Madras High Court
K.Boobalan vs State Rep.By on 30 June, 2022
Crl.A.No.16 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.16 of 2019
1.K.Boobalan
2.M.Praveen ... Appellants
Versus
State rep.by
Inspector of Police,
Annamalai Police Station,
Coimbatore.
Cr.No.365 of 2015 ... Respondent
Prayer: Criminal Appeal is filed under Section 374(2) of Cr.P.C.,
against the Judgment and Order of conviction passed in S.C.No.133 of
2016 dated 19.12.2018 on the file of the learned Third Additional
District and Sessions Judge, Coimbatore and pray for setting aside the
same.
For Appellants : Mr.B.Kumarasamy
for Mr.Balakrishnan
1/20
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
For Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl.Side)
JUDGMENT
This appeal is filed aggrieved by the judgment of the III
Additional District and Sessions Judge, Coimbatore in S.C.No.133 of
2016 dated 19.12.2018.
2. The case of the prosecution is that on 10.11.2015, when PW12,
Maheswari, Sub-Inspector of Police was on the duty, at Anaimalai Police
Station, PW1 came to the police station and lodged a complaint to the
effect that he along with his friends namely, the deceased Murugan
@Muruganandam and the injured witnesses, on the eve of Deepavali
went to the place near Uppar River at Ondivelampalayam, near
Vettaikaranpudur, Velandurai for drinking liquor, where the accused
persons were already having liquor by sitting in another place and when
the motorcycle belonging to them fell on the motorcycle belonging to the
accused, they picked up a quarrel and they hit them by stones and
coconut reef and caused injuries. The said Murugan who went along with
them lay unconscious and was taken to hospital, but, however, was
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
pronounced dead. On the strength of the said allegation, a case in crime
No.366 of 2015 was registered for the alleged offences under Sections
294(b), 324, 307 and 302 of IPC. PW15, thereafter, completed the
investigation and filed charge sheet before the learned Judicial
Magistrate-I, Pollachi, who took the case in P.R.C.No.18 of 2016. As
contemplated as per Section 207 of Cr.P.C., copies were furnished to the
accused and the case was committed to the case of sessions, Coimbatore.
Thereafter, the case was taken on file in S.C.No.133 of 2016 and was
made over to the trial Court.
3. Upon considering the materials available on record, the trial
Court framed the charges under Section 294(b), 307 r/w.34 IPC and 302
of IPC against the 1st accused and against the 2nd accused charges were
framed under Sections 307 IPC, 302 r/w. 34 IPC. Upon being questioned
the accused, denied the charges and stood trial.
4. The prosecution thereafter examined PW1 to PW15 to bring out
the charges and marked Exs.P1 to P8 and also produced M.Os.1 to 10.
Upon being questioned about the evidence on record and the
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
incriminating circumstances under Section 313 of Cr.P.C., the accused
denied the same as false. Thereafter, no evidence was let in on behalf of
the defence and the trial Court therefore, proceeded to hear the learned
Additional Public Prosecutor for the prosecution and the learned counsel
for the accused and by the judgment dated 19.12.2018, found the 1st
accused guilty for the offence under Section 304(ii) r/w.Section 34 of
IPC and imposed a sentence of R.I., for a period of 5 years and to pay a
compensation of Rs.50,000/- and for the offence under Section 324
r/w.34 IPC, imposed a sentence for a period of one year and to pay a fine
of Rs.1,000/-, in default to undergo S.I., for one month and for the
offence under Section 294(b) of IPC, to pay a fine of Rs.500/- in default,
to undergo S.I., for 1 month.
5. The 2nd accused was also convicted for the offence under
Section 304(ii) r/w.Section 34 of IPC and imposed a sentence of R.I., for
a period of 5 years and to pay a compensation of Rs.50,000/- and also
convicted for the offence under Section 324 r/w. 34 IPC and was
directed to undergo S.I., for a period of one year and to pay a fine of
Rs.1,000/- and in default to undergo S.I., for a period of 1 month.
