Madras High Court
Rajiv Gandhi vs State Represented By on 20 September, 2022
Crl. A(MD)No.404 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH Court
Dated : 20.09.2022
CORAM:
THE HONOURABLE Mrs.JUSTICE J.NISHA BANU
AND
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
Crl. A. (MD)No.404 of 2019
1.Rajiv Gandhi
2.Nagalakshmi
3.Kamala
4.Alagumalai
5.Murugan
6.Sanjeeviammal .. Appellants/Accused 1to6
Vs.
State represented by
The Inspector of Police
Chinnamanoor Police Station,
Theni
(Crime No.334/2016) .. Respondent/Complainant
Appeal filed under Section 397(3) & 401 of Criminal Procedure
Code, to call for the records pertaining to the judgment in S.C.No.171 of
2016 on the file of the Additional District and Sessions Court, (Fast Track
Court), Theni, dated 20.08.2019 and set aside the same.
1/14
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
For Appellants : Mr.C.Vakeeswaran
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
J.NISHA BANU
AND
N.ANAND VENKATESH
This Criminal Appeal has been filed against the judgment passed by
the Additional District and Sessions Court (Fast Track Court), Theni, in
S.C.No.171 of 2016, dated 20.08.2019, wherein the appellants were
convicted and sentenced in the following manner:
S.No. Rank of the Accused Offence for which Sentence
convicted
1. A1 to A4 Section 148 IPC Six months Rigorous
Imprisonment
Section 302 IPC Life imprisonment
and fine of Rs.5,000/-
and in default to
undergo six months
Simple
Imprisonment.
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
2. A5 & A6 Section 302 IPC r/w. Life imprisonment
149 IPC and fine of Rs.5,000/-
and in default to
undergo six months
Simple imprisonment.
2.The case of the prosecution is that A2 is the wife of A1, A3 is the
sister of A1, A4 is the husband of A3, A5 is the uncle of A1 and A6 is the
wife of A5 and all of them were living at North Street, Markaiyankottai,
Uthamapalayam Taluk, Theni District. The deceased Rajkumar is the son of
P.W.1. There was a pathway dispute between the parties. A1 is said to have
caused hindrance in the pathway and the same was questioned by P.W.3 and
there was some wordy altercation between A1 and P.W.3. On 15.05.2016 at
about 09.30 a.m., the deceased Rajkumar is said to have used the pathway
and this was questioned by A1 to A6 and A1 attacked the deceased with
Wooden log in his head, A2 to A4 attacked the deceased with coconut
petiole and A5 & A6 kicked the deceased Rajkumar. As a result, the
deceased sustained head injuries and also injuries in his right chest. The
deceased ultimately, succumbed to the injuries on 16.05.2016 at about 07.40
a.m.
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
3.P.W.1 is said to have given a complaint on 15.05.2016 and an FIR
came to be registered by P.W.10, marked as Ex.P.8 for offence under
Sections 324 and 506(i) IPC against A1 to A4. On the demise of the
deceased, an alteration report was submitted to the concerned Court under
Ex.P.10 and the offence was altered into Section 302 IPC against A1 to A3.
The initial investigation was conducted by P.W.10 and thereafter, the
investigation was taken over by P.W.15. On completion of investigation,
final report came to be filed against A1 to A6 and it was committed to the
Court below and charges were framed against A1 to A6 for offence under
Sections 147, 148, 302 r/w. 149 IPC. The prosecution examined P.W.1 to
P.W.15 and Ex.P.1 to Ex.P.16 were marked and M.O.1 and M.O.2 were
identified and marked. The incriminating materials against the accused
persons that arose in the course of trial was put to the accused persons by
questioning them under Section 313(1)(b) Cr.P.C., and they denied the same
as false.
4.The trial Court on considering the facts and circumstances of the
case and on appreciation of the evidence available on record, came to a
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
conclusion that the prosecution has been proved the case beyond reasonable
doubt against the accused persons and hence, convicted and sentenced them
in the manner mentioned supra.
5.Heard Mr.C.Vakeeswaran, learned counsel appearing for the
appellants and Mr.A.Thiruvadikumar, learned Additional Public Prosecutor
appearing for the respondent.
6.This Court has carefully considered the submissions made on either
side and perused the materials available on record.
