus:
3.1. The deceased in this case is one Arumugam, a Dalit leader in
Jawahar Nagar, Ramanathapuram Town. It is stated that, whenever he
finds any youth astray, he would advise and upbraid him. He also used to
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Crl. A(MD)No.234 of 2019
be active in preventing the illegal sale of intoxicants in the area, on
account of which, it appears that he had lot of enemies. The incident in
this case is said to have occurred around 7.00 p.m. on 18.10.2009 in front
of Bala Mechanic shop in Jawahar Nagar. It is alleged that, three months
prior to the incident, the appellant was strolling in that area and on seeing
him, the deceased is said to have questioned him and slapped him. This
was projected as the motive for the murder.
3.2. It is alleged by the prosecution that on 18.10.2009 around 7.00
p.m., while the deceased was proceeding to his house along with one
Kalanjiyam (P.W.7) and Mahadevan (P.W.19), the appellant intercepted
him and belabored him with a knife (M.O.3) and caused his death. Soon,
people gathered in the area and information was sent to Indira Gandhi
(P.W.1), the wife of the deceased.
3.3. On a written complaint (Ex.P.-1) given by Indira Gandhi (P.W.
1), Jeevaratnam (P.W.13), Sub-Inspector of Police, registered a case in
Kenikarai Police Station Crime No.501 of 2009 under Section 302 IPC
on 18.10.2009 at 19:45 hours and prepared the printed FIR (Ex.P.-7),
which reached the jurisdictional Magistrate at 10.00 p.m. on the same
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Crl. A(MD)No.234 of 2019
day, as could be seen from the endorsement thereon. In the complaint
(Ex.P.-1), Indira Gandhi (P.W.1) has stated that, she had earlier seen the
appellant coming to her house twice and even threatened her once and
that on the fateful day, while she was at her home, she received news that
her husband was attacked and so, when she went to the place of
occurrence, she was informed by Kalanjiyam (P.W.7) and Mahadevan
(P.W.19) that the appellant had attacked her husband and caused his
death.
3.4. The investigation of the case was taken over by Ganesan (P.W.
23) Inspector of Police, who went to the place of occurrence and
prepared the observation mahazar (Ex.P.-17) and rough sketch (Ex.P.-18).
From the place of occurrence, Ganesan (P.W.23), Inspector of Police,
seized bloodstained soil and soil without bloodstain (M.O.1 and M.O.2
respectively).
3.5. The body was sent to the Government Hospital,
Ramanathapuram, by an ambulance and an inquest was conducted by
Ganesan (P.W.23) Inspector of Police, between 7.00 a.m. and 9.00 a.m.
on 19.10.2009. The inquest report was marked as Ex.P.-19.
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Crl. A(MD)No.234 of 2019
3.6. Dr.Krishnamurthy (P.W.17) performed autopsy on the body of
the deceased and issued the postmortem certificate (Ex.P-12) and gave
his final opinion in Ex.P.-13. In his evidence as well in the postmortem
certificate (Ex.P.-12), he has noted nine injuries on various parts of the
body. In the final opinion (Ex.P.-13), he has stated that the death would
have occurred due to multiple injuries, shock and injury to vital organs.
3.7. Since the deceased was a Dalit, investigation was taken over
by Murugesan (P.W.24), Deputy Superintendent of Police, who arrested
the appellant on 20.10.2009 at 1.45 p.m. and recorded his police
confession. Based on the disclosure made by the appellant, the knife
(M.O.3) was recovered under the cover of a mahazar (Ex.P.-6) in the
presence of Velu (P.W.11), Village Administrative Officer. Thereafter, the
accused was sent in judicial custody. The Investigating Officer obtained
the community certificate of the accused vide Ex.P.-8, which shows that
the appellant belongs to a non-Dalit community.
