Madras High Court
State Represented By vs Issakiyappa Manickaraja @ on 24 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
2024:MHC:3622
Crl.A.(MD)No.314 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 03.10.2024
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.314 of 2021
State represented by
The Public Prosecutor,
High Court, Madras 104. ... Appellant
vs
1.Issakiyappa Manickaraja @
Manickaraja @ Raja
2.Murugan @ Sakkapzham
3.Amjathkumar
4.Murugan ...Respondents
PRAYER: Criminal Appeal filed under Section 378(1) of the Criminal
Procedure Code, to set aside the judgment of acquittal made in S.C.No.393
of 2013 dated 20.12.2019 on the file of the 4th Additional District and
Sessions Judge, Tirunelveli and convict the the respondents in accordance
with law.
1/53
https://www.mhc.tn.gov.in/judis
Crl.A.(MD)No.314 of 2021
For Appellant : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
For Respondents : Mr.R.John Sathyan, Senior Counsel
for Mr.R.Selvam (For R1) and
for Mr.C.Christoper (For R2 to R4)
*****
JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
The respondent/complainant/prosecution in S.C.No.393 of 2013
aggrieved by the judgment dated 20.12.2019 in S.C.No.393 of 2013 on the
file of the IV Additional District and Sessions Court at Tirunelveli by which
judgment, the said Court had acquitted the accused therein of all charges,
has filed the present Criminal Appeal under Section 378(1) of Cr.P.C.
2.It is the case of the prosecution that on 08.09.2012, while
celebrating Sudalai Madasamy Temple festival at Valliyoor Main Road in
Tirunelveli, a quarrel arose between the deceased, Ravi and A4, Murugan at
around 04.00 pm in the evening. It is contended that the deceased, Ravi had
assaulted A4. Owing to this, A4 harboured enmity against the deceased. It
is stated that A4 had taken the assistance of A1 to A3 to take revenge on
Ravi.
https://www.mhc.tn.gov.in/judis
3.It is further contended that on the same day, 08.09.2012, at around
09.30 pm, the de-facto complainant, Subash, PW-1 and the deceased were
consuming liquor in the Government TASMAC shop/bar near Valliyoor old
bus stand. It is further contended that at that time, A1, A2 and A3 entered
into the TASMAC shop/bar. A2 caught hold of the deceased, Ravi in his
chair. A1 stabbed the deceased on his neck. A3 stabbed the deceased
repeatedly on his stomach and chest. The deceased collapsed in that place.
PW-1 was threatened and chased out. While running out, he saw A4 who
also chased him away.
4.In this connection, PW-1 had given a complaint, Ex-P1, consequent
to which, FIR in Cr.No.566 of 2012 had been registered by the Valliyoor
Police Station at 11.30 in the night for offences punishable under Sections
294(b), 342, 506(ii) and 302 IPC against, Manickkaraj @ Raja (A1),
Murugan (A2), Amjath Kumar (A3). The name of A4 was not mentioned
in the complaint.
5.Subsequent to investigation, final report was filed before the
Judicial Magistrate Court at Valliyoor and was taken cognizance as
https://www.mhc.tn.gov.in/judis
P.R.C.No.17 of 2013. Since the offence under Section 302 IPC was triable
exclusively by a Court of Sessions, the case was committed to the Principal
Sessions Court at Tirunelveli. It was taken on file as S.C.No.393 of 2013
and made over to the IV Additional District and Sessions Judge at
Tirunelveli for trial.
6.Initially, on 18.11.2014, the following charges were framed:
Charge No.1 Against A1 to A4 under Section 302 r/w 34
IPC
Charge No.2 Against A1 (two counts) and A2 and A3
under Section 294(b) IPC
Charge No.3 Against A2 under Section 352 IPC
Charge No.4 Against A1 to A3 under Section 506(ii) IPC
7.Thereafter, on 01.06.2016, the following amended charges were
framed:
Charge No.1 Against A1 to A3 under Section 302 IPC
Charge No.2 Against A2 under Section 302 r/w 109 IPC
Charge No.3 Against A4 under Section 302 r/w 34 IPC
Charge No.4 Against A1 to A4 under Section 120B(1)
IPC
https://www.mhc.tn.gov.in/judis
8.The 1st charge which had been framed under Section 302 r/w 34 IPC
against A1 to A4 was altered to the 1st amended charge, Section 302 IPC
against A1 to A3. The 2nd, 3rd and 4 charges were retained. The 2nd, 3rd and
4th amended charges were added as the 5th, 6th and 7th charges.
