Madras High Court

Dasarathan vs State Rep By on 19 October, 2022

                                                                               Crl.A.No.210 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 19.10.2022

                                                       CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.A.No.210 of 2018
                Dasarathan                                                 ... Appellant/A1
                                                         Vs.

                State rep by
                Inspector of Police,
                Pernambet Police Station,
                Vellore
                crime No.237 of 2016                                               ... Respondent


                PRAYER:
                          Criminal Appeal filed under Section 374 (2) of Code of Criminal

                Procedure, to aside the conviction and sentence imposed upon the appellant by

                the Principal Sessions Judge, Vellore, Vellore District in Sessions Case No.113

                of 2016 and to allow the appeal.


                                       For Appellant   : Mr.V.Karthik,
                                                         Senior Counsel
                                                         for Mr.A.E.Ravichandran

                                       For Respondent : Mr.A.Gopinath,
                                                       Government Advocate(crl.side)



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                                                                                      Crl.A.No.210 of 2018

                                                       JUDGMENT

This criminal appeal is directed as against the judgment passed in

SC.No.113 of 2016 on the file of the learned Principal Sessions Judge, Vellore,

Vellore District thereby convicted the appellant for the offence punishable under

Section 304(Part II) of IPC.

2. The case of the prosecution is that the first accused is the son of the

second accused. Both are residing at Sarangal Village, Masigam Post,

Pernambut Taluk, Vellore District. The father of the first accused and the father

of the deceased are brothers. There was enmity previously among them. While

being so, on 16.04.2016 at about 04.30 p.m., when the defacto complainant

was proceeding through the ridge belong to the second accused, they scolded

him with filthy language and also torn his shirt. It was informed to his family

members and at about 05.30 p.m. on the same day, the deceased, the defacto

complainant along with their mother went to the house of the accused persons

and questioned about the act of the second accused. Both the accused enraged

over this and with the intention to the cause death, they pelted stones on the

deceased. The first accused pelted stones on the instigation of the second

accused to commit murder by intentionally and knowingly, caused death of the

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Crl.A.No.210 of 2018

deceased by forcibly beat his head with half brikelin by saying 'die'. Again, he

beat on his head and chest. Immediatly, he was taken to hospital and while he

was on the way to hospital, he passed away. On the complaint lodged by the

defacto complainant, the respondent registered FIR in crime No.237 of 2016 for

the offence punishable under Section 302 of IPC r/w Section 114 of IPC. After

completion of investigation, the respondent filed final report and the same has

been taken cognizance by the trial court in SC.No.113 of 2013.

3. On the side of the prosecution, they examined PW1 to PW15 and

marked Ex.P1 to Ex.P16. The prosecution also produced material objects i.e.

MO.1 to MO.6. On the side of the defence, they examined DW1 and marked

Ex.D1 and Ex.D2. On perusal of oral and documentary evidence, the trial court

found the appellant guilty for the offence under Section 304 (Part II) of IPC and

sentenced him to undergo rigorous imprisonment for five years. The second

accused was found not guilty and acquitted her. Aggrieved by the same, this

criminal appeal has been filed.

4. The learned Senior Counsel appearing for the appellant would

submit that the defacto complainant and the deceased along with their mother

went to the house of the appellant. Therefore, there was absolutely no motive or https://www.mhc.tn.gov.in/judis

Crl.A.No.210 of 2018

intention to do away the life of the deceased. The word 'die' uttered by the

appellant was implicated to strengthen the case of the prosecution. PW1 to PW3

are interested eye witnesses. PW4 to PW7 are independent witnesses. They

categorially deposed that at the time of occurrence, both the parties i.e. the

deceased family and the appellant family pelted stones on each other, due to

which the deceased sustained head injury and chest injury, thereby he died.

Admittedly, the deceased and his family members i.e. PW1 to PW3 went to the

house of the appellant and they only pelted stones on the appellant. In order to

protect himself, the appellant pelted stones on them. When it being so, the

prosecution completely suppressed the said fact and laid final report only as

against the appellant.

4.1 He further submitted that no charge was framed as against the

deceased. In order to prove the same, the appellant examined DW1 who treated

the appellant's mother for the injury sustained in the occurrence and marked

medical document as Ex.D1. She also pointed out that PW4 to PW6

categorically deposed that the deceased also pelted stones on the appellant's

mother and due to which she sustained injuries. In support of his contention, he

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Crl.A.No.210 of 2018

relied upon the judgment of the Hon'ble Supreme Court of India in the case of

Lakshmi Singh and Others Vs. State of Bihar reported in (1976) 4 SCC 394.