7.It is clear from the evidence of the father of the deceased who was
examined as P.W.1 that he was not an eye witness to this case and he came
to know about the incident on being informed by P.W.2 who was the
brother-in-law of the deceased. He states in his evidence that the deceased
was lying unconscious in the scene of occurrence and he was taken in an
auto rickshaw by P.W.1 and his son Nagendra Prabhu to Chinnamanoor
General Hospital. He was given first aid treatment and thereafter he was
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
referred to Rajaji Government Hospital at Madurai and his son died on
16.05.2016 at 07.40 a.m. In his cross-examination, this witness states that he
went and saw his son in the Chinnamanoor General Hospital and that he
does not know who admitted his son in the said Hospital. P.W.1 further
states that he came to know about the incident only after he was informed
by P.W.2.
8.P.W.2 is the brother-in-law of the deceased and he was also
examined by the prosecution as an eye witness. This witness in his cross-
examination states that he also sustained simple injury in the incident and he
also accompanied P.W.1 and his son Nagendra Prabhu to Chinnamanoor
General Hospital. He further states that the complaint was prepared by
Nagendra Prabhu and it was given by P.W.1. If really P.W.2 had seen the
incident and had accompanied P.W.1 and his son Nagendra Prabhu to the
hospital, there would have been some mentioning about the same in the
complaint marked as Ex.P.1. Whereas in the complaint, there is absolutely
no mentioning about P.W.2.
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
9.P.W.3 is the brother of the deceased and he was also examined as an
eye witness in this case. He states that P.W.2 informed him about the
incident and thereafter he ran to the place of occurrence. It is quite
interesting when this witness states that he saw the deceased and A1
fighting in the scene of occurrence. This evidence of P.W.3 runs contrary to
P.W.1 and P.W.2, who have stated that they saw the deceased lying
unconscious in the place of occurrence. This witness has also admitted in
the cross-examination that he had also attacked A1 and as a result, A1
sustained injuries. Even though the witness claims to have travelled along
with P.W.1 and Nagendra Prabhu in the Auto rickshaw, that statement runs
contrary to the evidence of P.W.1, who does not talk about P.W.3
accompanying him to the hospital.
10.The evidence of P.W.1 to P.W.3 to the effect that they took the
deceased in an Auto rickshaw to Chinnamanoor General Hospital is
completely falsified by the evidence of P.W.9 who was the Doctor who
examined both the deceased as well as A.1. The Accident Register, after
examining A1, is marked as Ex.P.6 and the Accident Register after
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
examining the deceased was marked as Ex.P.7. The Doctor categorically
states that Rajkumar came to the Hospital on his own and no one
accompanied him. The Doctor further states that Rajkumar was conscious
enough to state that he was attacked by four known persons and thereafter
he was referred to the Government Hospital, Theni for further treatment.
This evidence given by the Doctor throws a lot of doubt on the evidence
tendered by P.W.1 to P.W.3 with regard to they witnessing the incident and
bringing the deceased to the hospital. Curiously the auto rickshaw driver
who took them to the hospital was not even examined by the prosecution.
11.The FIR was initially registered by P.W.10 and he deposed that he
registered the FIR on 15.15.2016 at 12 'o' clock and he went to the place of
incident at about 01.00 p.m. If really the deceased had travelled in a two
wheeler when he was intercepted and attacked in the disputed pathway, the
two wheeler must be present in the scene of occurrence. In fact, P.W.10 says
that the two wheeler was present at the scene of occurrence. However, in the
sketch that was prepared by him and which was marked as Ex.P.9, there is
absolutely no indication about the two wheeler in the scene of occurrence. It
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
can be further seen that in the complaint given by P.W.1, only the name of
A.1 has been mentioned. Whereas the FIR that was registered based on the
complaint, contained the specific names of A1 to A4. When this was put to
P.W.10 in the course of cross-examination, he states that he examined the
deceased at Chinnamanoor Government Hospital and he gave their names.
Apart from that, P.W.1 also specifically gave the names of A.1 to A4. If
really P.W.10 had recorded the statement of the deceased and collected the
names of A1 to A4, there was no reason to wait for a complaint to be given
by P.W.1 and thereafter register the FIR. The very statement recorded from
the deceased could have been taken as a complaint and FIR could have been
registered. Therefore, the explanation given by P.W.10 for specific
mentioning of the names of A.1 to A4 in the FIR is not convincing. It is also
clear that there is no reason as to why P.W.10 waited for P.W.1 to give the
complaint upto 12 'o' clock, when he had the opportunity to hear about the
incident from the deceased himself.