9.The accused denied the charges and claimed to be tried. The
prosecution examined PW-1 to PW-18 witnesses and marked Ex-P1 to Ex-
P17 documents. The prosecution also produced MO-1 to MO-10 material
objects. The incriminating portions were put to the accused their confession
statements were then recorded under Section 313(1)(b) Cr.P.C.
10.On the side of the accused, one witness was examined as DW-1
and one document was marked as Ex-D1 series.
11.On conclusion of trial, by judgment dated 20.12.2019, the accused
were acquitted of all charges. It is under these circumstances that the
complainant/prosecution has filed the present Criminal Appeal.
12.To narrate the facts in a little more detail, it would be required to
https://www.mhc.tn.gov.in/judis
examine the nature of evidence adduced by the prosecution.
13.PW-1, Subash in his evidence stated that on 08.09.2012 in the
evening at 04.00 pm during manjal neerattu function at Sudalai Madasamy
Temple festival in Ambedkar Nagar, a quarrel arose between A4, Murugan
and the deceased, Ravi. The issue had been settled by the people present
there. It had been contended by PW-1 that A4 then threatened the deceased
that he would ensure that he was killed.
14.The witness further stated that at 09.30 pm on the same day, he
and the deceased, who incidentally happened to be his sister's son, had gone
over to the Government TASMAC shop to consume liquor. At that time,
A1, A2 and A3 came to the shop. A2 abused him in filthy language. A2
then caught hold of the deceased in his chair. A1 caught hold of the head of
the deceased and stabbed him with a knife on the neck. A3 also stabbed
him repeatedly on the stomach and chest. They then threatened PW-1 and
chased him away. He stated that when he came out, A4 was standing
outside and he also chased him away. He then informed the incident to his
sister.
https://www.mhc.tn.gov.in/judis
15.Thereafter, his sister and brother-in-law, Rengaraj, PW-4, came to
the scene of crime. They went to the TASMAC bar shop. The deceased was
lying in a pool of blood. He then prepared a complaint. During his
evidence, he identified the complaint lodged by him as Ex-P1. He also
identified MO-1 knife used by A1 and patta kathi, MO-2 used by A3.
16.PW-2 Thavasimuthu, who was the Manager of the TASMAC shop
did not support of the case of the prosecution.
17.PW-3, Kannan, who was the supplier for the said TASMAC
shop/bar, in his evidence stated that the deceased and PW-1 had come to the
shop in the night at 09.30 pm to consume liquor. At that time, A1 to A3 had
entered into the shop. A2 caught hold the deceased in his chair by holding
the hands behind. A1 then caught hold of the head of the deceased and
stabbed the deceased on the neck. A3 also stabbed the deceased repeatedly
on his stomach and chest. Thereafter, the said accused, including A4 chased
away PW-1. The witness also identified the weapons when shown during
trial.
https://www.mhc.tn.gov.in/judis
18.These are the material witnesses for the prosecution. PW-1 and
PW-3 had stated practically the same facts. The witnesses were also cross
examined on the same day.
19.During cross examination, PW-1 stated that consequent to the
information given to his sister, who was the mother of the deceased, she
came to the TASMAC shop. In his evidence, he stated that A1 to A3 were
outsiders. He withstood cross examination.
20.He was again recalled on 31.10.2019. It must be kept in mind that
he was examined in chief on 17.03.2015. When he was recalled, he stated
that on 08.09.2012 in the night at 11.00 pm, he went to the Police Station
and he was shown a few papers. He stated that he went again to the Police
Station on 09.09.2012 in the afternoon around 01.00 pm and signed in two
sheets of paper in which the respondent Police had written something. He
identified Ex-P1 as the said document.
https://www.mhc.tn.gov.in/judis
21.PW-3 had also been cross examined on the same day, when chief
examination was taken. He was also recalled on 02.04.2016 after more than
year and during further cross examination on behalf of the accused, he
stated that the dead body of the deceased was found next to the Kamarajar
statue in the road. The body was then shifted by an ambulance run by a
Muslim.
22.The main contention of the learned Additional Public Prosecutor
in seeking reversal of the judgment of the trial Court is that PW-1 had
deposed in chief on 17.03.2015 and was cross examined on the same day.
