Madras High Court
Samuthiraraj vs State Represented By on 4 January, 2023
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 04/01/2023
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A(MD)No.855 of 2022
and
Crl.MP(MD)No.15610 of 2022
Samuthiraraj : Appellant/A1
Vs.
State represented by
The Inspector of Police,
Kuruvikulam Police Station,
Tirunelveli District.
(Crime No.114 of 2010) : Respondent/Complainant
Prayer: Criminal Appeal is filed under 374(2) of
the Criminal Procedure Code, to call for the records from
the lower court in SC No.123 of 2011 on the file of the
Assistant Sessions Judge, Sankarankoil and set aside the
judgment, dated 29/11/2022 by acquitting the accused.
For Appellant : Mr.V.Kathirvelu
Senior counsel
for Mr.K.Prabhu
For Respondent : Mr.B.Nambiselvan
Additional Public Prosector
https://www.mhc.tn.gov.in/judis
2
J U D G M E N T
This Criminal Appeal has been filed seeking in
order to set aside the judgment, dated 29/11/2022 passed
in SC No.123 of 2011 by the Assistant Sessions Judge,
Sankarankoil.
2.The case of the prosecution in brief:-
On 13/07/2010 at about 5.45 pm, the witness Babu
was clearing the village. Due to previous enmity, the
accused persons prevented him to do the clearing work. By
abusing in filthy language, A1 namely Samuthiraraja
caused assault with aruval with an intention to kill him
and thereby caused injury to the witness Babu and another
witness Alagaiya. A2-Iyyappan caused stab injury. A3-
Danamani caused injury with stones. Over the above said
occurrence, a case was registered and after completing
the formalities of investigation, final report was filed.
After committal proceedings, the trial was undertaken in
SC No.123 of 2011 by the Assistant Sessions Judge,
Sankarankoil.
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3.Before the trial court, on the side of the
prosecution, 15 witnesses were examined and 15 documents
marked, apart from 5 material objects. On the side of the
accused, no oral and documentary evidence was adduced.
4.At the conclusion of the trial, the trial court
found that the appellant/A1 found guilty for the offences
under sections 294(b) and 307 IPC (2 count) and
accordingly, convicted and sentenced him to undergo 10
days Simple Imprisonment for the offence under section
294(b) IPC and to undergo 10 years Rigorous Imprisonment
for each count and imposed a fine of Rs.1,000/- with
default clause for the offence under section 307 IPC (2
counts).
5.Now challenging the above said conviction and
sentence, the appeal has been preferred by the first
accused.
6.Heard both sides.
7.The learned Senior counsel, who is appearing for
the appellant raised a simple point.
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8.Originally only 3 accused persons were charge
sheeted and later, the 4th accused was ordered to be added
as an accused and the case against him was split up and
proceeded in SC No.753 of 2017. So we are not concerned
about the 4th accused now. As stated above, only this
appellant/A1 has been found guilty under sections 294(b)
and 307 IPC for two counts.
9.In the above said backdrop, let us go to the
record of proceedings. This is the only issue that has
been raised in this case. On 15/04/2015, chief
examination of PW1 has been taken and it was deferred.
Later, on 29/04/2015, the chief examination of PW2 and
PW3 were taken and on that date, the prosecution filed a
petition under section 319 Cr.P.C. So again cross
examination of PW2 and PW3 was deferred. Subsequently,
on 30/08/2016, after a year, after complying the process,
the 4th accused was added. Again the proceedings started
afresh. On 17/10/2016, charges were altered. Again
summons were issued to PW1 to PW3 to appear, on
07/11/2016. But PW1 and PW3 did not appear. Only PW2 was
present. So he was proceeded further. On 14/11/2016,
petition under section 319(4) Cr.P.C was filed in Crl.M.P
https://www.mhc.tn.gov.in/judis
No.243 of 2016 and that was allowed, on 21/02/2017 and
further proceedings were ordered to be undertaken, on
27/03/2017. At that time, again the prosecution sought
permission from the court to recall PW1 to PW3 for
further examination in chief with regard to the
alteration of the charges. So that was allowed, all the
witnesses were recalled. When the matter was called, on
06/03/2017, it was submitted that PW1 was reported to be
dead. So the cross examination of PW1 could not be
undertaken and other witnesses proceeded and judgment has
been rendered.