3.8. After examining various witnesses and collecting the reports
from the experts, the Investigating Officer completed the investigation
and filed a final report in P.R.C.No.10 of 2010 in the Court of the
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Crl. A(MD)No.234 of 2019
Judicial Magistrate No.II, Ramanathapuram, for the offences under
Section 302 IPC and Section 3(2)(v) of the SC/ST Act, against the
appellant.
3.9. On the appearance of the appellant, the provisions of Section
207 Cr.P.C., were complied with and the case was committed to the Court
of Session, Ramanathapuram, in Special S.C.No.59 of 2013 and was
tried by the Principal Sessions Court, Ramanathapuram (Special Court
for SC/ST cases). The Sessions Court framed charges under Section 302
IPC and Section 3(2)(v) of the SC/ST Act, against the appellant and
when the appellant was questioned, he pleaded not guilty.
4. To prove the case, the prosecution examined 24 witnesses and
marked 22 exhibits and 6 material objects.
5. When the appellant was questioned under Section 313 Cr.P.C.,
on the incriminating evidence against him, he denied the same. No
witnesses examined from the side of the appellant nor any document
marked.
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Crl. A(MD)No.234 of 2019
6. After considering the evidence adduced on either side, the trial
Court by judgment and order dated 27.04.2019, in Special S.C.No.59 of
2013, has acquitted the appellant of the charge under Section 3(2)(v) of
the SC/ST Act, but has convicted him of the offence under Section 302
IPC and sentenced him to undergo life imprisonment and also to pay a
fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for two
years. Challenging the same, the appellant is before this Court.
7. Heard Mr.G.Vishnuram, learned counsel for the appellant and
Mr.S.Ravi, learned Additional Public Prosecutor appearing for the State.
8. The prosecution has proved the following facts beyond any
doubt:-
(i) The deceased Arumugam hailed from Jawahar Nagar,
Ramanathapuram, and was the husband of Indira Gandhi (P.W.1);
(ii) The appellant was also from the same locality;
(iii) The death of Arumugam was a homicide and it occurred on
18.10.2009 around 7.00 p.m.
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Crl. A(MD)No.234 of 2019
9. The fact in issue is, whether the appellant was the perpetrator of
the offence. The entire prosecution case rests on the eyewitness
testimony of Kalanjiyam (P.W.7) and Mahadevan (P.W.19). It may be
relevant to state here that, even in the complaint (Ex.P.-1), Indira Gandhi
(P.W.1) has stated that, Kalanjiyam (P.W.7) and Mahadevan (P.W.19) had
seen the incident and told her that it was the appellant who had attacked
her husband. Thus, the names of Kalanjiyam (P.W.7) and Mahadevan
(P.W.19) find place in the complaint (Ex.P.-1). However, Mahadevan
(P.W.19) completely turned hostile and stated that he does not even know
the appellant and that he came to know of the incident only much later.
10. Now, we are left with the solitary evidence of Kalanjiyam (P.W.
7) and of course, we also have the testimony of Pandi (P.W.8) and
Murugesan (P.W.9), who have stated that they saw the appellant in and
around that area at the relevant point of time.
11. Before discussing the evidence of Kalanjiyam (P.W.7), Pandi
(P.W.8) and Murugesan (P.W.9), it may be significant to state that all the
witnesses including Indira Gandhi (P.W.1), have uniformly stated in the
cross-examination that, after the murder of Arumugam, the local people
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Crl. A(MD)No.234 of 2019
staged dharna demanding the arrest of the offender in the morning of
19.10.2009.
12. Learned counsel for the appellant contended that, if according
to the prosecution, the name of the appellant was known to the police,
there was no question of any dharna being done by the local people
demanding arrest of the perpetrators. In fact, two important witnesses,
namely, Indira Gandhi (P.W.1) and her brother-in-law Murugesan (P.W.2)
have stated in the cross-examination that in the night of 18.10.2009
itself, the appellant was taken into custody by the police and they saw
him in the police station. This statement belies the prosecution story that
the appellant was arrested only on 20.10.2009. In this background, when
the appellant had come into the hands of the police even on 18.10.2009,
the question of the local people agitating to arrest the offender appears to
be a little bizarre.
