Madras High Court
Veerakumar @ Veerappan vs The Inspector Of Police on 24 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
Crl.A.(MD)No.285 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 04.10.2024
PRONOUNCED ON : 24.10.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE Ms.JUSTICE R.POORNIMA
Crl.A(MD)No.285 of 2020
Veerakumar @ Veerappan
.. Appellant
Vs
The Inspector of Police,
Thevaram Police Station,
Theni District,
Cr.No.95 of 2016.
.. Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, against the Judgment and order, dated 09.07.2020 in
S.C.No.117/2016, on the file of the Additional District and Sessions
Judge, (Fast Track), Theni.
For Appellant : Mr.V.Muthuvelan
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
1/27
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Crl.A.(MD)No.285 of 2020
JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
The accused in SC No. 117 of 2016 on the file of the
Additional District and Sessions Court, (Fast Track Court), Theni, who
suffered a Judgment of conviction, dated 09.07.2020 for the offence
punishable under Section 302 IPC and sentenced to undergo life
imprisonment with fine of Rs. 1000/- in default, to undergo one year
simple imprisonment, has filed the present criminal appeal.
2.It is the case of the prosecution that the appellant herein
Veerakumar alias Veerappan and the deceased Maniraj were friends.
Taking advantage of that friendship, it had been contended that Maniraj
used to come over to the house of the appellant. The appellant suspected
that Maniraj had developed intimacy with his wife Kavitha (P.W.29).
There were quarrels between the appellant and his wife Kavitha. She left
the marital house and went to her mother's house at Tirupur. This caused
enmity between the appellant and the deceased.
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3.It is stated that on 17.03.2016 at 5.30 p.m., when the
deceased was sitting near the bank of Nallukulam in the link road
between Keezhachinthalaicheri and T.Sindalaichery at Uthamapalayam
Taluk in Theni district, the appellant threw Chilli powder mixed with
sand on the face of the deceased and attacked him with an aruval causing
injuries on the left eye, nose, left cheek, right forehead, left neck, right
hand fingers, backside of the neck and right forearm, owing to which,
Maniraj collapsed at that place itself and died.
4.It is claimed by the prosecution that the occurrence was
witnessed by P.W.1, Kanagaraj, father of the deceased, P.W.2,
Mahendran, brother of the deceased and P.W.4, Vanaraj, who happened
to drive a Jeep in that road at that time and P.W.5, Manikandan (declared
hostile).
5.It is also the case of the prosecution that the occurrence
was also witnessed by P.W.8, Muthulakshmi, P.W.9, Murugeshwari and
P.W.10, Jaya.
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6.A complaint in this regard was given by P.W.1, which was
marked as Ex.P1. On the basis of Ex.P.1 complaint, FIR Ex.P.9 was
registered at 8.00p.m., in Thevaram police station for the offence
punishable under Section 302 IPC. The name of accused was given in the
FIR.
7.After investigation, final report was filed before the
District Munsif-cum-Judicial Magistrate Court, Bodinayakanoor and
taken cognizance as P.R.C. No. 10 of 2016. Since the offence under
Section 302 IPC is triable exclusively by Court of Sessions, it was
committed to the Principal District and Sessions Court, Theni and
subsequently made over to the Additional District and Sessions Court,
(Fast Track Court), Theni and taken on file as SC No. 117 of 2016. The
only charge framed against the accused was under Section 302 IPC. The
accused denied the charges and claimed to be tried.
8.To prove the charges, the prosecution has examined the
witnesses P.W.1 to P.W.35 and marked documents Ex.P.1 to Ex.P.17.
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They also produced material objects M.O.1 to M.O.10. The accused did
not examine any witnesses or produce any document. By Judgment,
dated 09.07.2020, the learned Additional District and Sessions Judge,
(Fast Track Court), Theni convicted the accused for the offence
punishable under Section 302 IPC and sentenced him to undergo life
imprisonment and fine of Rs. 1000/- and in default, to undergo one year
simple imprisonment. This Criminal Appeal has been filed challenging
the said conviction and sentence.