10.In the light of the above said record of
proceedings, according to the appellant, the trial court
has made an observation in that judgment. Para 23 of the
judgment runs like this:-
“23.fw;wwpe;j 1 Mk; vjphp jug;g[ tHf;fwpQh; jdJ
thJiuapy; m.rh.1 FWf;Ftprhuiz bra;ag;gLtjw;F
Kd;dh; ,we;Jtpl;lgoahy; m.rh.1d; rhl;rpak; Vw;g[ilajy;y vd
vLj;Jiuj;jhh;. nkYk; tHf;Ff; nfhg;gpid Muhaifapy; m.rh.1
15.04.2014 md;W Kjy; tprhuiz bra;ag;gl;l nghJ vjphpfs;
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jug;gpy; jhf;fy; bra;ag;gl;l kDtpd; mog;gilapy; m.rh.1d;
Fwf;Ftprhuiz xj;jp itf;fgl;L gpd;dh; m.rh.1 FWf;F tprhuizf;F
kPz;Lk; miHf;fg;gLtjw;Fs; ,we;J ngha[s;shh.; vdnt m.rh.1 Kjy;
tprhuiz bra;ag;gl;l jpdj;jpy; vjphpfs; jug;gpy; FWf;F tprhuiz
bra;ag;glhky; Fwf;F tprhuizia xj;jp itflf kD jhf;fy; bra;J
mjd;nghpy; FWf;F tprhuiz xj;jp itf;fg;gl;Ls;sikahy; mj;jifa
vjphpfspd; bray;ghl;;ow;fhf m.rh.1 rhl;rpaj;jpid Kw;wpYk;
epuhfhpf;f ,ayhJ vd ,e;ePjpkd;wk; fUJfpwJ. nkYk;
vjphpfspd;trjpf;fhft[k; brsfhpaj;jpw;fhft[k; m.rh.1d; FWf;f
tprhuizia xj;jp itf;f mDkjp nfhUk;gl;rk; mjdhy; Vw;gLk;
tpist[fSf;Fk; vjphpfns KGg; bghWg;ghthh;fs; vd; ,e;ePjpkd;wk;
fUJfpwJ. nkYk; vjphpfspd; mj;jifa bray;ghl;ow;F ahbjhU
bjhlh;g[k; rk;ge;jKk; my;yhj muR jug;g[ rhl;rpahd m.rh.1d;
Kjy; tprhuiz rhl;rpaj;jpid Kw;wpYk; g[we;js;s ,ayhJ
vd ,e;ePjpkd;wk; fUJfpwJ. nkYk; vjphpfs; jug;gpy;
Fwpg;gpLtJnghy rhl;rpaj;jpd; cz;ik jd;ikia FWf;F
tprhuizapd;:K:ynk btspf;bfhzu ,aYk; vd;gij ,e;ePjpkd;wk;
Vw;Wf;bfhs;fpwJ. Mdhy; vjphpfspd; tHf;F tprhuiz
Mjuhaj;jpw;fhf m.rh.1d; FWf;F tprhuizf;F fhy mtfhrk;
nfhug;gl;L mj;jifa fhyj;jpw;Fs; m.rh.1 ,we;Jtpl;l epiyapy; m.rh.1I
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vjphpfs; jug;gpy; FWf;F tprhuiz bra;ag;glhjjhy; m.rh.1d;
rhl;rpak; Kw;wpYk; ePf;fwt[ bra;ag;gl ntz;Lbkd vjphpfs;
jug;gpy; Fwpg;gpLtJ Vw;g[ilajy;y vd ,e;ePjpkd;wk; fUJfpwJ.”
So according to the learned Senior counsel, this
observation of the trial court runs contrary to the
record of proceedings. Even at the first instance, the
cross examination was deferred at the instance of this
appellant. Later proceedings have been undertaken by the
prosecution to add the 4th accused. So because of the same
only, there was a delay. So the trial court cannot find
fault with the appellant and record a finding against him
in this matter.
11.As narrated above, this observation runs quite
contrary to the record of proceedings. This, in the
considered view of this court, has caused serious
prejudice in the mind of the trial court against the
appellant herein. On this sole ground, this court is of
the considered view, as stated by the learned Senior
Counsel appearing for the petitioner, the matter must be
remitted back, of course not to the trial Judge,
Sankarankoil.
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12.The learned Additional Public Prosecutor would
submit that as observed by the trial court, consequence
must be borne by the appellant. But as mentioned earlier,
this observation is factually incorrect.
13.In the light of the above said discussion, this
court is of the considered view that the matter may be
remitted back to the trial court. Since only the
observation has been challenged and no further recording
of evidence is required, as submitted by both sides, for
fresh consideration, this matter can be remitted back to
the trial court. So the court, to which the matter may be
assigned by the Principal District and Sessions Judge,
Tirunelveli, may commence the proceedings from the stage
of 313 Cr.P.C. It is also directed that no further
evidence is ordered to be permitted to be let in by both
sides.
14.In the result, this criminal appeal is allowed
and the judgment of conviction and sentence passed by the
trial court are set aside and the matter is remitted
back to the Principal District and Sessions Judge,
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Tirunelveli, who can assign the matter for fresh disposal
to any one of the Sub Courts in Tirunelveli Town. The
court to which the case is assigned may permit the
parties to advance argument afresh, without being
influenced by any of the observations that has been made
either by the trial court or by this court in this order
and decide the same, on merits within a period of two
months thereafter. The original trial court is directed
to transmit the entire original records to the assignee
court immediately on receipt of the order from the
Principal District and Sessions Judge, Tirunelveli. The
appellant shall appear before the Principal District and
Sessions Judge, Tirunelveli, on 30/01/2023 and may
execute fresh surety bond if so required.
15.The appellant may be released from the prison
immediately, unless detention is required in connection
with any other case. The fine amount, if any, paid by
him, shall be refunded forthwith. Consequently, connected
Miscellaneous Petition is closed.
04/01/2023
Index:Yes/No
Internet:Yes/No
https://www.mhc.tn.gov.in/judis
er
To,
1.The Principal District and Sessions Judge,
Tirunelveli.
2.The Assistant Sessions Judge,
Sankarankoil.
3.The Inspector of Police,
Kuruvikulam Police Station,
Tirunelveli District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
G.ILANGOVAN, J
er
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.855 of 2022
04/01/2023
https://www.mhc.tn.gov.in/judis
