Madras High Court
Anbarasu vs The State Represented By on 17 October, 2022
Crl.A(MD)No.333 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.10.2022
CORAM :
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
and
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.A(MD)No.333 of 2020
Anbarasu .. Appellant / 2nd Accused
Vs.
The State represented by,
The Inspector of Police,
Aralvaimozhi Police Station,
Kanyakumari District.
(Crime No.218 of 2009) .. Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 378(4) of Criminal
Procedure Code, 1973, against the judgment and order, dated 06.02.2018
in S.C.No.76 of 2010 passed by the learned Principal Sessions Judge,
Kanyakumari at Nagercoil.
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Crl.A(MD)No.333 of 2020
For Appellant : Mr.M.Jegadeesh Pandian
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
This criminal appal has been filed by the appellant/A2 against the
order and judgment of the Principal District and Sessions Court,
Nagercoil, made in S.C.No.76/2010, dated 06.02.2018, convicting the
appellant for an offence under Section 302 IPC and sentencing him to
undergo Life Imprisonment and to pay a fine of Rs.1000/- and in default,
to undergo one year simple imprisonment.
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Crl.A(MD)No.333 of 2020
2. The case of the prosecution runs as follows:
2.1. One Krishnaperumal set the law in motion by lodging
the complaint (Ex.P-19) and he is the maternal uncle of the deceased
Nagaraj. The mother of the said Nagaraj died long back and the deceased
was in the custody of the defacto complainant Krishnaperumal. The
deceased Nagaraj was also a friend of one Vettu Murugan @ Arumugam,
who was running a petty shop near to the shop of this appellant / first
accused. The electricity connection for the appellant's shop was taken
from the Arumugam Shop and all of a sudden, Arumugam disconnected
electricity supply to the appellant's shop, which leads to a dispute
between Arumugam and the appellant. At the instigation of Arumugam,
the deceased Nagaraj assaulted the appellant with an Aruval on
24.06.2009 and caused a grievous injury and on account of which, a case
was registered as against the deceased Nagaraj on the file of
Aralvaimozhi Police Station for the offence under Section 307 IPC. In
view of the registration of the case against him, the deceased Nagaraj
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Crl.A(MD)No.333 of 2020
was absconding and the defacto complainant Krishnaperumal supported
him by giving some money.
2.2. On the date of occurrence, on 05.07.2009,
Krishnaperumal along with his son Sudhan (P.W.-1) went to Beemanagar
cremation yard to meet the deceased and to give him some money. When
they were talking in front of the graveyard, this appellant, along with the
second accused, came in a TATA SUMO car bearing Registration No.
TN41D5499 to the place of occurrence. On seeing the accused, the
deceased Nagaraj, in order to escape from them, ran inside the graveyard.
But the second accused caught hold of him and therefore, the deceased
fell down and when he attempted to get up, this appellant / first accused
attacked him indiscriminately with an Aruval on his head and neck. After
the occurrence, the accused fled away from the place of occurrence and
thereafter, Krishnaperumal went to Aralvaimozhi Police Station and
lodged the complaint (Ex.P.19).
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Crl.A(MD)No.333 of 2020
2.3. On receipt of the complaint, the sub-Inspector of Police
(P.W.-13), Aralvaimozhi Police Station, registered a case in Crime No.
218 of 2009 on 06.07.2009 at about 03.00 a.m. as against the accused
Nos.1 and 2 for the offence under Section 302 IPC. The FIR (Ex.P-20)
was also sent to the Judicial Magistrate Court, Boothapandi through the
Head Constable (P.W.-11) and the same was received by the learned
Judicial Magistrate, Boothapandi, on 06.07.2009 at about 12.05 p.m.
2.4. The Inspector of Police, Aralvaimozhi Police Station
(P.W.-15) on receipt of the case in Crime No.218 of 2009 went to the
place of occurrence on 06.07.2009 at about 00.30 hrs. and prepared an
observation mahazar (Ex.P-1) and a rough sketch (Ex.P-24) in the
presence of Nagarajan (P.W.-2) and one Boopalan. He also recovered a
bloodstained gold flake cigarette box (M.0.-4), earth with and without
bloodstains (M.O.-6 and M.O.-7 respectively) and cement mortars with
and without bloodstains (M.Os.-8 and 9 respectively) and two pairs of
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Crl.A(MD)No.333 of 2020
beedi (M.O.-10) from the place of occurrence in the presence of the said
witnesses. He conducted inquest over the body of the deceased in the
Government Hospital, Asaripallam on 06.07.2009 at about 09.30 a.m.
and the inquest report is marked as Ex.P-25. Then, he forwarded the dead
body for autopsy to the Government Hospital, Asaripallam through the
Constable (P.W.-9).