9.The facts in detail are that the accused and the deceased
Veerakumar alias Veerappan and the deceased Maniraj were friends. The
accused suspected that Maniraj took advantage of that friendship and
developed a relationship with his wife Kavitha, who had been examined
as P.W.29. Owing to this hostility, it is alleged that the accused had
indiscriminately cut the deceased on 17.03.2016 at 5.30 p.m., when the
deceased was sitting on the bank of Nallukulam in the link road between
Keezhachinthalaicheri and T.Sindalaichery at Uthamapalayam Taluk.
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10.It is the case of the prosecution that this was witnessed by
P.W.1 Kanagaraj, father of the deceased. He lodged Ex.P.1, complaint
before the respondent police station.
11.Based on the said complaint, FIR in Crime No. 95 of
2016 was registered on 17.03.2016 at 8.00p.m., by P.W.33 Radhika, who
was the Sub Inspector of Police in the respondent Police Station. The
FIR was received by the Court only at 4.35a.m., on 18.03.2016. In her
evidence, P.W.33 stated that she had despatched the FIR through express
tapal, through the Police Constable, Vetri Vendhan, P.W.23. She
identified the FIR as Ex.P.9. She also admitted in her cross examination
that she had not filled up the column No. 15, to give the time and date on
which, the FIR was despatched to the Court.
12.P.W.23, Vetri Vendhan, in his evidence stated that since
the jurisdictional Magistrate was on leave, he had handed the FIR to the
Judicial Magistrate, Andipatti.
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13.The investigation was then taken over by P.W.35,
Immanuvel Rajkumar, Inspector of Police at Thevaram Police Station. He
stated that he went to the scene of crime on 9.15 p.m., on that day. But
there was total darkness and there were no houses and it was a forest area.
He then went over to the Uttamapalayam Government Hospital and
recorded the statements of P.W.1, Kanagaraj, P.W.2, Mahendran and
P.W.3, Indira. He then recorded the statements of Iyavu (not examined),
Mani (P.W.11), Veerakumar (P.W.7) and Nagendran (P.W.12). He then
again on 18.03.2016 at 6.00a.m., went to the scene of crime and in the
presence of Muthuraj (not examined) and Ramanathan (P.W.17) prepared
Observation Mahazar Ex.P.4 and Rough Sketch Ex.P.12. He further
seized the blood stained sand M.O.5 and sand without blood M.O.6,
under seizure mahazar, Ex.P.5. He also collected the blood stained sand,
M.O.2 and sand without blood, M.O.3 and chilli powder, M.O.5, which
were available in the scene of crime under seizure mahazar, Ex.P.6.
14.P.W.35, then conducted an inquest over the dead body of
deceased at Uttamapalayam Government Hospital in the presence of
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Panchayatars. The inquest report was marked as Ex.P.13. He then
recorded the statements of Rajesh Khanna (P.W.14), Shiva Kumar (P.W.
15), Shivaraman (P.W.13), Muthuraj (not examined), Ubari Antony (P.W.
22), Maria Singam (P.W.19) and Ramanathan (P.W.17). He then arrested
the accused at 3.00p.m., in the presence of witnesses Andavar (P.W.34)
and Nanda Kumar (P.W.16). He then recorded the confession statement
of the accused. The admissible portion of the same is marked as Ex.P.14.
He then recovered M.O.1 blood stained aruval and M.Os.7 to 10, the
clothes worn by the accused. He forwarded the material objects to the
Court.
15.P.W.35, then recorded the statements of Vanaraj (P.W.4),
Manikandan (P.W.5), Rajaram (P.W.6), Muthulakshmi (P.W.8),
Murugeswari (P.W.9), Jaya (P.W.10), Vetrivendhan (P.W.23), Rajendran
(P.W.24), Alagarswami (P.W.28) and Radhika (P.W.33). He also
examined the statement of Dr. Azharuddin P.W.32 and Dr. Thyagarajan,
P.W.31, who conducted the Post-Mortem.
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16.Dr. Azharuddin, P.W.32, had issued the Accident Register Ex.P.9.