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
Aggrieved by the same, the present appeal is filed before this Court.
6. Heard the learned counsel for the appellants an the learned
Government Advocate (Crl.Side) for the respondent and perused the
materials available on record.
7. According to the learned counsel for the appellants, even though
as per the case of the prosecution, the occurrence had taken place in a
drunken condition, neither the accused submitted any medical
examination nor viscera of the deceased was examined and therefore, the
prosecution even though, had opportunity to prove the case, had omitted
to investigate and prove its own allegations and therefore, the
prosecution even failed to discharge its primary onus.
8. The learned counsel for the appellants/accused 1 and 2 also
submit that M.Os., which are produced and the manner in which it is said
to have been recovered are absolutely artificial as recovered objects did
not contain blood stains. The evidence of recovery witnesses are
contradictory and therefore, the entire M.Os., produced by the
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
prosecution in the nature of the stone and coconut reef etc., are
absolutely artificial and unbelievable.
9. The learned counsel for the appellants would further submit that
the time of arrest and the manner of the arrest of the accused are
doubtful. The evidence of the Investigating Officer and concerned
Mahazar witnesses are contradictory. Further, the evidence of PW1
informant and other injured witnesses are in contradiction in respect of
of the material particulars as to the exact scene of occurrence. Therefore,
the prosecution case is doubtful. The prosecution in this case did not
conduct any test identification parade and since the defacto complainant
as well as injured witnesses have agreed in the cross-examination that
they did not know the address or other particulars of the accused and this
would clearly show that defence has demonstrated that PWs., did not
know both the accused prior to the occurrence and therefore, in the
absence of any identification parade, merely based on the identification
before the Court, the accused cannot be convicted.
10. Per contra, the learned Government Advocate (Crl.Side) would
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
submit that this is a case where the prosecution has proved the charges to
the hilt. PW1 and the two injured witnesses PW2 and PW4 have clearly
and categorically spoken about the incident. The case of the prosecution
is corroborated by the other evidence available on record. The post-
mortem certificate in respect of the deceased person and the wound
certificate in respect of the other accused are before this Court.
11. The evidence of the prosecution right from the complaint being
given soon after the incident clearly and categorically prove the case.
When the case rests on clear eye witnesses and when the defence not
elicited in the cross-examination of the eye witnesses or injured
witnesses any answer favourable to them or there is absolutely no ground
to interfere with the findings of the trial Court.
12. A consideration of the various arguments made by the learned
counsel for the appellants, I am of the view that those are in the nature of
finding fault with the investigation process and the minor contradictions
and inconsistency in the case of the prosecution. It is a settled law that
merely because there are minor discrepancies and defects in the
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
investigation, the same are not points for acquittal. In this case, the trial
Court after taking into consideration that the victim and the accused
drinking alcohol, even though the accused were charged for the offence
under Sections 302 and 307 rightly convicted the accused for the offence
under Sections 304(ii) and 324 of IPC, considering the drunken brawl.
13. The trial Court had considered the evidence of PW1, PW2 and
PW4 and has rightly come to a conclusion that the appellants are guilty
of the offences. Therefore, I am of the view that the arguments of the
learned counsel for the appellants that non-production of viscera report
and contradiction in the evidence regarding production of M.Os., and the
minor contradictions in the manner of arrest etc., will not come to the aid
of the appellants in turning the finding of guilty as one of acquittal.
14. As far as the identification parade is concerned, the evidence
of PW1, PW2 and PW4 is clearly and categorically that they knew the
accused and both groups have been playing cricket. It is only natural for
the said witnesses, considering the age, the accused as well as victim
would have know each other by their names alone while not knowing
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
other particulars, as they used to play cricket. Therefore, I reject the
submissions made by the learned counsel for the appellants.