13. Bearing this in mind, we shall now analyze the evidence of
Kalanjiyam (P.W.7), Pandi (P.W.8) and Murugesan (P.W.9).
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Crl. A(MD)No.234 of 2019
13.1. Pandi (P.W.8), in his evidence, has stated that at 6.00 p.m. on
18.10.2009, while he was with Murugesan (P.W.9), he saw the appellant
running with a knife near the Vinayagar Temple.
13.2. Murugesan (P.W.9), in his evidence, has stated that around
7.00 p.m. on 18.10.2009, he and Pandi (P.W.8) saw the appellant running
away with the knife in his hand. Though there is a discrepancy in the
timing, which need not always be fatal, these two witnesses have not
stated to the police the fact that they saw the appellant running with the
knife in hand. This contradiction has been put to them in the cross-
examination and also to the Investigating Officer as required under
Section 145 of Cr.P.C. On the contrary, they have only stated to the
Investigating Officer that they saw the appellant going in the eastern
direction at the relevant point of time and nothing more. Therefore, the
statement of these two witnesses that they saw the appellant running with
a knife in hand at 7.00 p.m. on 18.10.2009, appears unbelievable.
13.3. Now, coming to the evidence of Kalanjiyam (P.W.7), his
evidence was not corroborated by Mahadevan (P.W.19) as stated above.
The fact remains that, both Kalanjiyam (P.W.7) and Mahadevan (P.W.19)
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Crl. A(MD)No.234 of 2019
are Dalits and they have stated that they are closely related to the
deceased. Despite that, Mahadeven (P.W.19) has stated that he was
nowhere in the area when the incident had taken place and only when he
came to know about the incident, he went there. He has further stated that
he does not even know the appellant.
13.4. Kalanjiyam (P.W.7) has stated that on 18.10.2009 about 7.00
p.m., he was walking with the deceased; at that time, he told the deceased
that he would go in the front and when he took a few steps forward, the
appellant attacked the deceased. He has stated that the attack took place
near Bala Workshop. However, in the cross-examination, he has stated
that he was 50 metres away and was near S.S Communication Shop when
the attack had taken place. If this witness had actually seen the
occurrence, it is not known as to why a complaint was not got from him
and a case registered and instead, the FIR in this case has been registered
based on the hearsay account of Indira Gandhi (P.W.1), who, admittedly,
was not anywhere near the place of occurrence. Kalanjiyam (P.W.7) has
also stated that there was a dharna on the next day to arrest the actual
accused who were involved in the murder of deceased Arumugam.
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Crl. A(MD)No.234 of 2019
14. As stated above, when the appellant had come into the custody
of the police, even on the date of the occurrence and his name has been
shown in the FIR, where was the need for the local people, including the
witnesses therein, to conduct dharna for arresting the actual murderer.
Thus, the evidence of Kalanjiyam (P.W.7) does not inspire the confidence
of this Court for sustaining the conviction.
15. In the result, this appeal is allowed.
The conviction and sentence imposed on the appellant / accused,
by judgment and order dated 27.04.2019 in Special S.C.No.59 of 2013
on the file of the Principal Sessions Court, Ramanathapuram, (Special
Court for SC/ST cases) for the offence under Section 302 IPC is hereby
set aside.
[P.N.P., J.] & [R.H., J.]
21.06.2022
Index : Yes/No
Internet : Yes
pkn
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Crl. A(MD)No.234 of 2019
To
1.The Principal Sessions Judge,
(Special Court for SC/ST cases)
Ramanathapuram.
2.The Deputy Inspector of Police,
Kenikarai Police Station,
Ramanathapuram.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD)No.234 of 2019
P.N.PRAKASH, J
AND
R.HEMALATHA, J
pkn
Judgment made in
Crl.A.(MD)No.234 of 2019
21.06.2022
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