Dr. Thyagarajan, P.W.31, had conducted Post-Mortem and issued the Post-Mortem
Certificate Ex.P.7. The following injuries were noted in the Post-Mortem Certificate.
“Appearances found at the postmortem:
The body of a male lying on its back; Rigor mortis present
in all four limps; Blood stain present all over the body;
1. Lacerated injury 7cm x 2-3/4cm between right ear
and right eyebrow, 5mm deep with exposure of bone.
2. Lacerated injury in lower orbit- left side with
awision of left lower eyelid and exposure of bone
underlying.
3. Nose- Mid nose cut through injury with division of
upper, lower flaps, deep to maxilla; other laceration,
between lower nose and upper up deep to maxilla;
4. Laceration below left ear with exposed left mandible
of 7x3cm;
5. Neck; Left side root of neck, a lacerated of 7cm x
4cm with exposure of clavicle, great vessels, &
underlying muscles
6. Just above injury a laceration 3cm long, stun deep.
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7. Just behind injury 5, laceration 5cm x1.5cm
8. Laceration 7x4x2cm with exposed underlying muscle
and bone in left forearm mid posteriori.
9. Laceration 4x2x1cm lower posterior left forearm
10. Laceration 3x2x1 left forearm mid 1/3 anterior
11. Left hand and wrist laceration 11cm long- exposure
of muscle & vessels.
12. Almost avulsed right index finger at mid-line region
13. Laceration left debouch 4x2x1cm
14. Just below posterior 4x12cmx4cm deep with
exposure of underlying fractured forearm bone.
15. Avulsed at index ring finger at proximal phalanx
Internal Injuries
1. Fracture of underlying skill bone corresponding to
injury No.1(External), Extending from right
temporal region 6cm towards mind line
2. Tear of the meningeal covering underlying the above
injury internal organs.
Spleen, kidney, lungs, liver pale, stomach contains
partially digested for”
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The cause of death was stated to be injuries to the vital organs.
17.Thereafter, P.W.35 recorded the statements of Kavitha
(P.W.29), Jayarani (P.W.25) and Malliga (P.W.26). He also recorded the
statement of Dr. Mani (not examined). He then obtained Forensic
Laboratory Reports, Ex.P.16 and Ex.P.17 and completed his investigation
and filed final report, charging the accused for the commission of offence
under Section 302 IPC.
18.As stated, after trial, the appellant had been convicted
and sentenced for the offence punishable under Section 302 IPC to
undergo life imprisonment. The present appeal had been filed against that
Judgment.
19.Heard arguments advanced by Mr.V.Muthuvelan, learned
counsel for the appellant and Mr. S. Ravi, learned Additional Public
Prosecutor for the respondents.
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20.The learned counsel for the appellant took the Court
through the facts of the case and stated that the presence of P.W.1 and
P.W.2 in the scene of crime is highly doubtful and their conduct was not
natural and the evidences were unbelievable. The nature of injuries did
not correlate with the medical report. He also stated that P.W.2 did not
state the correct facts. With respect to the evidence of P.W.4, he pointed
out that the medical evidence with respect to the injuries differed from
the evidence of P.W.4. He further stated that even the weapon used for
the occurrence was not properly identified. He further pointed out that
P.W.8, P.W.9 and P.W.10 did not state that they saw the accused
assaulting the deceased.
21.The learned counsel for the appellant further stated that
the arrest, confession and recovery had also not been proved by the
witnesses. With respect to the evidence of P.W.29, wife of the appellant,
the learned counsel for the appellant stated that she was living separately
and therefore, she had a motive against the accused. Placing all these
facts, the learned counsel for the appellant stated that the appeal must be
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allowed and the conviction must be set aside.
22.Mr. S.Ravi, learned Additional Public Prosecutor,
however, disputed the contentions of the learned counsel for the
appellant. The learned Additional Public Prosecutor pointed out that the
prosecution had proved the case by establishing the motive namely the
fact that the accused suspected the deceased was having relationship with
his own wife P.W.29. Further, the occurrence was also witnessed by
P.W.1, P.W.2 and P.W.4. The learned Additional Public Prosecutor
stated that the motive having been established, the chain of events had
also been proved by the prosecution. He further pointed out that owing to
the confession made by the accused, the prosecution was able to recover
the weapon, M.O.1 used for the offence. Pointing out all these facts, the
learned Additional Public Prosecutor argued that the appeal should be
dismissed.