15. Now, considering the sentence, the trial Court considering the
nature and circumstances of the case, imposed a maximum sentence of 5
years R.I. In this regard, the learned counsel for the appellants would
submit that admittedly, in this case, the accused and his friends and the
defacto complainant including the deceased and his friends are
youngsters playing cricket. Admittedly, both groups were drinking
alcohol on the eve of Deepavali. Even as per the case of the prosecution,
the sudden quarrel arose in drunken state of affairs of both sides, on
account of the vehicle of the accused being pulled down by the
complainant's side. There were three accused, in the case of which, one
is juvenile and therefore, the case was split-up and sent under the
Juvenile Justice Act. As far as the present appellants are concerned, they
were aged 21 and 22 years respectively, at the time of occurrence. Since
after the occurrence in the year 2016, the appellants have no other
antecedents. They have proper avocation as both are working as School
Bus drivers and are law abiding citizens. Pending investigation, they
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
were arrested and they were in jail about 60 days and post conviction,
they were in jail for about 7 months. Therefore, the learned counsel for
the appellants relied upon the two judgments of this Court. In a judgment
in Crl.A.No.260 of 2002 dated 08.02.2010 in the case of Munusamy v.
State by Inspector of Police, in which, the learned Judge of this Court
after considering the judgment of the Hon'ble Supreme Court of India in
this regard, considered the fact that when the young offenders are
involved in the offences, sending them to prison to few years would only
spoil them and has considered releasing them on good conduct as
otherwise the young offenders will become professional criminals and
thereafter, menace to the society. Therefore, ordered the accused to be
released under the provisions of Probation of Offenders Act, for a similar
offence under Section 304(ii) IPC, which again on a sudden provocation,
the accused stabbed the deceased. It is useful to extract the paragraph
Nos.15 to 21 of the said judgment.
''15. Regarding the sentence imposed on the
appellants-accused, learned counsel for the appellants-
accused would focus mainly upon the fact that A.1 is 65
years old and A.2 is married and having children and
since there was no pre-plan and the occurrence has taken
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
place out of sudden provocation in respect of a petty
quarrel with regard to theft of cock/hen, the period of
sentence already undergone by the appellants-A.1 and
A.2 is sufficient. He relied on the decision of a Gauhathi
High Court reported in 2007 Cri.L.J. (NOC) 863 (GAU.)
(Manir Ali Vs. State of Assam), wherein, it was held as
follows:
" ..... Accused found guilty of offence under S.304, Part II--
Accused an young person of 35 years at time of commission of
offence and he is the only earning member of his poor family--
Accused has already served his sentence more than 2-1/2 years and
was also in confinement as under-trial prisoner for more than six
months--On facts and circumstances, sentence of 5 years imposed
upon him commuted to period already undergone."
16. In the said case (2007 Cri.L.J. (NOC) 863
(GAU.)), the Court has awarded five years' imprisonment
and the accused has already undergone 2-1/2 years and
considering the age of the accused, the High Court of
Gauhathi, came to the conclusion that the period of
imprisonment already undergone by the accused is
sufficient. It is seen that on the date when the judgment of
conviction was passed, initially A.1 was arrested and
remanded on 27.9.1999 and enlarged on bail on
2.11.1999. Likewise, A.2 was arrested on 4.8.1999 and
enlarged on bail on 26.10.1999. So, A.1 and A.2 have not
even completed six months' imprisonment. In the
circumstances, the above decision is not applicable to the
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
facts of the present case.
17. Learned counsel for the appellants-accused
also relied upon the decision of the Supreme Court
reported in 1999 S.C.C. (Cri) 1046 (State of Karnataka
Vs. Muddappa), in which it was held as follows:
"2. The learned counsel for the appellant is not in a position
to assail the acquittal of the accused under Section 302 IPC, but he
vehemently contends that the Court did not bear in mind germane
considerations for releasing the accused on probation after
convicting him under Section 304 Part II IPC. Whether the benefit
of the Probation of Offenders Act could be extended in any
particular case depends upon the circumstances of that case.
