Pathukasu Shankar @ Udayasankar vs State Represented By
2023 Latest Caselaw 6722 Mad

                                                                       Crl.A(MD)No.221 of 2016


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             Date : 21.06.2023


                                                  CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                        Crl.A.(MD)No.221 of 2016

                     Pathukasu Shankar @ Udayasankar
                                                   ... Appellant/Accused No.1

                                                        vs.

                     State represented by,
                     The Inspector of Police,
                     Thanjavur Medical College Police Station,
                     Thanjavur District.
                     (In Crime No.51 of 2015).          ... Respondent/Complainant


                     PRAYER : Criminal Appeal has been filed under Section 374(2) of
                     Cr.P.C., to allow this appeal and acquit the appellant from all the
                     charges by setting aside the impugned Judgment passed by the
                     learned I Additional District and Sessions Judge, (P.C.R), Thanjavur
                     in S.C.No.308 of 2015, dated 06.05.2016.


                                      For Appellant     : Mr.C.Vadivel @ Sekar
                                                              for Mr.J.Selvam

                                      For Respondent    : Mr.T.Senthil Kumar
                                                        Additional Public Prosecutor




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                                                                              Crl.A(MD)No.221 of 2016



                                                     JUDGMENT

This Criminal Appeal has been preferred as against the

Judgment and conviction made in S.C.No.308 of 2015, dated

06.05.2016, on the file of the learned I Additional District and

Sessions Judge, (P.C.R), Thanjavur.

2.The case of the prosecution is that P.W.1 and the

appellant/first accused are residing with their families as tenants on

the first floor of the same apartment belonging to one Rangaraj. The

apartment is situated at 3rd Street, AKL Colony, Upparigai, Mandaba

Road, Manojipatti. The deceased Selvakumar, who is the son of P.W.

1, used to tease the daughter of the first accused and used to tap

the doors of the house whenever she was alone in the home. In

view of the same, there was previous enmity between both families.

Accused No.2 is a close friend of Accused No.1. Both of them had a

common intention to murder the deceased. Accordingly, on

20.02.2015 at about 10.30 p.m., the appellant was standing in the

veranda in front of the house of P.W.8 situated on the ground floor

of the apartment and he shouted in filthy language. Hearing the

noise, the deceased came down to the ground floor and asked the

appellant as to why he is scolding unnecessarily. The appellant

scolded the deceased in filthy language and asked him as to why he

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is teasing her daughter and attacked him with a cricket stump and

hit his face on the wall and grill gate. P.W.1 and P.W.2 tried to catch

the appellant when the deceased tried to go away. At that time,

Accused No.2 hold the head of the deceased and hit the face on the

wall of a closed shop belonging to Rangaraj. Accused No.2 also

kicked and pushed the deceased and thereby both of the caused the

death of the deceased. Hence, the complaint.

3.Based on the said complaint, the respondent

registered the F.I.R in Crime No.51 of 2015 for the offence under

Section 302 of I.P.C. After completion of the investigation, the

respondent filed a final report against both the accused for the

offences under Sections 294(b), 302 r/w 34 of I.P.C and the same

has been taken cognizance by the trial Court in S.C.No.308 of 2015,

on the file of the learned I Additional District and Sessions Judge,

(P.C.R), Thanjavur.

4.On the side of the prosecution, they had examined

P.W.1 to P.W.20 and marked Exs.P.1 to P.13 and the prosecution has

also marked M.O.1 to M.O.6 and on the side of the accused, no one

was examined and no documents were marked.

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5.On perusal of both oral and documentary evidence,

the trial Court acquitted the second accused from all the charges

and acquitted the appellant for the offence under Section 294(b) of

I.P.C and convicted the appellant for the offence under Section

304(ii) of I.P.C and sentenced to undergo 10 years Rigorous

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

undergo six months Simple Imprisonment. Aggrieved by the same,

the present Criminal Appeal has been preferred by the

appellant/first accused.

6.The learned senior counsel appearing for the appellant

would submit that there are totally two accused, in which the trial

Court found the appellant alone guilty, that too, for the offence

under Section 304(ii) of I.P.C. Originally, the appellant was charged

for the offence under Section 302 of I.P.C r/w 34 of I.P.C against

two accused persons. Accused No.2 also similarly placed and same

overt act, even then, the trial Court acquitted Accused No.2 and the

appellant alone was convicted for the offence under Section 304(ii)

of I.P.C. There are a lot of contradictions on the part of the

prosecution witnesses viz., P.W.1 to P.W.4, who were said to have

witnessed the scene of the crime. Though the trial Court does not

believe the evidence of P.W.3 and P.W.4, since they could not be

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eyewitnesses to the occurrence, only on the basis of the voice of the