12.The incident, as projected by P.W.1 to P.W.3 once again becomes
unbelievable in view of the evidence of the postmortem Doctor examined as
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
P.W.14 through whom the postmortem certificate was marked as Ex.P.13.
The injuries that were recorded in the postmortem certificate are extracted
hereunder:
“1.Contusion 8cm x 3cm noted on outer aspect of right
side chest.
2.Surgical sutured wound 24cm x 1 cm x brain deep
noted on right pareto temporo occipital region.
3.Surgical sutured wound 26cm x 1cm x brain deep
noted on left pareito temporo occipital region.
4.Drainage tube noted on mid parietal region.”
13.It is clear from the above that out of four injuries, two of the
injuries are surgical sutured wounds in the left and right parieto temporo
occipital region. There is absolutely no explanation as to how there are two
surgical sutured wounds and who conducted the surgery and sutured
wounds for the deceased.
14.The evidence of the Investigation Officer P.W.15 also assumes
significance. He states that to go to Chinnamanoor Government Hospital
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
from the scene of occurrence, one must cross the police station which was
hardly 3 kms from the scene of occurrence. In that case, for the incident that
took place at 09.30 a.m in the morning, there is no reason for giving the
complaint at 12 noon, if really P.W.1 had seen the incident and had gone to
the hospital along with deceased. Even P.W.15 was not able to give a clear
explanation as to how the specific names of A1 to A4 was mentioned in the
FIR, when it was absent in the complaint. He also admits that M.O.1 and
M.O.2 were not even sent for scientific analysis to get a report. The
Investigation Officer was also not able to give any explanation as to why
Nagendra Prabhu and the auto driver were not examined as witnesses in this
case. Similarly the two wheeler which was driven by the deceased at the
time of incident was not even recovered and sent for the report of the
Vehicle Inspector. The vital organs were not sent for chemical analysis to
get the viscera report. The Investigation Officer also did not take effort to
record the statement of the Doctor who conducted the operation for the
deceased, since two surgical wounds were found at the time of conducting
the postmortem. It is quite unfortunate that the Investigation Officer did not
investigate the reason for A1 to sustain injuries in this case and this factor
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
becomes important, since in a case of this nature, it is the duty of the
investigation officer to find out the real aggressor.
15.The conspectus of the above discussion leads to the only
conclusion that the prosecution has not proved the guilt of the accused
persons beyond reasonable doubts. In fact, there are absolutely no materials
against A2 to A6 and it is not known as to how they are roped in this case.
The benefit of doubt in this case has to go in favour of the accused persons.
This Court has to necessarily comment upon the manner in which the trial
Court has imposed punishment against the accused persons. Insofar as A.1
to A4 are concerned, the punishment was imposed under Sections 148 and
302 IPC. If A1 to A6 have formed into an unlawful assembly, it is not
known as to how the trial Court did not punish A1 to A4 under Section 149
r/w 302 IPC. However, coming to A5 and A6, the trial Court convicted A5
and A6 for offence under Sections 302 r/w 149 IPC. This only shows that
the trial Judge lacks fundamentals in framing of charges and ultimately
convicting and sentencing the accused persons. Since this Court is
interfering with the judgment of the trial Court, it is not necessary for this
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
Court to go into the issue of prejudice caused to the accused persons due to
the improper manner in which the conviction and sentence was imposed
against them.
16.In the result, the judgment of the Additional District and Sessions
Court (Fast Track Court) Theni, made in S.C.No.171 of 2016 dated
20.08.2019, is hereby set aside. The bail bonds executed by the accused
persons shall stand cancelled and the fine amount, if any paid by them shall
be refunded to them. This Criminal Appeal accordingly allowed.
[J.N.B., J.] & [N.A.V., J.]
20.09.2022
Index : Yes/No
Internet : Yes
Ns
https://www.mhc.tn.gov.in/judis
Crl. A(MD)No.404 of 2019
J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
Ns
To
1.The Additional District and Sessions Court,
(Fast Track Court), Theni.
2.The Inspector of Police
Chinnamanoor Police Station,
Theni
3.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
Crl. A. (MD)No.404 of 2019
20.09.2022
https://www.mhc.tn.gov.in/judis
