Sasikumar vs The State
2022 Latest Caselaw 17145 Mad

                                                                                 Crl.A.No.295 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 02.11.2022

                                                        CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.A.No.295 of 2018

                Sasikumar                                      ...         Appellant

                                                          Vs

                The State, represented by
                The Deputy Superintendent of Police,
                Namakkal Sub Division,
                Namakkal District.
                (Crime No.148 of 2015)                         ...         Respondent

                Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal
                Procedure, to set aside the order of conviction dated 17.04.2018 passed in
                S.C.No.17 of 2014 on the file of the learned Principal Sessions Judge,
                Namakkal and acquit the appellant.

                                       For Petitioner    : Mr.S.Ganesh Kumar
                                       For Respondent    : Mr.A.Gopinath,
                                                           Government Advocate (Crl. Side)

                                                   JUDGMENT

This Criminal Appeal has been filed as against the order of conviction

dated 17.04.2018 passed in S.C.No.17 of 2014 on the file of the learned

Principal Sessions Judge, Namakkal.

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

2. The case of the prosecution is that one Varadharaj and Kalaignar @

Karunanithi are cousin brothers and belong to Pallar Community and are

members of the Scheduled Caste and they reside at Devendirar Street, Navani

and the accused Sasi Kumar belongs to Most Backward Class Community and

residing at Kannurpatti, Namakkal District. One Krishnamoorthy, the brother

of the accused, is running a chilly chicken shop, opposite to Puduchatram petrol

bunk. One Saravanan is also running a chilly chicken shop near the shop of

Krishnamoorthy. On 07.10.2012 at about 4.00 hours, there was a wordy quarrel

between the said Krishnamoorthy and Saravanan with regard to money dispute

between them. At that time, the said Kalaignar @ Karunanithi, who came

there along with Varatharaj, had advised them not to quarrel with one another.

On being informed by the said Krishnamoorthy over phone, the accused came

there with a wooden log and decided to do them away. In the above state of

affairs, on 07.10.2012 at about 4.00 p.m. in front of chilly chicken stall

opposite to TASMAC shop at Puduchatram within Puduchatram PS limits, the

accused, with intent to cause the death of Kalaignar @ Karunanithi and

Varatharaj, assaulted them with a wooden log and caused grievous injuries and

used filthy language and thereby the accused had committed an offence under

Section 307 IPC (2 counts). In the course of the same transaction, at the same

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

place, the accused, who is not a member of the Scheduled Caste and Scheduled

Tribe community insulted the said Kalaignar @ Karunanithi by abusing him

with filthy language and caused grievous injuries on him in public view and

thereby the accused had committed an offence punishable under Section 294(b)

IPC and 3(i)(x) of the Scheduled Case and Scheduled Tribes (Prevention of

Atrocities) Act 1989.

3. The Trial Court had taken cognizance for the offence punishable

under Sections 294(b), 307 (2 counts) of IPC and Section 3(i)(x) of the

Scheduled Case and Scheduled Tribes (Prevention of Atrocities) Act 1989

and in order to bring home the charge, the prosecution had examined P.Ws. 1 to

12 and marked Exs.P1 to P15 and on the side of the appellant no one was

examined and no document was marked.

4. On perusal of the oral and documentary evidence, the Trial Court

found the appellant guilty for the offence punishable under Sections 326, 324

and 294(b). He was sentenced to undergo three years rigorous imprisonment

and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for

one year for the offence under Section 326 of IPC. He was sentenced to

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

undergo one month rigorous imprisonment for the offence under Section 324 of

IPC and he was sentenced to pay a fine of Rs.1,000/- in default to undergo

Simple Imprisonment for one month for the offence under Section 294(b) IPC.

Aggrieved by the same, the present appeal.

5. The learned counsel appearing for the appellant would submit that

P.W.2 was a counsellor at the time of alleged occurrence and he was returning

after completing an agitation conducted by his party. The scene of occurrence

is admittedly the chilli chicken shop run by the brother of the appellant. The

victim voluntarily came to the scene of occurrence and interfered with the

business of the brother of the appellant to vacate the chilli chicken shop, who is

the competitor to the victim's relative Saravanan, he was examined as P.W.4.

There were two victims. Both were taken to Government Hospital immediately

after occurrence. Thereafter, they were taken to SKS Hospital at Salem.

However, no Accident Register was marked by the prosecution and the Doctor,

who had given first aid, also was not examined by the prosecution. Thereafter,

the victims were taken to Manipal Hospital at Salem. It is located far away

from the alleged scene of crime. There are so many hospital in between.

However, they have been taken particularly to the Manipal Hospital.

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

According to the learned counsel for the appellant, since the alleged victims

were under the influence of alcohol, they fought with each other and they

themselves fell down and sustained injuries.

6. Admittedly, there was a dispute between the brother of the

appellant and P.W.4. However, the brother of the appellant was not examined

by the prosecution. In fact, one of the witness deposed that the said

Krishnamoorthy, viz., the brother of the appellant, attacked him. However, he

was not implicated as an accused. The alleged place of occurrence is a busy

market area, where so many public movement was there. However, no

independent witness was examined and the prosecution examined close

relatives and friends of the victims. Therefore, they were all interested

witnesses and this is fatal to the case of the prosecution.

7. The Doctor, who had treated P.W.2, was examined as P.W.10

and he categorically deposed that P.W.2 himself had got admitted in the

hospital. However, P.W.2 deposed that immediately after occurrence, he had

fell unconscious and P.W.3 only had admitted in the hospital. Though P.W.10

stated that P.W.2 was taken to SKS Hospital, Salem, all the witnesses including

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

P.Ws.1, 2, 3 and 12 had categorically denied the treatment in SKS Hospital.

