Madras High Court
Seeman vs State Rep By on 6 September, 2022
Crl. A(MD)No.467 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH Court
Dated : 06.09.2022
CORAM:
THE HONOURABLE Mrs.JUSTICE J.NISHA BANU
AND
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
Crl. A. (MD)No.467 of 2019
Seeman .. Petitioner/Accused No.1
Vs.
State rep by
The Inspector of Police,
Thalavaipuram Police Station,
Virudhunagar District.
(in Crime No.89 of 2016) .. Respondent/Complainant
Appeal filed under Section 374 of Criminal Procedure Code, to call
for the records relating to the judgment dated 30.08.2019 in S.C.No.
188/2016, on the file of the learned Additional Sessions Judge,
Virudhunagar District at Srivilliputhur and set aside the same by acquiting
the appellant and allow this criminal appeal.
1/15
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Crl. A(MD)No.467 of 2019
For Appellant : Mr.V.Kathirvelu for
Mr.K.Prabhu
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
J.NISHA BANU
AND
N.ANAND VENKATESH
The appellant, aggrieved by the judgment passed in S.C.No.188/2016
dated 30.08.2019, on the file of the Additional Sessions Judge,
Virudhunagar District at Srivilliputhur, convicting the appellant for an
offence under Section 302 IPC and sentencing him to undergo life
imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo six
months simple imprisonment, has filed this appeal.
2.The case of the prosecution is that the complainant namely P.W.1 is
the mother of the deceased Murugan. The appellant herein (A1) is the
brother of P.W.-1. A1 and A2 are said to be co-workers in a construction
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Crl. A(MD)No.467 of 2019
site. The deceased Murugan had a love affair with one Renugadevi
(P.W.-11). When a marriage proposal was mooted, A1 is said to have
objected by stating that the deceased Murugan is an alcoholic and he did not
have any permanent job and accordingly, the marriage proposal did not go
through. The deceased seems to have repeatedly quarreled with A1 stating
that he was the reason for stopping the marriage with P.W.-11. This resulted
in a strained relationship between A1 and the deceased.
2.1. The further case of the prosecution is that on 20.02.2016 at about
18 hrs., A1 and A2 were working in front of a newly constructed house of
A2 and at that point of time, the deceased came to that spot and on seeing
him, A1 is said to have attacked the deceased with a mason scale in his head
and A2 is said to have attacked the deceased with a steel rod on the head of
the deceased. Thereafter, both the accused persons ran away from the scene
of occurrence. This incident is said to have been witnessed by P.W.-2.
2.2. The deceased sustained injuries in his head and blood oozed out
from his left nostril. He was immediately taken in an auto-rickshaw
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Crl. A(MD)No.467 of 2019
belonging to P.W.17 and was brought to a hospital at Dhalavaipuram and
from there, he was taken to a hospital at Rajapalayam Sandhaikadai. Since
they refused to give treatment, the deceased was taken to the Government
Hospital at Rajapalayam. The Doctor, who was examined as P.W.-18, gave
the first aid treatment and also recorded the injuries sustained by the
deceased in the accident Register marked as Ex.P-4. Thereafter, the
deceased was referred to the Government Rajaji Hospital, at Madurai and he
was admitted as an inpatient. The injured Murugan died on 23.02.2016.
2.3. In the meantime, on 21.02.2016, an information was received
from the Rajapalayam Government Hospital about the incident and P.W.-12,
who was the Head Constable of Rajapalayam South Police Station, went to
the hospital at about 10.00 a.m. and enquired P.W.1 and the complaint was
reduced to writing. Based on the same, an FIR was registered in Crime No.
89/2016 for offences under Sections 294(b), 324 and 506(ii) IPC. On the
demise of Murugan, the FIR was altered to offences under Sections 294(b)
and 302 IPC.
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Crl. A(MD)No.467 of 2019
2.4. The investigation was taken over by Sub Inspector of Police, P.W.
23 and thereafter, it was taken over by P.W.26. The statement of the
witnesses was recorded under Section 161(3) Cr.P.C. The Investigating
Officer conducted inquest and prepared the inquest report marked as
Ex.P16. He received the information that the accused persons surrendered
before the Sattur Court. Steps were taken to take police custody of the
accused persons and accordingly, a petition was filed before the Judicial
Magistrate, Rajapalayam and police custody was granted on 25.02.2016.
