Suresh Alias Suresh Kumar vs The Inspector Of Police
2023 Latest Caselaw 4727 Mad

                                                                                  Crl.A.No.720 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 25.04.2023

                                                        CORAM :

                         THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                 Crl.A.No.720 of 2016

                  Suresh Alias Suresh Kumar                                ...Appellant

                                                         Versus
                  The Inspector of Police,
                  Annur, Police Station,
                  Coimbatore.                                              ...Respondent

                  Prayer: Criminal Appeal filed under Section 374 (2) of Criminal Procedure
                  Code, to set aside order of conviction and sentence passed by the learned I-
                  Additional District and Sessions Judge, Coimbatore, made in S.C.No.162 of
                  2015, dated 28.09.2016.

                                        For Appellant     : Mr. A.E. Ravi Chandram

                                        For Respondent    : Mr. J. Subbiah,
                                                            Government Advocate (Crl.Side)

                                                    JUDGMENT

On 28.02.2014, when P.W.10, Senthil Kumar was on duty at Annur

Police Station, Coimbatore, P.W.1 appeared before him and lodged a

complaint to the effect that the day before the complaint i.e., on 27.02.2014,

during the night, himself and P.W.1, Sampath Kumar, and the Victim/one https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

Mani Gounder @ Palanisamy were sitting and consuming liquor outside KSR

Maligai Shop along with the Accused /Suresh. During that time, a dispute as to

giving way to Suresh's lands by the deceased cropped up and the deceased

asserted that he will not give way. There was a wordy quarrel. Thereafter, the

deceased started for home by getting onto his TVS 50 Moped. When he sat on

it, the enraged accused shouted at him as to how he will not give him way and

picked up a stone near the Moped and hit him on his head, resulting in serious

bleeding injury. P.W.1 & P.W.2 immediately tried to lift him to send him to

hospital. But, the deceased was not conscious. They immediately shouted at

the accused for he caused the death of the deceased and thereupon the accused

hastily left the scene in his bike.

2. On the strength of this complaint, a case in Crime No.87 of 2014 was

registered for the offence punishable under Section 302 of the Indian Penal

Code. Thereafter, P.W.11 initially took up and thereafter P.W.12 completed

the investigation and laid a charge sheet proposing that the accused committed

an offence under Section 302 of IPC. The same was taken on file as

P.R.C.No.17 of 2015, on the file of the learned District-cum-Judicial

Magistrate, Mettupalayam. Upon appearance of the accused and furnishing of

copies, the case was committed to the learned District and Sessions Judge, https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

Coimbatore, wherein the case was taken on file as S.C.No.162 of 2015 and

was made over to the learned First Additional District and Sessions Judge,

Coimbatore.

2.1. After considering the materials on record and submissions made on

either side, on 29.09.2015, a charge under Section 302 of IPC., was framed by

the Trial Court. Upon being questioned, the accused denied the charge and

stood trial.

2.2. So as to bring home the charge, the prosecution examined One

Rajagopal, the first informant and the eye-witness to the incident as P.W.1.

The other eye-witness to the case, namely, One Sampath Kumar was examined

as P.W.2. The owner of the nearby shop, who immediately came to the spot,

namely, Shanmugasundaram was examined as P.W.3. The daughter of the

deceased, Sangeetha, was examined as P.W.4. One Dharmalingam, who was

witness to the Observation Mahazar was examined as P.W.5. One Murugasen

who witnessed the confession statement leading to the recovery of the bike

used by the accused was examined as P.W.6. The Doctor, who conducted the

Postmortem, was examined as P.W.7. One K.Venkateswaran, the Forensic

Analyst, who examined the material objects and the bloodstains over it, was https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

examined as P.W.8. One Baskaran, who handed over the body of the deceased

to the relatives was examined as P.W.9. Senthil Kumar, the Sub-Inspector of

Police, who registered the First Information Report, was examined as P.W.10.

One Sekaran, the Inspector of Police, who initially conducted the

investigation, was examined as P.W.11. Anandh @ Arokiyaraj, the Inspector

of Police, who completed the investigation and laid the charge sheet, was

examined as P.W.12.