23.We have carefully considered the arguments advanced by
both sides and perused the materials.
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24.This is extremely an unfortunate case, where two friends
had become enemies owing to suspicion by one of them against the other.
The two friends were the accused and the deceased.
25.It is the case of the prosecution that the accused
suspected the deceased had developed a relationship with his wife P.W.
29. P.W.29 in her evidence only stated that there were minor issues
between her and her husband. She also stated that she had told the
deceased not to come home. She stated that in view of the constant
harassment and accusations, she went to her mother's house at Tirupur.
During cross examination, she stated that no complaint was given relating
to this harassments by her against the accused.
26.It is seen that the entire incident happened out of
suspicion, which the accused had harboured against the deceased. It is
contended that the accused had violently attacked the deceased on
17.03.2016 in the evening at 5.30p.m., when the deceased was sitting on
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the bank of Nallukulam in the link road between Keezhachinthalaicheri
and T.Sindalaichery at Uthamapalayam Taluk.
27.The prosecution had examined P.W.1 father of the
deceased, who claimed to be an eye witness. In his evidence, he stated
that he and P.W.2 were going to T.Sindalaichery to purchase some
materials. On the way they saw the deceased sitting next to the pond.
P.W.1 stated that he told the deceased to go home. Thereafter, P.W.1 and
P.W.2 proceeded further. He further stated that they heard the deceased
shouting out. When they turned back, P.W.1 claimed that he saw the
accused attacking the deceased. He further stated that thereafter, he had
taken the deceased in an Ambulance to Uthamapalayam Government
Hospital. In his cross-examination, he admitted that there were many
cases registered against the deceased in Thevaram and Kumbai police
station. In his cross examination, he further admitted that before he
reached the place, his son had already been attacked and lying down
dead. He admitted that he went to the scene of occurrence, after receiving
information from P.W.2, who was informed by P.W.4 Vanaraj. It is clear
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from the narration of the evidence, this witness is not reliable as he had
stated contradictory statements in his chief examination and cross
examination. He was then again recalled for further cross examination on
the side of the prosecution. However, there is no indication that the Court
had declared him as hostile.
28.It is to be noted that in the complaint, P.W.1 had not
stated that there was illicit relationship between the deceased and the
wife of accused.
29.The prosecution then examined P.W.2, Manoharan. In his
evidence, he stated that he went along with P.W.1 to purchase some
materials from T.Sindalaichery. They saw the deceased in Nallukulam
Kanmai. They asked him to go back home. When they proceeded, they
heard the cry of the deceased. When they turned back, P.W.2 stated that
he saw the accused cutting the deceased. However, in his cross
examination, he admitted that it was only after the assault, he turned
around and saw the deceased. Again, the evidence of this witness also
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does not also inspire confidence. He was also cross examined on behalf
of the prosecution and being recalled, though there is no record to show
that he had been declared hostile.
30. P.W.4 Vanaraj was a chance witness. He was driving a
Jeep carrying P.W.8, P.W.9, and P.W.10 back from the Cardamom farm.
He stated that when he went to Nallukulam, he saw two persons standing
there. He then went there and stopped the Jeep near them. He stated that
the accused was assaulting the deceased. He stated that he immediately
informed P.W.2. He stated in his cross examination that, at that place
there were 30 to 40 persons. He did not inform the Police about the
incident. Two days later the police enquired him. He stated that he gave
information to P.W.2 and after that P.W.2 went to the scene of crime.
31.It is thus seen that this evidence contradicts the evidences
of PO.W.1 and P.W.2 that they were eyewitnesses. PW2 went to the
scene of occurrence after P.W.4 informed him. P.W.1 went to the scene
of occurrence after P.W.2 informed him. Both were not present at the
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time of the occurrence. They are both unreliable witnesses. They are
also interested witnesses.
