Madras High Court
Bala @ Balasubramaniyan vs State Represented By on 29 June, 2022
Crl. A(MD)No.326 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 29.06.2022
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr. JUSTICE R.VIJAYAKUMAR
Crl. A(MD)No.326 of 2019
Bala @ Balasubramaniyan : Appellant/A2
Vs.
State represented by
The Inspector of Police
Thalamuthunagar Police Station
Tuticorin District
in Crime No.104 of 2001 : Respondent
PRAYER: Criminal Appeal is filed under Section 374 of the Code of
Criminal Procedure, against the judgment dated 28.03.2003 in S.C.No.
304/2002 on the file of the Additional Sessions Judge and Chief Judicial
Magistrate, Thoothukudi.
For Appellant : Mr.R.Alagumani
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
1/13
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Crl. A(MD)No.326 of 2019
JUDGMENT
P.N.PRAKASH, J.
This criminal appeal is filed against the judgment and order dated
28.03.2003 in S.C.No.304 / 2002 on the file of the Additional Sessions
Judge, and Chief Judicial Magistrate, Thoothukudi.
2.The prosecution story runs thus:
The deceased Marimuthu was the younger brother of Mariselvam
[P.W.-1] and they were residents of Mappillaioorani Village; the brothers
were running a grocery shop in the market; on 21.03.2001, Marimuthu left
the grocery shop around 6 in the evening saying that he is going to the
saloon for haircut; however, he did not return home; therefore, Mariselvam
[P.W.-1] and other family members started searching for Marimuthu
throughout the night, but in vain; however, on the next morning
(22.03.2001) around 6.30 a.m., Mariselvam [P.W.-1] found the body of
Marimuthu with numerous cut injuries amongst bushes in the land
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Crl. A(MD)No.326 of 2019
belonging to one Srinivasa Nadar abutting Ettayapuram main road. On a
written complaint [Ex.P.-1], given by Mariselvam [P.W.-1], Sudalaimuthu,
Sub Inspector of Police [P.W.-14], registered a case in Thalamuthu Nagar
Police Station Crime No.104/2001 under Section 302 IPC on 22.03.2001 at
6.30 a.m. against unknown accused and prepared the printed FIR [Ex.P-17].
2.1. Investigation of the case was taken over by Rajendran, Inspector
of Police, [P.W.-16], who went to the place of occurrence and prepared the
observation mahazar [Ex.P-6] and rough sketch [Ex.P-18]. During the
course of investigation, it came to light from the statements of
Saravanakumar [P.W.-2] and Madhan [P.W.-4], the friends of Marimuthu,
that Marimuthu was attacked brutally on the previous night by
Sudalaimuthu [A-1], Bala @ Balasubramaniyan [A-2] and Christopher
[A-3]. Inquest was conducted by the investigating officer and the inquest
report was marked as Ex.P-19. Even in the inquest report, the names of the
three accused find a place. The body of Marimuthu was sent to the
Government Hospital, Tuticorin, where Dr.Densil [P.W.-10] performed
autopsy on the body of Marimuthu and issued the postmortem certificate
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[Ex.P-12], wherein, 12 cut injuries have been recorded.
2.2. Sudalaimuthu [A-1] and Bala @ Balasubramaniyan [A-2] were
arrested by the police on 23.03.2001 in the presence of [P.W.-11] Village
Administrative Officer and Christopher [A-3] was arrested on 02.04.2001.
Pursuant to the police confession of Sudalaimuthu [A-1], a bill hook was
recovered under the cover of a mahazar [Ex.P-14].
2.3. After the transfer of Rajendran [P.W.-16], investigation was
continued by Bommaiyasamy [P.W.-15], who filed a final report in
P.R.C.No.103/2001 in the Court of the Judicial Magistrate, No.II, Tuticorin,
against Sudalaimuthu [A-1], Bala @ Balasubramaniyan [A-2] and
Christopher [A-3] for the offences under Sections 341, 302 and 506(II) IPC.