2.3. On behalf of the prosecution, the complaint lodged by P.W.1 was

marked as Ex.P-1. The Seizure Mahazar leading to the seizure of the stones

and the sample of earth taken from the place of occurrence was marked as

Ex.P-2. The Seizure Mahazar leading to the seizure of the chappal and TVS-

50 Moped belonging to the accused was marked as Ex.P-3. The Observation

Mahazar was marked as Ex.P-4. The Seizure Mahazar leading to the seizure of

the motorbike, pursuant to the confession of the accused was marked as Ex.P-

5 and the admissible portion of the confession was marked as Ex.P-6. The

requisition given for conducting Postmortem was marked as Ex.P-7. The

Postmortem Certificate was marked as Ex.P-8. The Viscera Report was

marked as Ex.P-9 and the final opinion of P.W.7 was marked as Ex.P-10. The

reports which were given by the Forensic Department by examining the M.Os https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

and the earth, were marked as Exs.P-11 & P-12 respectively. The report of

P.W.9 about handing over the body and the belongings to the relatives of the

deceased was marked as Ex.P-13. The printed First Information Report was

marked as Ex.P-14. The Rough Sketch was marked as Ex.P-15. The Inquest

Report was marked as Ex.P-16.

2.4. This apart, the large stone and the small stone, which were used for

the commission of the offence were produced as M.O.1 & M.O.2. The

Chappals, TVS 50 Moped, Bloodstained soil, other soil, Shirt, Baniyan, Dhoti

and Underwear, were produced as M.Os.3 to 10.

2.5. Upon being questioned about the material evidence on record and

the incriminating circumstances, under Section 313 of Cr.P.C., the accused

denied the same as false and made a statement that he was not at all in the

place of occurrence and went as tourist driver and came to his Village on the

next day morning. There was no evidence let in on behalf of the defence.

2.6. Thereafter, the Trial Court proceeded to hear the learned Additional

Public Prosecutor on behalf of the State and the learned Counsel for the

accused, and by a Judgment dated 28.09.2016 found that the prosecution https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

though proved the incident, did not prove any premeditated intention

therefore, held that the accused got angry due to the wordy quarrel committed

the offence and therefore, found the accused of the offence punishable under

Section 304(II) of IPC., and sentenced him to undergo 5 years Rigorous

Imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo Simple

Imprisonment for further period of 3 months. Aggrieved by the same, the

present appeal is filed before this Court.

3. Heard Mr. A.E. Ravi Chandram, learned Counsel for the appellant

and Mr. J. Subbiah, learned Government Advocate (Crl.side) appearing for the

respondent.

4. Mr. A.E. Ravi Chandram, learned Counsel for the appellant taking

this Court through the evidence on record, would submit that the entire case of

the prosecution is fraught with so many contradictions and inconsistencies.

Finding of the guilt cannot be recorded and on a cumulative reading of the

entire evidence on record and the Trial Court ought not to have convicted the

accused. He would submit that even though only one stone was said to have

used by the accused for the commission of the offence, two stones were

produced and out of the two stones produced, only one stone was sent for https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

Forensic examination. The stones were not properly marked through the

Observation Mahazar witness. Even the witnesses also not spoke about the use

of the other stone. Therefore, there is grave doubt as to the very M.O.1 and

M.O.2, which were produced by the prosecution and the same appear to be

artificial. Secondly, he would contend that the version of the alleged eye-

witnesses, namely, P.W.1 & P.W.2 are grossly inconsistent with the medical

evidence on record. On a perusal of Ex.P-8 /Postmortem Certificate, it would

be clear that as many as 11 injuries throughout the face are alleged to have

been found on the body of the victim, while as per the eye witnesses there was

only one throw of the stone.

5. This apart, the evidence of P.W.7 is to the effect that the skull itself

has been fractured and the injury is on the rear side also. Therefore, such kinds

of injuries could not have happened in the manner as narrated by P.W.1.

Therefore, the very case of the prosecution is suspicious. He would further

contend that the alleged stones were not shown to the Doctor at the earliest

point of time, so as to get his opinion. Apart from that, it can be seen that the

version of P.W.1 itself is contrary to the original complaint given by him,

which says, as if the accused was already present from the beginning, but, in

the chief-examination, he deposed as if the accused came later. Admittedly, https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

there were injuries on the person of the accused, which were not at all

explained by the prosecution. Further, in this case, even though P.W.1 and

P.W.2 are said to have been sitting together with the victim/deceased, the very

fact that they did not do anything to save the deceased from the attack of the

accused to itself would throw suspicion as to whether they were actually

present in the scene of occurrence or not. The prosecution could not examine

any independent witness as P.W.1 and P.W.2 happened to be relatives of the

deceased/victim. M.O.1 & M.O.2 were also not shown to P.W.5 who was the

Mahazar witness in whose presence the said M.O's were seized.