32.While carefully analysing the evidence of P.W.1, P.W.2
and P.W.4, the sequence of events do not clearly emanate. Though in the
chief examination, they stated that they saw the accused cutting the
deceased, however, in the cross examination, they had admitted that they
saw the incident, after it had occurred. The evidence of P.W.4 is
unreliable in view of the evidence of the passengers in his Jeept, P.W.8,
P.W.9 and P.W.10.
33.The passengers in the Jeep of P.W.4 namely, P.W.8, P.W.
9 and P.W.10 did not support the case of prosecution. Their evidence was
extremely vague. They did not state about the incident. They did not state
about the identity of the persons. In fact, they only saw the dead body. In
their chief examination P.W.8, P.W.9 and P.W.10 stated that they had
only seen the dead body, but not the occurrence. Therefore, there is no
corroboration for the evidence of P.W.1, P.W.2 and P.W.4.
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34.In this regard, it is relevant to refer to the decision of
Nand Lal and others vs. State of Chattisgarh reported in 2023 LiveLaw [SC]
186, in which, the Hon'ble Supreme Court had placed reliance on the Judgment
reported in Vadivelu Thevar vs. The State of Madras reported in [1957] SCR
981 and held as follows:
“32.Undisputedly, the present case rests on the
evidence of interested witnesses. No doubt that two of
them are injured witnesses. This Court, in the case of
Vadivelu Thevar v. The State of Madras, has observed
thus:
“11.......Hence, in our opinion, it is a sound and well-
established Rule of law that the court is concerned with
the quality and not with the quantity of the evidence
necessary for proving or disproving a fact. Generally
speaking, oral testimony in this context may be classified
into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12.In the first category of proof, the court should have no
difficulty in coming to its conclusion either way it may
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convict or may acquit on the testimony of a single
witness, if it is found to be above reproach or suspicion
of interestedness, incompetence or subornation. In the
second category, the court equally has no difficulty in
coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to
look for corroboration in material particulars by reliable
testimony, direct or circumstantial......”
33.It could thus be seen that in the category of "wholly
reliable" witness, there is no difficulty for the
prosecution to press for conviction on the basis of the
testimony of such a witness. In case of "wholly
unreliable" witness, again, there is no difficulty,
inasmuch as no conviction could be made on the basis of
oral testimony provided by a "wholly unreliable" witness.
The real difficulty comes in case of the third category of
evidence which is partly reliable and partly unreliable.
In such cases, the court is required to be circumspect and
separate the chaff from the grain, and seek further
corroboration from reliable testimony, direct or
circumstantial.”
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35.The evidence of P.W.1, P.W.2 and P.W.4 can only be
categorised wholly unreliable.
36.Quite apart from that fact, the other witness whom the
prosecution relied on mainly, P.W.12, Nagendiran, was declared hostile.
There were no other direct witnesses to the incident.
37.One factor, which has to be considered is that the FIR
had been registered at 8.00p.m., on 17.03.2016. This had been handed
over only at 4.35a.m., on 18.03.2016 to the Judicial Magistrate. The
explanation given was that the regular Magistrate was on leave and that
the FIR served on the in-charge Magistrate. Even then, there is no
evidence about the time taken to reach the Magistrate and hand over the
papers on the Magistrate.
38.The Apex Court in Rajeevan and another vs. State of
Kerala reported in [2003] 3 SCC 355, the Apex Court in paragraph 15 held as
follows:
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“15.This Court in Marudanal Augusti v. State of Kerala
[(1980) 4 SCC 425 : 1980 SCC (Cri) 985] while deciding a case
which involves a question of delayed dispatch of the FIR to the
Magistrate, cautioned that such delay would throw serious doubt
on the prosecution case, whereas in Arjun Marik v. State of
Bihar [1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] it was
reminded by this Court that: (SCC p. 382, para 24).