Based on the confession of the accused persons in the presence of
witnesses, the mason scale [M.O-1] and steel rod [M.O.-2] were recovered.
After collecting the postmortem report and other scientific reports, the
investigation was completed and final report was laid before the Judicial
Magistrate, Rajapalayam.
3. The case was committed to the file of Principal District and
Sessions Judge, Srivilliputhur and it was made over to the Additional
District and Sessions Court, Srivilliputhur. Charges were framed against the
appellant for offences under Sections 294(b) and 302 IPC.
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Crl. A(MD)No.467 of 2019
4. The trial Court had considered the evidence of P.W.1 to P.W.26 and
after analyzing Ex.P1 to Ex.P16 and M.Os.1 and 2, questioned the accused
persons under Section 313 (1)(a) of Cr.P.C. on the incriminating materials
that were against them and the same was denied by the accused persons.
5. On considering the facts and circumstances of the case and on
appreciating the oral and documentary evidence, the trial Court found that
the prosecution has established the case beyond reasonable doubt and
accordingly convicted the appellant for an offence under Section 302 IPC
and sentenced him to undergo life imprisonment and to pay fine of
Rs.5,000/-, in default, to undergo simple imprisonment for six months.
6. Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor for the respondent State.
7. As a first step, this Court has to carefully analyze the evidence
available on record and appreciate the evidence and come to the conclusion
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Crl. A(MD)No.467 of 2019
as to whether the prosecution has made out a case against the appellant
beyond reasonable doubt. Only on completion of this process, this Court
will go to the next step of considering whether the homicide resulted in a
murder or it is a culpable homicide not amounting to murder and
accordingly impose the punishment.
8. In the present case, P.W.-2, P.W.6, P.W.8, P.W.9 and P.W.16 were
examined by the prosecution as eyewitnesses and except P.W.2, all the other
witnesses turned hostile. It, therefore, becomes imperative to first have a
look at the evidence of P.W.-2. This witness is a relative of the deceased
and he is also well known to the accused persons. He also states that he was
aware about the strained relationship between the deceased and A1. In the
course of evidence, he specifically states that A1 attacked the deceased with
a mason scale on the back of his head and A2 attacked with a steel rod on
the head of the deceased. This witness also speaks about hiring the services
of P.W.17 and carrying the deceased initially to a hospital at Dhalavaipuram
and thereafter to a hospital at Rajapalayam Sandhaikadai and ultimately to
the Government Hospital, Rajapalayam.
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Crl. A(MD)No.467 of 2019
9. The auto driver was examined as P.W.-17 and he specifically states
that the deceased was accompanied only by two women and there was no
male member, who travelled in the auto rickshaw. This evidence of P.W.-17
throws a doubt as to whether P.W.-2 accompanied the deceased in the auto
rickshaw.
10. The prosecution did not produce any material to show or to
establish that the deceased was taken to various hospitals before reaching
the Government Hospital, Rajapalayam. This aspect becomes very
important since the incident had taken place at about 6 p.m. and the accident
register was prepared by P.W.-18 only at 11.40 p.m. There is absolutely no
material to show as to what happened during this period of 5 hrs. and 40
minutes, after the incident took place.
11. In the accident register, which was marked as Ex.P.4, the name of
P.W.2 has been mentioned as the person, who brought the deceased to the
hospital. P.W.18, in his evidence, has stated that he was not able to
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Crl. A(MD)No.467 of 2019
ascertain the reason for the deceased sustaining injuries. P.W.2, in his
evidence, states that he informed P.W.18 about the manner in which the
injuries were sustained. If P.W.2 had really stated the manner in which the
injuries were sustained, there was no reason for P.W.18 not to have recorded
the same in the accident register. Hence, there is a doubt as to whether
P.W.2 actually saw the incident and accompanied the deceased and was
present with the deceased till the deceased was treated by P.W.18 in the
Government Hospital, Rajapalayam.
12. P.W.-2 in his evidence talks about the deceased being attacked by
A1 with the mason scale on the back of his head. However, in the accident
register, the injuries that are noted confines only to the contusion along the
eyebrows. P.W.24, who conducted the postmortem, recorded the following
injuries in the postmortem report, marked as Ex.P14:
“The following ante mortem injuries are noted on the
body:
1.Abrasion 3 cm x 2 cm noted on middle of forehead.