5.1. In support of his submissions, the learned Counsel relied upon the

Judgment of this Court, in Dasarathan Vs. State1, more specifically paragraph

No.11 to contend that when the prosecution has not explained the injuries of

the person of the accused, then the same would enure to the benefit of the

accused and the accused should be acquitted. The learned Counsel also relied

upon the Judgment of the Hon'ble Supreme Court of India, in Rahul Vs. State

of Delhi, Ministry of Home Affairs and Others2, for the proposition that when

the prosecution has not discharged its onus in bringing the guilt by adducing

proper and appropriate evidence, merely on the moral grounds as if what will

https://www.mhc.tn.gov.in/judis 2 (2023) 1 SCC 83

Crl.A.No.720 of 2016

be the view of the victim's family or the societal condemnation should not be

factors for this Court to render a finding of guilt, rather the Court should

always follow the principles of proof beyond doubt while rendering the

finding of the guilt. The learned Counsel further relied upon the Judgment of

the Hon'ble Supreme Court of India, in Amar Singh Vs. State (NCT of

Delhi)3, more specifically for the proposition that if the medical evidence is

inconsistent with the version of the eye-witness, that will throw a suspicion as

to the very presence of the eye-witness. Further, the failure of the Investigation

Officer in not showing the weapon used by the accused to the Doctor who

conducted the Postmortem and gave the opinion, would also be a serious lapse

raising the doubt as to the veracity of the case of the prosecution. Summarizing

his submissions, the learned Counsel would also submit that everything in this

case, including the time and occurrence of the death, no alcohol being present

in the Viscera and the contradictory version of P.W.1, P.W.2 & P.W.3 would

render the case of the prosecution doubful. Therefore, the appeal is liable to be

allowed.

6. Per contra, Mr. J.Subbiah, learned Government Advocate (Criminal

side) appearing for the respondent would submit that in this case the

prosecution has proved the offence to the hilt by examining P.W.1 & P.W.2 https://www.mhc.tn.gov.in/judis 3 (2020) 19 SCC 165

Crl.A.No.720 of 2016

who are the eye-witness. In spite of the cross-examination the defence was not

able to extract any favourable answer from the eye-witnesses, who were

natural witnesses on the spot and there is no iota of doubt whatsoever as to

their presence in the spot. This apart, the medical evidence would only confirm

the version and is not opposed to the oral evidence on record. From the type of

stone used for the commission of the offence, it can be seen that it will break

into two with the kind of force which the accused used on the deceased. The

stone is very abrasive, uneven and coarse and hence all the injuries which are

mentioned in the Postmortem Certificate are possible on account of the act of

the accused. As a matter of fact, the Doctor/P.W.7, had categorically deposed

that the injuries could happen by the type of act done by the accused. This

apart, the said stone was also sent for the Forensic examination and the report

was also filed. Therefore, when it is a clear and categorical case of the

prosecution that in the presence of eye-witnesses of P.W.1 & P.W.2, the

accused hit the victim and caused his death, no exception whatsoever can be

taken for the finding by the Trial Court, therefore, the appeal should be

dismissed.

7. I have considered the rival submissions made on either side and

perused the material records of the case. In this case, even though the learned https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

Counsel for the appellant laboured much to takes this Court to the alleged

inconsistencies in the evidence, in my view, none of the alleged

inconsistencies are material in nature and at best are minor discrepancies.

Therefore, the argument about cumulative reading of the evidence showing

discrepancies/inconsistencies is liable to be rejected. From the photographs of

the Material Objects send by the Trial Court upon specific request by this

Court, I am of the view that though the word 'stone' used in the First

Information Report as well as in the Judgment of the Trial Court, what is

produced as M.O.1 & M.O.2 which is used by the accused is a loose sediment

which is called in Tamil “fl;o” or “Xilf;fy;” in the slang of the instant

area. A perusal of both the stones would clearly be intandem with the answer

elicited by the Court itself from P.W.1 that when the accused used stone, it

was a single stone and on account of throwing and hitting, it broke into two

pieces. The nature of the said stone is also very uneven and abrasive, therefore,

it could have resulted in the injuries as listed in the Postmortem Report.