“[T]he forwarding of the occurrence report is
indispensable and absolute and it has to be
forwarded with earliest dispatch which intention is
implicit with the use of the word ‘forthwith’
occurring in Section 157 CrPC, which means
promptly and without any undue delay. The purpose
and object is very obvious which is spelt out from the
combined reading of Sections 157 and 159 CrPC. It
has the dual purpose, firstly to avoid the possibility
of improvement in the prosecution story and
introduction of any distorted version by
deliberations and consultation and secondly to
enable the Magistrate concerned to have a watch
on the progress of the investigation.” (Emphasis
supplied)
39.The prosecution had examined P.W.31, Dr. Thyagarajan
who conducted the Post-Mortem. P.W.1 stated that when he saw the body
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there were injuries on the eyes, nose, neck and fingers. In the Post-
Mortem Report, Ex.P.7, the list of injuries had been differently noted.
There is no proper correlation between the injuries as stated by P.W.1
and as noted in Ex.P.7.
40.The witnesses to the recovery of the material object had
also not supported the case of the prosecution. They were declared
hostile.
41.The only evidence which would remain would be the
evidence of P.W.1, P.W.2 and P.W.4. As stated, they had contradicted
their statements given in chief examination, when cross examined. The
prosecution should have produced further evidence to corroborate the
evidence of P.W.1, P.W.2 and P.W.4. The prosecution also relied on the
evidence of P.W.8, P.W.9 and P.W.10. Unfortunately, they did not state
anything about the occurrence or the identity of the accused.
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42.The entire case of the prosecution is based on a very
shaky foundation. It is relevant to refer the decision of Apex Court
reported in (2016) 10 SCC 519 (Jose @ Pappachan vs the Sub Inspector
of Police), wherein, the Hon'ble Supreme Court had held as follows:
“56. It is a trite proposition of law, that
suspicion however grave, it cannot take the place of
proof and that the prosecution in order to succeed on
a criminal charge cannot afford to lodge its case in
the realm of “may be true” but has to essentially
elevate it to the grade of “must be true”. In a
criminal prosecution, the court has a duty to ensure
that mere conjectures or suspicion do not take the
place of legal proof and in a situation where a
reasonable doubt is entertained in the backdrop of the
evidence available, to prevent miscarriage of justice,
benefit of doubt is to be extended to the accused.
Such a doubt essentially has to be reasonable and not
imaginary, fanciful, intangible or non-existent but as
entertainable by an impartial, prudent and analytical
mind, judged on the touchstone of reason and
common sense. It is also a primary postulation in
criminal jurisprudence that if two views are possible
on the evidence available, one pointing to the guilt of
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the accused and the other to his innocence, the one
favourable to the accused ought to be
adopted.” (Emphasis supplied)
43.In the instant case, it is thus seen that the conviction
imposed by the learned trial Judge had been based on mere suspicions
rather than on proof. The suspicion naturally fell on the accused since,
according to the prosecution, he had enmity with the deceased, whom he
suspected was having a relationship with his wife. But the prosecution
has the burden to prove the case beyond all reasonable doubt. It must be
established through credible oral and documentary evidence. The
prosecution has failed in that regard. We therefore, hold that the benefit
of doubt should be extended to the appellant herein.
44.In the result, Judgment and the conviction and sentence in
S.C.No. 117 of 2016, dated 09.07.2020, passed by the I Additional
District and Sessions Judge, (Fast Track Court), Theni, is set aside. We
acquit the appellant from the charge under Section 302 IPC.
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45.The Criminal Appeal is allowed. The bail bond executed
by the appellant if any, shall stands cancelled. The fine amount paid, if
any, shall be refunded to the appellant.
[C.V.K., J.] & [R.P., J.]
24.10.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
PNM
To
1.The Additional District and Sessions Judge, (Fast Track), Theni
2.The Superintendent, Central Prison, Madurai.
3.The Inspector of Police,
Thevaram Police Station,
Theni District, Cr.No.95 of 2016.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
5.The Section Officer,
ER/VR Section, Madurai Bench of Madras High Court, Madurai.
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C.V.KARTHIKEYAN, J.
AND
R.POORNIMA. J.
PNM
Pre-delivery Judgment made in
24.10.2024
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