first accused convicted the appellant/first accused. P.W.1 and P.W.2

are none other than the parents of the deceased, who came to the

scene of the crime only after 15 minutes. Therefore, they did not

have seen the occurrence. They also deposed that they had chased

the accused persons after the crime. Therefore, these contradictions

are fatal to the case of the prosecution. There was a delay in the

lodgement of the complaint. According to P.W.1, the time of

occurrence is about 10.30 p.m on 20.02.2015. He preferred the

complaint only at 01.00 a.m on 21.02.2015. The delay was not

explained by the prosecution in preferring the complaint. That apart,

the body of the deceased was found in front of the shop. Whereas,

according to the prosecution, the occurrence had taken place in

front of the house of P.W.8. Further, the trial Court completely

ignored to consider the evidence of P.W.9, who was also an

eyewitness to the occurrence. He categorically deposed that he

found the body of the deceased in front of the closed shop. Only

after hearing the noise of P.W.1 and P.W.2, he rushed to the spot

and found the body of the deceased in front of the shop. Therefore,

the prosecution completely failed to prove the case beyond any

doubt. He further submitted that the material objects produced by

the prosecution are not at all accepted by the trial Court. If at all

the occurrence could have happened in front of the house of P.W.8,

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there was no sand. The Investigating Officer mechanically produced

blood-stained soil and plain soil. The recovery was also made after

so many days from the date of occurrence. Therefore, the benefit of

the doubt goes in favour of the accused and he is liable to be

acquitted.

7.Per contra, the learned Additional Public Prosecutor

appearing for the respondent would submit that in order to prove

the charges to home, the prosecution had examined P.W.1 to P.W.20

and marked Ex.P.1 to Ex.P.13 and also produced material objects

M.O.1 to M.O.6. P.W.1 and P.W.2 were eyewitnesses to the

occurrence and they categorically deposed that the appellant

attacked the deceased and due to which, he sustained grievous

injuries and he died on the spot. The prosecution also proved that

there was previous enmity between both families. The deceased

used to tease the daughter of the first accused and used to tap the

doors of the house when she was alone. Therefore, on 20.02.2015

at about 10.30 p.m., the appellant abused the deceased with filthy

language in front of the house of P.W.8. After hearing the noise, the

deceased came to the ground floor from the first floor and asked

why he was scolding unnecessarily and about whom he was

scolding, for which, the appellant abused him with filthy language

and also attacked the deceased with a cricket stump and hit his face

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on the wall and grill gate. Immediately, P.W.1 and P.W.2 came to the

scene of the crime and attempted to catch the accused. However,

they flew away from the scene of the occurrence. Therefore, they

categorically deposed and supported the case of the prosecution

and the trial Court rightly convicted the first accused. Though the

charge was framed under Section 302 r/w 34 of I.P.C, the trial Court

rightly convicted the appellant for the offence punishable under

Section 304(ii) of I.P.C, since the act of the appellant was on

sustained provocation and he had no intention either to cause the

death of the deceased or to cause such bodily injury likely to cause

death or to cause such bodily injury which sufficient to cause the

death of the deceased. Further, the accused has acted with

knowledge that his action would result in the death of the deceased

in all probability and hence, the action of the appellant does not fall

in any of the limbs of Section 300 of I.P.C. Hence, he was convicted

for the offence punishable under Section 304(ii) of I.P.C. In so far as

the second accused is concerned, no one had spoken about his

overt act and presence. Therefore, he was acquitted from the entire

charges. Hence, he prayed for the dismissal of the appeal.

8.Heard the learned counsel appearing on either side

and perused the materials available on record.

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9.There are totally two accused in which the appellant is

arraigned as first accused. Both the accused were originally charged

for the offence under Sections 294(b) and 302 r/w 34 of I.P.C. It is

seen that the daughter of the appellant herein was teased by the

deceased and he also used to tap the doors of the house whenever

she was alone in the house. The appellant and the deceased are

residing adjacent to their house in the first floor of the apartment.

According to P.W.1 and P.W.2, the occurrence had happened in the

ground floor of their apartment in front of the house of P.W.8. On

perusal of the deposition of P.W.1 revealed that he heard the noise

of the appellant and he was abusing the deceased. Therefore, the

deceased went to the ground floor and questioned the same. After

15 minutes, P.W.1 and P.W.2 went to the ground floor. At that

juncture, the appellant attacked the deceased head on the cricket

stump. The second accused caught hold of the deceased and hit his

head on the wall. When P.W.1 was attempting to prevent the

deceased, the appellant and the second accused also hit him on the

grill gate. Immediately, they flew away from the scene of the crime.

P.W.1 and P.W.2 also attempted to catch them. However, they

escaped from the scene of crime. P.W.1 and two others namely P.W.

3 and P.W.4 went to the Police Station and lodged the complaint.

Thereafter, the police personnel came to the scene of crime and

called 108 Ambulance and the deceased was taken to the

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Government Hospital, Tanjore. P.W.1 lodged a complaint which was

marked as Ex.P.1. The complaint was lodged at about 01.00 a.m.