4.2 There is no evidence on record to show that a wordy quarrel

occurred at 4.30 p.m. on 16.04.2016 between PW1 and A2, and PW1, PW2,

PW3 and the deceased have assumed the role of aggressors by going to the

house of A1 to pick up quarrel. As per the evidence of PW4 and PW5, there

was throwing of bricks by both the parties, wherein A2 had sustained bleeding

injuries on her right arm which is also admitted by PW1, PW2, PW4. However,

PW15 has not conducted any investigation regarding the same. There is

inconsistency regarding the version of the complaint being registered and the

non examination of the scribe of the complaint is fatal to the prosecution.

Further, the FIR was sent to the concerned Magistrate only on the next day i.e.

17.04.2016 at 12.30 p.m. Though the deceased was declared dead by PW9 as

early as 6.00 p.m., the deceased was not taken to the hospital but was taken

home and the complaint was given only after two hours. As per PW1, on

16.04.2016, he saw the accused in the police station, after the case was

registered and the body of the deceased was taken, whereas PW15 has shown

the arrest of A1 and A2 only on 17.04.2016 at 12.00 p.m. which only shows

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that the alleged confession and recovery are all stage managed by the

prosecution. There is total contradiction and inconsistency in the deposition of

PW1, PW2, PW3 as to whether A1 had hit the deceased with a brick on his

forehead and chest or whether he threw the brick which fell on the deceased. No

conclusive opinion given by PW14 on the injuries sustained by the deceased

and whether it was sufficient to cause death of the deceased.

5. Per contra, the learned Government Advocate(crl.side) appearing

for the respondent / police submitted that in order to prove the charge for the

offence under Section 302 of IPC, the prosecution examined PW1 to PW15 and

marked Ex.P1 to Ex.P16. The prosecution also produced material objects i.e.

M.O.1 to M.O.6. PW1 to PW3 were eye witnesses to the occurrence. The

brother of the deceased was examined as PW1, who categorically deposed that

when he was proceeding to his house from his land, the second accused scolded

him with filthy languages and also torn his shirt. It was informed to his family

members and all went to the house of the appellant to question the same. Both

the accused i.e. A1 and A2 enraged over this and in furtherance with common

intention to do away the life of the deceased, the first accused, on the instigation

of the second accused, by intentionally pelted half brikelin on the head of the

deceased. He also hit the chest of the deceased by the same half brikelin, due to https://www.mhc.tn.gov.in/judis

Crl.A.No.210 of 2018

which the deceased sustained injuries and on the way to hospital, he died. It is

also corroborated by PW2 to PW6. The doctor who conducted autopsy on the

deceased was examined as PW14 and he found injuries on the deceased and the

injuries are corroborated the evidence of PW1 to PW6. However, there was no

material to attract the offence under Section 302 of IPC and as such, the trial

court rightly convicted the appellant for the offence under Section 304(Part II)

of IPC and acquitted the second accused.

6. Heard, Mr.V.Karthik, learned Senior Counsel appearing for the

appellant and Mr.A.Gopinath, learned Government Advocate (crl.side)

appearing for the respondent / police.

7. The deceased and the appellant are cousin brothers. There was

previous enmity between them. On the date of occurrence, when the PW1 was

proceeding in front of the house of the appellant, the appellant's mother scolded

him and also torn his shirt. It was informed to the family members of PW1 and

all went to the house of the appellant to question the same. When it was

questioned to the appellant and his mother, there was a quarrel between them.

According to PW1 to PW3, the appellant on the instigation of his mother, had

beaten the deceased on his head by half brikelin. Again, by the same brikelin, https://www.mhc.tn.gov.in/judis

Crl.A.No.210 of 2018

he also beat the deceased on his chest. Therefore, the deceased sustained head

injury as well as injury on his chest, due to which he died.