2.Abrasion 2 cm x 1 cm noted on left forehead.
3.Abrasion 1 cm x 1 cm noted on tip of nose.
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Crl. A(MD)No.467 of 2019
4.Abrasion 1 cm x 1 cm noted on lateral part of left
cheek.
5.'C' shaped surgical sutured wound 32 cm x 1 cm x
brain deep noted on left fronto parieto temporal region.”
13. It is clear from the above that the injuries were only in the
forehead and the final opinion marked as Ex.P.15 shows that the deceased
died of cranio cerebral injuries. In view of the same, there is an apparent
contradiction between the ocular evidence and the medical evidence on the
manner in which the injuries were sustained by the deceased. This aspect
once again throws a doubt as to whether P.W.2 was present in the scene of
occurrence at the time of incident.
14. The Doctor belonging to the Government Hospital Rajapalayam,
who was examined as P.W.18, has stated that when the deceased was
brought to the hospital, there was a strong smell of liquor emanating from
the deceased. While he was asked to explain the same, in the cross-
examination, the Doctor states that if the deceased had consumed lesser
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Crl. A(MD)No.467 of 2019
amount of alcohol, the smell will not be there after some time and the fact
that there was alcohol smell even after six hrs., shows that the deceased was
heavily drunk.
15. The evidence of P.W.2 does not anywhere speak about the
inebriated condition of the deceased, at the time of incident. Except the
ipse dixit of P.W.2, the presence of P.W.2 either at the time of the occurrence
or immediately after the occurrence is not substantiated by any material and
the only material that shows the presence of P.W.2 along with the deceased
was when the accident register was prepared at about 11.40 p.m. Thus,
there is absolutely no explanation as to why P.W.2 was absent for nearly five
hrs. and 40 minutes. There was no enmity between P.W.2 and the Auto
Driver P.W.17 and therefore, if really P.W.2 travelled with the deceased in
the auto, it would have been stated so by P.W.-17. Since P.W.17 speaks
about only two women, who accompanied the deceased in the auto
rickshaw, the circumstances shows that P.W.2 had got involved much later
after the incident took place. In view of the same, the evidence of P.W.2 as
if he witnessed the incident becomes totally unbelievable.
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Crl. A(MD)No.467 of 2019
16. The incident had taken place on 20.02.2016 at about 18 hrs., and
the FIR marked as Ex.P10 came to be registered only on 21.02.2016 based
on the statement recorded by P.W.22, after getting information from the
Government Hospital, Rajapalayam. P.W.2 in his evidence specifically
stated that he was with the deceased till 11.30 p.m. on 20.02.2016 and
thereafter he returned back home. Thereafter, he never took efforts to give a
complaint to the police and in fact, he came to know about the demise of
Murugan only at a later point of time. This conduct of P.W.2 is quite
unnatural and he is said to have witnessed the incident and hence, the
natural conduct would be to give complaint to the police. However, no such
effort was taken and the FIR itself came to be registered based on the
complaint given by P.W.1 by way of a statement in the hospital. This is yet
another aspect, which throws a lot of doubt about the evidence of P.W.2.
The fact that all the other eyewitnesses turned hostile and the evidence of
P.W.2 is not totally believable, due to the reasons stated above, this Court
has to necessarily come to the conclusion that the prosecution failed to
prove the case against the appellant beyond reasonable doubt, more
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Crl. A(MD)No.467 of 2019
particularly, in the absence of any corroboration to the evidence of P.W.2.
17. In view of the above discussion, this Court is left with no other
option except to interfere with the judgment of the trial Court and acquit the
appellant from the charge under Section 302 IPC. Accordingly, this
Criminal Appeal is allowed and the appellant is acquitted of the charge
under Section 302 IPC. Bail bond executed shall stand terminated. The fine
amount, if any, paid shall be refunded to him.
[J.N.B., J.] & [N.A.V., J.]
06.09.2022
Index : Yes/No
Internet : Yes
RR
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Crl. A(MD)No.467 of 2019
To
1.The Additional Sessions Judge,
Virudhunagar District at Srivilliputhur
2.The Inspector of Police,
Thalavaipuram Police Station,
Virudhunagar 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.467 of 2019
J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
RR
Judgment made in
Crl.A.(MD)No.467 of 2019
06.09.2022
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