3. On appearance of the accused, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session, Tuticorin in S.C.No.304/2002 and was made over to the Additional
District and Sessions Court, Tuticorin for trial. The trial Court framed
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charges under Sections 341, 302 and 506(II) IPC against the accused and
when questioned, they pleaded “not guilty”.
4. To prove the case, the prosecution examined 16 witnesses and
marked 19 exhibits and 16 material objects. When the accused were
questioned under Section 313 Cr.P.C., on the incriminating circumstances
appearing against them, they did not offer any explanation. No witness was
examined from the side of the accused nor any document marked. After
considering the evidence on record and hearing either side, the trial Court,
by judgment and order, dated 28.03.2003 in S.C.No.304/2003, convicted
A-1 to A-3 as under:
Accused Section of Sentence of Fine amount
Law imprisonment
A1 to A3 341 IPC -- Rs.100/- each, in default to
undergo simple
imprisonment for one week.
A1 to A3 302 r/w 34 To undergo --
IPC imprisonment for life
A1 506(II) IPC To undergo rigorous --
imprisonment for two
years
Challenging the same, Bala @ Balasubramaniyan [A-2] is before this Court.
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Crl. A(MD)No.326 of 2019
5. Sudalaimuthu [A-1] and Christopher [A-3] filed Crl.A.Nos.860 and
1365 of 2003 in the Principal Seat at Chennai (since the Madurai Bench was
established only in the year 2004). However, Bala @ Balasubramaniyan
[A-2] did not prefer any appeal. A Division Bench of this Court heard the
appeals of Sudalaimuthu [A-1] and Christopher [A-3] and by a common
judgment and order dated 06.09.2006, dismissed the appeals and confirmed
the conviction and sentence imposed on them by the trial Court. After the
establishment of the Madurai Bench in the year 2004, Tuticorin District was
brought within the territorial jurisdiction of Madurai Bench. It appears that
Bala @ Balasubramaniyan [A-2] faced five murder cases apart from the
present one, in which, he has been acquitted in four cases and has been
convicted and sentenced in this case.
6. Bala @ Balasubramaniyan [A-2] filed the present appeal before
this Court with a delay of 5,803 days, which was condoned by a Division
Bench of this Court in Crl.M.P.(MD) No.4794/2019 on 05.07.2019 and
thereafter, the present appeal was numbered.
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Crl. A(MD)No.326 of 2019
7. Heard Mr.R.Alagumani, learned counsel for the appellant and
Mr.S.Ravi, learned Additional Public Prosecutor for the respondent.
8. Though this Court has accepted the evidence of Saravanakumar
[P.W.-2] and Madhan [P.W.-4] in the appeals filed by Sudalaimuthu [A-1]
and Christopher [A-3], we independently analyzed the evidence of these
witnesses in this appeal.
9. The entire prosecution case rests on the eyewitness account of
Saravanakumar [P.W.-2], Madhan [P.W.-4] and Santhanaraj [P.W.-5].
Saravanakumar [P.W.-2], in his evidence, has stated that he is doing
business in iron in Mappillaioorani and knows Mariselvam [P.W.-1] and
Marimuthu; he also knows the accused; on 21.03.2001, after dinner, he
came to the new bus stand to buy sweets; at that time, he met Madhan
[P.W.-4]; when both of them were talking, Marimuthu came by his bicycle;
Marimuthu was having gunny bags for purchasing groceries in his cycle;
while all the three were proceeding to their village, the accused armed with
deadly weapons, intercepted Marimuthu and Sudalaimuthu [A-1] questioned
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Crl. A(MD)No.326 of 2019
Marimuthu as to why he had teased his niece Mallika; after saying so, all
the three started indiscriminately attacking Marimuthu; when a hue and cry
was raised, 10 to 15 people rushed there, but they were threatened by the
accused and so, they did not come to the rescue of anyone; the accused also
threatened them; therefore, they ran away with their cycles from the place;
they [accused] further threatened that if anyone gives evidence against
them, their houses will be burnt.
10. Madhan [P.W.-4] has substantially corroborated Saravanakumar
[P.W.-2]. In the cross examination of Saravanakumar [P.W.-2] and Madhan
[P.W.-4], questions were asked with regard to the presence of light in that
area, for which, they stated that there was light, though it was dark. Further,
in the cross-examination, both of them have stated that the accused were
known to them. When they were asked as to how they got their
acquaintance, they had explained that the accused used to come to market
where they had seen them.