8. The prosecution also examined PW4 to PW6 who were also eye

witnesses to the occurrence. On perusal of their evidence, revealed that when

the deceased and PW1 questioned about the dispute, the appellant pelted stones

on the forehead of the deceased and chest. Immediately, he was taken to

hospital. They further deposed that at the time of occurrence, the house of the

appellant was locked. Due to the said occurrence, the second accused i.e. the

mother of the appellant also sustained injury. Both the parties pelted stones

against each other. It is also corroborated by PW6 and PW7. The relevant

portion of depositions of PW4, PW5 & PW7 is extracted hereunder:

PW4

rk;gtk; ele;jnghJ 1k; vjphpapd; tPl;L nfl;L g{l;lg;gl;L ,Ue;jJ/ nfl;Lf;Fk;. rz;il ele;j ,lj;jpw;Fk; ,ilna 20 mo J}uk; ,Uf;Fk;/ 2k; vjphpapd; tyJ KH';ifapy; mog;gl;L uj;jf;fhak; Vw;gl;oUe;jJ/ 2k; vjphpaplk;. vg;nghJ mog;gl;lJ vd;gij ehd; nfl;ftpy;iy/ 2k; vjphpf;F vg;nghJ mog;gl;lJ vd;gJ bjhpahJ/ J}h;thrYf;F uj;jf;fhak; Vw;gltpy;iy/ v';fsplk; nghd; ,Ue;jJ/ rz;il ele;jjhf ngh;zhk;gl;L

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fhty; epiyaj;jpw;F nghd; vJt[k; bra;atpy;iy/ ,uz;Lg[wKk; fy; tPrpf;bfhz;lhh;fs;/ vt;tst[ J}uj;jpy;

                          ,Ue;J tPrpdhh;fs; vd;W bjhpahJ/
                          PW5

                                  ,U       jug;gpdUk;          xUth;      kPJ      xUth;      fw;fis
                           nghl;Lf;bfhz;lhh;fs;/         2k;      vjphpf;F       tyJ       KH';ifapy;

uj;jf;fhak; Vw;gl;lij ehd; ghh;ff; tpy;iy/ 2k; vjphpf;F mog;gl;lij ehd; ghh;ff; tpy;iy/ 10 mo J}uj;jpy; ,Ue;j fy;iy vLj;J vwpe;jhh;/ nghyprhh; tprhhpf;Fk;nghJ 1k; vjphp fy;iy vLj;J tprpwp nghl;ljhf brhy;ypapUf;fpnwd;/ vd;dplk; bry;nghd; ,Ue;jJ/ rk;gtj;ij gw;wp nghyprhUf;F jfty; vJt[k; bjhptpf;ftpy;iy/ PW7

vjphpapd; tPlo; w;F nfl;ow;F btspapy; jhd; rz;il ele;jJ/ nfl;L g{l;lg;gl;L ,Ue;jjh vd;gij ehd; ghh;ff; tpy;iy/ 2k; vjphpf;F fy; mog;gl;L uj;jf;fhak; Vw;gl;L ,Ue;jJ/ gpwF kWj;J ehd; mij ghh;ff; tpy;iy/ 5 mo J}uj;jpy; ,Ue;J fy;iy vwpe;Jf;bfhz;lhh;fs;/ fhrpf;Fk;. mth;

                          mk;kht[fF
                                  ; k;      mog;gl;lJ/          J}h;thrY        kidtpf;Fk;      fhak;
                          Vw;gl;lJ/      fhrpf;F    jiyapy;        mog;gl;lJ/      gpnukhit      fPnH

js;sptpl;lhh;fs;/ mog;gl;ljh vd;gJ bjhpahJ/ ehd; tUtjw;F

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Crl.A.No.210 of 2018

Kd;ng 2k; vjphpf;F mog;gl;L ,Ue;jJ/ 1k; vjphp. J}h;thrYit fy;yhy; moj;jhh;/

9. Thus, it is clear that both the parties pelted stones against each

other, due to which the deceased sustained head injury and died. It is also

corroborated by DW1, who treated the second accused i.e. the mother of the

appellant who deposed that she sustained injury. The medical report was also

marked as Ex.D1. However, prosecution completely suppressed the said fact.

10. In this regard, the learned Senior Counsel appearing for the

appellant relied upon the judgment in the case of Lakshmi Singh and Others

Vs. State of Bihar reported in (1976) 4 SCC 394, wherein the Hon'ble Supreme

Court of India held as follows:

12. ........ Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the

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Crl.A.No.210 of 2018

origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. .......

This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above.

11. Thus it is clear that the prosecution failed to explain the injuries on

the second accused. The omission on the part of the prosecution to explain the

injuries on the person of the accused assumes much greater importance where

the evidence consists of interested or inimical witnesses or where the defence

gives a version which competes in probability with that of the prosedition one.

That apart, even according to the case of the prosecution, the deceased and

PW1 to PW3 went to the house of the appellant and started quarrel with them.

However, the trial court without considering the facts and circumstances,

convicted the appellant for the offence under Section 304(Part II) of IPC though

the prosecution failed to prove the case beyond any doubt and as such, the

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