Admittedly, there is no statutory bar for application of the Act to an
offence under Section 304 Part II where the maximum punishment
is neither death nor imprisonment for life. In that view of the matter
and on examining the impugned judgment of the High Court, we
find that the Court did consider the relevant material and then
came to the conclusion that the accused should be released on
probation by applying the provisions of Section 4 of the Probation
of Offenders Act. We see no infirmity with that order to be
interfered with by this Court after this length of time, more so when
nothing has been pointed out as to whether the accused has, in any
way, violated the terms and conditions of allowing him on
probation."
18. Relying on the said decision (1999 S.C.C. (Cri)
1046), learned counsel for the appellants-accused
submitted that the benefit of Section 4 of the Probation
of Offenders Act could be extended in any particular case
depending upon the facts and circumstances of that case.
19. Learned counsel for the appellants-accused
also relied upon the decision of the Supreme Court
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
reported in 1976 Cri.L.J. 1987(1) (Musakhan and others
Vs. State of Maharashtra), wherein, it was held as
follows:
"7. ..... The Probation of Offenders Act is a social legislation
which is meant to reform juvenile offenders so as to prevent them
from becoming hardened criminals by providing an educative and
reformative treatment to them by the Government. Unfortunately,
though the provisions of Section 6 of the Probation of Offenders Act
are mandatory, the Courts do not appear to make wise use of these
provisions which is necessary to protect our younger generation
from becoming professional criminals, and, therefore, a menace to
the society. ...."
20. Relying on the said decision (1976 Cri.L.J.
1987(1)), learned counsel for the appellants-accused
submits that the Probation of Offenders Act is a social
legislation which is meant to reform the offenders so as
to prevent them from becoming hardened criminals by
providing reformative treatment to them by the
Government.
21. While considering the circumstances of the
present case, due to petty quarrel in respect of theft of
cock/hen, out of sudden provocation, the occurrence has
taken place. There is no bad antecedent against the
appellants-accused and even after they have been
convicted for the offences and enlarged on bail, there is
no complaint of any offence. In such circumstances, I am
of the opinion that the appellants/A.1 and A.2 are entitled
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
to be given the benefit of Section 4 of the Probation of
Offenders Act.''
16. The learned counsel for the appellants again relied upon the
judgment of another learned Judge of this Court in Crl.A.No.607 of 2011
dated 20.07.2018 in the case of Murugan @ Murugavel vs. The State by
the Inspector of Police, in which, again the very same judgments were
relied upon and in respect of the offence under Section 304 (ii) IPC,
under similar circumstances, the learned Judge released the appellant
under the Probation of Offenders Act.
17. Per contra, the learned Government Advocate (Crl.Side) relied
upon the judgment of the Hon'ble Supreme Court of India in the case of
State of Rajasthan vs. Banwari Lal and Another reported in 2022 SCC
OnLine SC 428, in which, the Hon'ble Supreme Court had deprecated
the practice of the High Courts reducing the punishment as per the period
undergone.
18. I have considered the rival submissions made by both sides. As
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
far as the judgment of the Hon'ble Supreme Court is concerned, it is
relating to the quantum of sentence imposed, which only holds that the
High Court cannot mechanically reduce the sentence to the period
undergone and it does not relate to applying the Probation of Offenders
Act.
19. On the other hand, I am of the view that the above two
judgments of this Court, produced by the learned counsel for the
appellants, deal with the question of releasing the appellants under the
Probation of Offenders Act. In the said two judgments, this Court
considered the age of the accused and was also concerned with the very
same offence under Section 304(ii) IPC and that there was no previous
enmity between the parties and the entire sequence of events arising out
on the conduct of both sides and escalating and thereby leading to the
occurrence and in such cases, while the similarity of offences are also
taken into account, the other factor namely keeping the young offender,
who is otherwise leading a livelihood by proper profession, in prison for
a period of 5 years etc., would also result in spoiling the young offender
into professional criminal.