Thus, it is clear that after visiting the scene of crime by the police

personnel and after sending the body of the deceased to the

Hospital, they registered the F.I.R. However, Ex.P.1/complaint was

written by P.W.7. Whereas P.W.1 did not even whisper about the

presence of P.W.7 in the scene of crime and also in the Police

Station.

10.On perusal of Ex.P.1 also revealed that it was not

written by P.W.1 and it was written by police personnel and signed

by P.W.1. In fact, P.W.7 deposed that on the date of occurrence, he

was on night duty. His duty time was 08.00 p.m to 06.00 a.m. He

was on duty. Therefore, the prosecution is not clear about the

lodgment of the complaint and the registration of F.I.R. It is seen

that Ex.P.1 was subsequently written by police personnel and

obtained a signature from P.W.1.

11.Further, it is also seen that P.W.1 and P.W.2 came to

the scene of crime only after hearing the noise. They also did not

even whisper about the presence of P.W.3 and P.W.4 at the scene of

crime. On perusal of the evidence of P.W.4 revealed that he received

a phone call from P.W.1 and thereafter, he went to the scene of

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crime. He had seen the appellant while he was attacking the

deceased by a cricket stump on the head of the deceased. Whereas,

he did not even whisper about the presence of Accused No.2.

Therefore, the evidence of P.W.3 and P.W.4 are not supported the

case of the prosecution and they are chance witnesses. Hence, the

trial Court rightly disbelieved the evidence of P.W.3 and P.W.4. The

other eyewitnesses, namely P.W.5, P.W.6, P.W.8 and P.W.10, who are

the residents of the same locality, did not support the case of the

prosecution and as such, they were treated as hostile witnesses.

The another independent witness was examined by the prosecution

as P.W.9. He deposed that no one had witnessed the occurrence

including P.W.1 and P.W.2. He was residing in a house opposite to

the house of the deceased. He further deposed that he heard the

hue and cry of P.W.2, after he return back from his work. In fact,

while he was returning to his house, he had seen the deceased who

was lying near a closed shop. He thought that always the deceased

was in a drunken mood and as such, on that day also under the

influence of alcohol, he was lying in front of the closed shop.

Therefore, he was under the impression that the deceased was in an

inebriation stage and lying down and went to his house. Only after

hearing the noise of P.W.2, he saw that the deceased was lying in

the blood pool. Whereas, the case of the prosecution is that the

scene of the crime is in front of the house of P.W.8.

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12.On perusal of the rough sketch, which was marked

as Ex.P.11, revealed that there is much distance between the house

of P.W.8 and the body of the deceased, which was lying in front of

the shop. Therefore, the scene of crime itself is not proved by the

prosecution. Further, in so far as the recovery is concerned, the

appellant was arrested on 22.02.2015 in the presence of P.W.12. On

his confession, M.O.1 to M.O.3 were recovered at about 11.30 a.m

from a bush in Karuvai Thoppu. It was not supported by P.W.12,

though M.O.1 to M.O.3 were recovered after two days, it was

produced before the Court only on 12.03.2015 under Form 95. In

fact, the said Form 95 was returned by the Court for four times for

the reason for the non-production of the material objects. Further,

the trial Court convicted the appellant on the assumption that P.W.1

and P.W.2 would have recognized the voice of the appellant and the

abusive utterances of the appellant. Even then, the trial Court

acquitted the appellant for the charge under Section 294(b) of I.P.C.

P.W.1 deposed that he had seen the occurrence when the appellant

was attacking the deceased. On the other hand, P.W.1 and P.W.2

came to the scene of crime only after 15 minutes and they heard

abusive language from the appellant against the deceased.

Therefore, P.W.1 and P.W.2 also could not have witnessed the

occurrence. The conviction based on the assumption that P.W.1 and

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P.W.2 could recognise the voice of the appellant is unsustainable. It

is also relevant to note that when the trial Court found the second

accused was not guilty, then the same benefit ought to have

extended to the appellant also since he is also standing on the same

footing as Accused No.2. Therefore, the conviction as against the

appellant under Section 304(ii) of I.P.C cannot be sustained and it is

liable to be set aside.

13.Accordingly, the order made in S.C.No.308 of 2015,

dated 06.05.2016, on the file of the learned I Additional District and

Sessions Judge, (P.C.R), Thanjavur, is set aside and the Criminal

Appeal is allowed. The appellant/Accused is acquitted. Bail bond if

any executed by the appellant/Accused shall stand cancelled and a

fine amount if paid is ordered to be refunded to the

appellant/Accused forthwith.

21.06.2023

NCC : Yes/No Index: Yes/No Internet: Yes ps

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.221 of 2016

To

1.The I Additional District and Sessions Court, (P.C.R), Thanjavur.

2.The Inspector of Police, Thanjavur Medical College Police Station, Thanjavur District.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.A(MD)No.221 of 2016

G.K.ILANTHIRAIYAN , J.

ps

Crl.A.(MD)No.221 of 2016

21.06.2023

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