11. The prosecution has proved beyond any doubt that the death of
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Marimuthu was a homicide (we have the evidence of Saravanakumar
[P.W.-2] and Madhan [P.W.-4]). The defence was not able to make any
serious dent in the testimony of Saravanakumar [P.W.-2] and Madhan
[P.W.-4]. That apart, though Santhanaraj [P.W.-5] turned hostile, yet, in the
evidence, he has stated that on 21.03.2001, around 10 in the night, he heard
a person crying for help near Srinivasa Nadar lane and so, he and others
went there and saw under the street light the three accused standing with
deadly weapons. However, this witness, who was required to speak about
the attack on Marimuthu by the accused, did not say anything about that. He
was declared hostile and was cross-examined by the Public Prosecutor. It is
trite that evidence of hostile witness cannot be rejected in toto and those
portions that are in conformity with the case of the prosecution can be relied
upon.
12. Mr.R.Alagumani, learned counsel for the appellant, contended
that Saravanakumar [P.W.-2] and Madhan [P.W.-4] did not inform the family
of Marimuthu, immediately after the incident and therefore, they would not
have been present at the scene of occurrence. Saravanakumar [P.W.-2] and
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Madhan [P.W.-4] have stated that they were threatened by the three accused,
who were armed and therefore, they ran away after they witnessed the brutal
attack. Therefore, just because they did not have the courage to come over
to the house of Marimuthu and inform his family members immediately, it
cannot be stated that they would not have been present during the attack. In
their cross-examination, no motive has been suggested by the defence for
falsely implicating the accused.
13. Mr.R.Alagumani, learned counsel, placed reliance on the rough
sketch [Ex.P-18] and submitted that the place of occurrence in this case is
not a main road, but amongst bushes and therefore, the eyewitness
testimony should be rejected. We are unable to accept the said submission
for the reason that, what is shown in the observation mahazar [Ex.P-6] and
rough sketch [Ex.P-18] is the place, where the body was found. According
to Saravanakumar and Madhan [P.Ws.2 and 4], the attack began in the road
and naturally, Marimuthu would have attempted to flee and must have gone
into the bushes, where his body was later found.
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14. Mr.R.Alagumani, learned counsel, contended that though two
knives were recovered very near the body, there were no bloodstains in
them. Just because, there were no bloodstains in the two knives that were
recovered from the place, where the body was found, it would not lead to
the inference that the said knives were not at all used for the attack.
Presence of blood in the knives would add corroboration to the case of the
prosecution, but absence of blood would not lead to a negative inference.
15. The learned counsel further contended that Saravanakumar
[P.W.-2] and Madhan [P.W-4] have stated that they do not know about the
names of the fathers of the three accused, whereas, the investigating officer
has stated that the names were given by these witnesses. This discrepancy
between the assertion of Saravanakumar [P.W.-2] and Madhan [P.W.-4] with
the statement of the investigating officer with regard to the name of the
fathers of the accused is too trivial to disbelieve the eyewitness account of
Saravanakumar [P.W.-2] and Madhan [P.W.-4].
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16. In the result, we do not find any merit in the appeal. Accordingly,
the criminal appeal fails and the same is dismissed. However, we direct that
the sentences imposed in S.C.Nos.288 and 304 of 2002 shall run
concurrently and the appellant would be entitled to set off under Section
428 Cr.P.C.
[P.N.P., J.] & [R.V., J.]
29.06.2022
Index : Yes/No
Internet : Yes
RR
To
1.The II Additional Sessions Judge
and Chief Judicial Magistrate
Tuticorin.
2.The Inspector of Police
Thalamuthunagar Police Station
Tuticorin District
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court, Madurai.
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Crl. A(MD)No.326 of 2019
P.N.PRAKASH, J
AND
R.VIJAYAKUMAR, J
RR
Judgment made in
Crl.A.(MD)No.326 of 2019
29.06.2022
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