2.5. Dr.Velmurugan of Kanyakumari Government Medical
College Hospital (P.W.-12) conducted autopsy on 06.07.2009 at about
2.45 p.m. and he noted down the following external injuries:
"1. 7x3xVisceral depth horizontal cut injury seen over
the front of neck. It is 8cm below the symphysis
menti. On examination the underlying muscles,
vessels, nerves, windpipe and feedpipe out at that
sites.
2. 9 x 2 x bone deep horizontal cut injury seen over
the right side of back of head just closed to the
occipital region.
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Crl.A(MD)No.333 of 2020
3. 17 x 5 cm bone deep horizontal cut injury seen over
the back of right side of neck seen 2 cm below the
previous injury. On examination, the underlying
muscles, vessels and nerves out at that sites."
He gave his final opinion that the deceased would appear to have died of
shock and hemorrhage due to cut injuries to the neck. The postmortem
certificate is marked as Ex.P-15.
2.6. On 07.07.2009, at about 06.00 a.m., the Inspector of
Police (P.W-15) arrested this appellant / first accused near Kandamedu
Colony Church in the presence of Kolappapillai (P.W-10), Village
Administrative Officer and the Village Assistant. The accused gave a
confession statement and pursuant to his confession statement, the TATA
Sumo car bearing Registration No.TN 41 D 5499 (M.O-1), a bill hook
(M.O.-2) and bloodstained track suit and T.Shirt (M.Os.-15 and 16) were
recovered under a cover of mahazar Ex.P-12 and Ex.P-13. He also
arrested the fourth accused on 17.07.2009.
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Crl.A(MD)No.333 of 2020
2.7. The further investigation was taken over by Thiru
Srikanth (P.W.-16), Inspector of Police, from 20.09.2009 and he arrested
the second accused on 22.11.2009 and recovered a bill hook, pursuant to
his confession statement. He also examined the Doctor (P.W.-12), who
conducted the autopsy and also collected the reports from the Forensic
Laboratory and filed a final report as against the appellant and three
others before the Judicial Magistrate Court, Boothapandi in P.R.C.No.2
of 2010 and the same was committed to the Court of Sessions,
Kanyakumari at Nagercoil and was taken up for trial in S.C.No.76/2010.
2.8. During the course of trial, 16 witnesses were examined
on the side of the prosecution and 29 documents were marked, besides
23 material objects.
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Crl.A(MD)No.333 of 2020
3. The Court below questioned the accused persons by
putting the incriminating materials that were collected in the course of
trial and the same was denied as false. The trial Court, on considering the
facts and circumstances of the case and on appreciation of evidence,
convicted A1 and A2 for offence under Section 302 IPC and sentenced
them to undergo Life Imprisonment. A3 and A4 were acquitted from all
charges. Aggrieved by the same, the appellant/A2 has filed the present
appeal.
4. Heard Mr.M.Jegadeesh Pandian, learned counsel
appearing for the appellant/A2 and Mr.A.Thiruvadi Kumar, learned
Additional Public Prosecutor appearing for the State.
5. This Court had an occasion to deal with the appeal filed
by A1 in Crl.A(MD)No.164/2018. The only evidence that was available
before this Court was the evidence of PW1, who is said to be an
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eyewitness. On appreciation of the evidence of PW1, this Court came to
a categoric conclusion that his presence in the scene of occurrence is
highly doubtful and that apart, his statement recorded under Section
161(3) Cr.P.C., reached the Magistrate Court with an exorbitant delay
which was not explained. Hence, this Court gave the benefit of doubt to
A1 and found that the prosecution did not prove the case beyond
reasonable doubts.
6. The above finding rendered with respect to A1, must
equally apply to the appellant/A2 also. This Court cannot give a different
twist to the evidence available on record and the same benefit of doubt
must be extended to the appellant also.
7. In the result,
(i) This Criminal Appeal stands allowed.
(ii) The conviction and sentence passed by the learned
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Principal Sessions Judge, Kanyakumari at Nagercoil against
the appellant/2nd accused in S.C.No.76 of 2010
dated 06.02.2018 is hereby set aside.
(iii) The appellant/A2 is acquitted from the charge and he
shall be released from the jail forthwith, if his custody is not
required in any other case. Fine amount, if any, paid by the
appellant/A2 shall be refunded to him.
[J.N.B, J.] & [N.A.V., J.]
17.10.2022
Index : Yes/No
Internet : Yes/No
PJL
To
1.The Principal Sessions Judge, Kanyakumari at Nagercoil.
2The Inspector of Police,
Aralvaimozhi Police Station,Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.A(MD)No.333 of 2020
J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
PJL
Judgment made in
Crl.A.(MD)No.333 of 2020
17.10.2022
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