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
20. Therefore, in this case, I have considered the following factors:
i) The appellants have no other case, this is the first and only
occurrence as against them.
ii) The incident happened because of both sides consumed alcohol
and the accused were aged 21 and 22 years respectively.
iii) Both the accused are working as School Bus drivers and are
making proper livelihood by proper profession. The trial Court has
ordered to pay a compensation of Rs.50,000/- each to the family of the
deceased and they have already paid the same and before this Court, they
have also undertaken to pay a further compensation of Rs.1,50,000/-
each which can be paid to the family of the deceased.
21. Considering all the above circumstances, I am of the view that
while upholding the conviction, the appellants can be released under
Section 4 of the Probation of Offenders Act.
22. Therefore, I uphold the judgment of the learned III Additional
District and Sessions Judge, Coimbatore, dated 19.12.2018 in
S.C.No.133 of 2016, inasmuch as it relates to the conviction of the
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
appellants/accused 1 and 2 for the offence under Sections 294(b), 304(ii)
and 324 of IPC.
23. Instead of sentencing, the appellants/A.1 and A.2 are released
on probation of good conduct for a period of two years and in the
meantime, they shall maintain peace, be of good behaviour and shall
appear and receive sentence if they violate the bond during such period.
The appellants/A.1 and A.2 each shall execute a bond for a sum of
Rs.25,000/- (Rupees twenty five thousand only) with two sureties each
for a likesum to the satisfaction of the trial Court. Both the accused shall
also deposit a sum of Rs.1,50,000/- each, within a period of 8 weeks
from the date of receipt of a copy of this judgment. Already a sum of
Rs.1,00,000/- was paid before the trial Court, another sum of
Rs.3,00,000/- will be deposited by the appellants/accused 1 and 2 totally.
24. The entire sum of Rs.4,00,000/- shall be paid out as
compensation to the family of the deceased victim by the trial Court after
due verification within a period of four weeks from the date of deposit.
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
25. It is also made clear that no further extension of time will be
granted for depositing the amounts and if the appellants/accused 1 and 2
failed to deposit the said amount within time, as stated above, the
respondent/police is directed to bring the matter to the notice of this
Court upon which, this Court will again reconsider the question of
sentence.
26. In fine,
(a) the Criminal Appeal is partly allowed;
(b) The conviction of the 1st appellant/A1 for the offence under
Sections 304(ii) r/w. Section 34 IPC, 324 r/w. Section 34 IPC and
294(b) of IPC are confirmed;
(c) The conviction of the 2nd appellant/A2 for the offence under
Sections 304(ii) r/w. Section 34 IPC, 324 r/w. Section 34 IPC are
confirmed;
(d) As the appellants/A.1 and A.2 are entitled to be given the
benefit of Section 4 of the Probation of Offenders Act, the sentence
imposed on the first appellant/A.1 for the offence under Sections 304(ii)
r/w. 34 IPC and 324 r/w.34 IPC and 294(b) IPC and the sentence
imposed on the second appellant/A.2 for the offence under Sections
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
304(ii) r/w. 34 IPC and 324 r/w.34 IPC are set aside;
(e) the appellants shall execute a bond before the trial Court
undertaking that they will not involve in any other offence whatsoever
for a period of two years and further undertaking that they will appear
before this Court to take the sentence if they violate the bond;
(f) the accused shall deposit a sum of Rs.1,50,000/- each within a
period of 8 weeks from the date of receipt of a copy of the order;
(g) on such deposit, the said sum of Rs.3,00,000/- and the sum of
Rs.1,00,000/- already deposited in all totalling to Rs.4,00,000/- shall be
paid to the family member(s) of the deceased victim Murugan, by the
Trial Court.
30.06.2022
Index : Yes / No
Speaking Order : Yes / No
ssn
https://www.mhc.tn.gov.in/judis
Crl.A.No.16 of 2019
D.BHARATHA CHAKRAVARTHY, J.,
ssn
To
1. The III Additional District and Sessions Judge,
Coimbatore.
2. The Inspector of Police,
Annamalai Police Station,
Coimbatore.
3. The Public Prosecutor,
High Court of Madras.
Crl.A.No.16 of 2019
30.06.2022
https://www.mhc.tn.gov.in/judis