Therefore, these contradictions are fatal to the case of the prosecution and even

then, the Trial Court unfortunately convicted the appellant.

8. The learned Government Advocate (Criminal Side) submitted

that in order to bring home the charges, the prosecution had examined P.Ws. 1

to 12 and marked Exs.P1 to P15. The victims were examined as P.Ws.1

and 2. P.W.1 deposed that on 07.10.2012 his cousin brother viz., P.W.2 came

there and there was a quarrel between P.W.4 and one Krishnamoorthy with

regard to money dispute. The said Krishnamoorhty pushed him and as such,

P.W.2 questioned them about their quarrel and advised them to settle the issue

amicably. Immediately the said Krishnamoorthy informed the appellant over

phone and the appellant came there with wooden log and assaulted P.W.1 and

by using his caste name and abused him in filthy language. Therefore, P.W.2

fell down and became unconscious. When it was questioned by P.W.1, he was

also assaulted by the appellant on his forehead and back side of his head.

Immediately P.W.3 had taken them to Manipal Hospital, Salem. P.W.10 treated

them and he recorded the Accident Register, which was marked as Ex.P.10 and

also issued wound certificate for P.W.1, which was marked as Ex.P11. It was

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

also duly corroborated by the other prosecution witnesses. The Trial Court

rightly found the appellant guilty for the offence punishable under Section 326,

324 and 294(b) IPC.

9. Heard, Mr.S.Ganesh Kumar, learned counsel appearing for the

appellant and Mr.A.Gopinath, learned Government Advocate (Criminal Side)

appearing for the respondent and perused the materials available on record.

10. Admittedly, the brother of the appellant and P.W.4 are running

chilli chicken shop in front of TASMAC Bar. There was enmity between them

with regard to money. While being so, on 07.10.2012, there was a quarrel

between them. At that juncture, P.W.2 intercepted the quarrel and advised to

settle the issue amicably. Immediately the brother of the appellant, viz.,

Krishnamoorhty, informed the appellant over phone and he came there with

wooden log. The appellant attacked P.Ws.1 and 2, due to which they sustained

injuries. However, the prosecution failed to implicate the said Krishnamoorthy

as an accused. According to the prosecution, he only informed the brother and

both attacked P.Ws.1 and 2. In fact, the said Krishnamoorthy initially attacked

one Saravanan, who was examined as P.W.4. Even then, he was not implicated

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

as an accused. In fact, the prosecution has also failed to examine him as one of

the witness to prove his case. It is fatal to the case of the prosecution.

Immediately, after occurrence, P.Ws.1 and 2 were taken to the Government

Hospital, Rasipuram, where they refused to treat them. Thereafter, they were

taken to SKS Hospital at Salem. Though, they were given first aid, the hospital

refused to admit them as in patient. Again, they were taken to Manipal

Hospital at Salem, where the Accident Register was recorded and the victims

were given wound certificate, which were marked as Exs.P8 to P11.

11. P.W.10-Doctor, who treated P.Ws.1 and 2, deposed that the victims

were taken to SKS Hospital, Salem. Thereafter, they were admitted in Manipal

Hospital, Salem. P.W.3, who brought them to hospital, deposed that the

victims were taken to the Government Hospital, Rasipuram. However, they

refused to treat them. Thereafter, they were taken them to Manipal Hospital,

Salem. He has suppressed the fact that initially the victims had taken to SKS

Hospital and they were given first aid. The prosecution suppressed the fact the

initially the victims were taken to the Government Hospital, Rasipuram and

thereafter taken to the SKS Hospital, Salem. It shows that the victims were

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

under influence of Alcohol, they themselves fell down and sustained injuries, it

is also seen that the occurrence took place in the District of Namakkal.

Whereas, the Manipal Hospital is situated far away from the town i.e., more

than 10 kms. In between the place of occurrence and Manipal Hospital, there

are so many Government Hospitals and private hospitals. The victims were

particularly taken to the Manipal Hospital, Salem, is not explained by the

prosecution. Though, it is stated hat the victims were taken to SKS Hospital,

Salem, the Accident Register was not recorded, which is fatal to the case of the

prosecution. Further, there was contradictions between P.Ws.1 to 3, as to who

had taken the victims to hospital.

12. A perusal of Exs.P8 and P10 reveals that one Ganesh Shankar

brought them to Manipal Hospital, Salem. Admittedly, the said Ganesh

Shankar was not examined by the prosecution. Whereas, P.W.3 deposed that

he only had taken them to hospital initially to Government Hospital, Rasipuram

and they were refused to treat them and thereafter taken them to Manipal

Hospital, Salem. Therefore, the prosecution failed to prove its case beyond any

reasonable doubt and the conviction imposed by the Trial Court cannot be

sustained as against the appellant.

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

13. In view of the above, the order of conviction and sentence

dated 17.04.2018 passed in S.C.No.17 of 2014 on the file of the learned

Principal Sessions Judge, Namakkal, is hereby set aside. Accordingly, this

Criminal Appeal stands allowed. Fine amount, if any, paid shall be refunded to

the appellant forthwith. Bail bonds, if any, executed shall stand discharged.

02.11.2022 Index : Yes/No Internet : Yes/No Speaking/Non Speaking order Lpp

To

1. The Principal Sessions Judge, Namakkal.

2. The Deputy Superintendent of Police, Namakkal Sub Division, Namakkal District.

3. The Public Prosecutor, High Court, Madrs.

https://www.mhc.tn.gov.in/judis

Crl.A.No.295 of 2018

G.K.ILANTHIRAIYAN. J,

Lpp

Crl.A.No.295 of 2018

02.11.2022

https://www.mhc.tn.gov.in/judis