8. The contentions of the learned Counsel that both pieces of the stone

should have been sent to the Forensic examination, will also not lead the

accused anywhere, because, the bloodstain was found in one piece of the two,

which was sent to the Forensic examination, which would be enough and it is https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

not necessary to send both the pieces. Further, in the instant case, the alleged

incident is a single blow and therefore, there was no question of the eye-

witnesses trying to stop the accused. The learned Counsel would also point out

that in the Mahazar witness states that only one stone which was recovered,

but, considering the fact that it was one stone which was broken into two and

the very Ex.P-2, which clearly shows both the broken stones, again the said

contradiction can only be a minor discrepancy and not a material

contradiction. But, however, on a cumulative reading of the entire evidence

and the perusal of the photographs of M.O.1 & M.O.2, it is clear that there was

no premeditated intention.

8.1. Secondly, the accused, the deceased and P.W.1 & P.W.2 all were

sitting in a place and were consuming alcohol in the night. It can be seen from

the evidence of P.W.1 & P.W.2 corroborated with the evidence of P.W.3

where there is arose a drunken brawl and after the wordy quarrel, the deceased

stared in his TVS-50 Moped to go to his home, while the accused in a sudden

fit of rage shouted and instantly picked up the said M.O.1 & M.O.2 and threw

it on the deceased/victim which fell on the head/face of the deceased, resulting

in the deceased falling down instantly and being found unconscious, which

lead to his death. Therefore, it can be seen from the evidence of the https://www.mhc.tn.gov.in/judis

Crl.A.No.720 of 2016

prosecution itself that there was a grave and sudden provocation which arose

due to the drunken brawl.

8.2. Thirdly, on an examination of M.O.1 & M.O.2, even together,

which is a loose sediment, it cannot be termed as a stone so strong or a

dangerous weapon, which was picked up by the accused. Therefore, when the

accused picked up M.O.1 & M.O.2 and hit the deceased, it cannot be said that

he did it with the knowledge of that it is likely to cause the death of the victim.

Therefore, I am unable to uphold the conviction of the Trial Court for the

offence punishable under Section 304(II) of IPC.

8.3. On the other hand, the act of the accused would only amount to the

lesser offence of causing grievous hurt out of sudden provocation which is

punishable under Section 335 of IPC. In the instant case, hurting was not only

dangerous, as the deceased was sitting in the TVS -50 Moped, it actually

resulted in death as the victim fell down on account of the blow and suffered

head injuries, it can be held that the hurt caused by the accused is grievous in

nature and accordingly, I hold that the accused is guilty of the offence

punishable under Section 335 of IPC.

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

Crl.A.No.720 of 2016

9. Now coming to the sentence, considering the age of the victim being

64 years, the age of the accused, which is presently 39 years and the fact that

he is living with his family consisting of two children, and considering the

manner in which the incident happened after the drunken brawl, I am of the

view, that a sentence for a term of Rigorous Imprisonment for a period of two

years would be appropriate in the instant case.

10. In the Result :

(i) The conviction and sentence imposed by the learned First Additional

District and Sessions Judge, Coimbatore, in S.C.No.162 of 2015 by a

Judgment dated 28.09.2016, is set aside, inasmuch as it convicts the appellant

to the offence punishable under Section 304(II) of IPC., and the conviction is

modified into one under Section 335 of IPC

(ii) The appellant is sentenced to undergo Rigorous Imprisonment for a

period of two years and to pay a fine of Rs.2,000/-.

(iii) It is needless to mention that the said fine amount can be adjusted

from among the sum of Rs.5,000/- already paid by the accused, pursuant to the

Judgment of the Trial Court.

(iv) The accused is entitled to set off the period of imprisonment already

undergone by him.

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

Crl.A.No.720 of 2016

(v) The accused shall surrender before the Trial Court within a period of

two weeks from today, to undergo the remaining part of the sentence.

25.04.2023

Index:Yes Speaking order Neutral Citation : Yes

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To

1.The I-Additional District and Sessions Judge, Coimbatore.

2.The Inspector of Police, Annur, Police Station, Coimbatore.

3.The Public Prosecutor, Madras High Court.

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

Crl.A.No.720 of 2016

D.BHARATHA CHAKRAVARTHY, J.

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Crl.A.No.720 of 2016

25.04.2023

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