He had narrated the facts as he had earlier stated in his statement recorded
under Section 161 Cr.P.C. But, however, he was recalled on 31.10.2019
nearly more than 4½ years after his initial examination. At that time, he
stated that he signed without knowledge of contents in papers identified as
Ex-P1. It is contended by the learned Additional Public Prosecutor that on
the basis of this single sentence, the trial Court had disbelieved the earlier
evidence of PW-1 and the case of the prosecution and on that among other
grounds had taken a decision to acquit the accused.
https://www.mhc.tn.gov.in/judis
23.The learned Additional Public Prosecutor then pointed out the
evidence of PW-3, who was examined in chief on 17.03.2015 and cross
examined on the very same day. This witness was also recalled on
02.04.2016 one year after he had tendered evidence. He was further cross
examined on behalf of the accused. In that cross examination, he stated that
a dead body was found in the corner of the road near Kamarajar statue and
stated that at 10.30 in the night, the body was taken by an ambulance run by
a Muslim. This witness was declared hostile. The learned Additional Public
Prosecutor stated that this stray statement by PW-3 had been taken into
consideration by the learned trial Judge overlooking the earlier evidence.
24.The learned Senior Counsel appearing on behalf of the accused
however pointed out that the prosecution had failed to prove the complaint
in manner known to law. The learned Senior Counsel also stated that both
PW-1 and PW-3 had taken a conscious decision to speak against the
prosecution and stated that the trial Court had correctly analysed their
evidence.
https://www.mhc.tn.gov.in/judis
25.In (2008) 10 SCC 450, Ghurey Lal vs the State of Uttar Pradesh,
the Hon'ble Supreme Court had laid down the principles to overrule or
otherwise disturb a trial Court judgment of acquittal. In para 17, it had been
held as follows:
“70.In light of the above, the High Court and other
appellate courts should follow the well-settled principles
crystallised by number of judgments if it is going to overrule or
otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the
trial court's acquittal if it has “very substantial and compelling
reasons” for doing so.
A number of instances arise in which the appellate court would
have “very substantial and compelling reasons” to discard the
trial court's decision. “Very substantial and compelling reasons”
exist when:
(i) The trial court's conclusion with regard to the facts is palpably
wrong;
(ii) The trial court's decision was based on an erroneous view of
law;
(iii) The trial court's judgment is likely to result in “grave
miscarriage of justice”;
(iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and
unreasonable;
(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and
consideration to the findings of the trial court.
3. If two reasonable views can be reached—one that leads to
acquittal, the other to conviction—the High Courts/appellate
courts must rule in favour of the accused.”
https://www.mhc.tn.gov.in/judis
26.This Court will necessarily therefore have to re-apprise the
evidence to determine whether the judgment of the trial Court acquitting the
accused will have to be interfered with and set aside.
27.In this connection, a more detailed examination of the sequence of
events will necessarily have to be narrated.
28.PW-1, is the de-facto complainant. In his evidence, he stated that
on 08.09.2012 at around 04.00 pm during the manjal neerattu function in
Sudalai Madasamy Temple, a quarrel arose between the deceased Ravi and
A4, Murugan. Ravi is said to have assaulted Murugan. This statement had
not been deposed by the witness, but is found in the charge. On the same
day in the night at 09.30 pm, PW-1 and the deceased who incidentally
happened to be his sister's son, went over to the Government TASMAC
shop near Valliyoor bus stand for consuming liquor. At that time, A1 to A3
entered into the shop.
https://www.mhc.tn.gov.in/judis
29.According to PW-1, A2 held the hands of the deceased with the
chair. A1 stabbed him on the neck. A3 stabbed him repeatedly on the
stomach and chest. The deceased collapsed. It is in the evidence of PW-1
that he immediately informed this to his sister/mother of the deceased. He
then lodged a complaint at 11.30 pm before the Valliyoor Police Station on
the basis of which, FIR in Cr.No.566 of 2012 had been registered on
08.09.2012 at around 11.30 pm. This FIR had been received by the learned
Judicial Magistrate-III, Tirunelveli, on 09.09.2012 at 06.30 am. It had been
received with a delay of minimum of 7 hours.
30.The FIR was registered by PW-12, Sundara Rajan, Sub Inspector
of Police. In his evidence, he stated that after registering the FIR, he had
forwarded the same to the Judicial Magistrate, Valliyoor at 01.00 am
through Police Constable, Ramesh (PW-11). He further stated that the
distance between the scene of crime and the Police Station was about 1 km.
In his re-examination, he stated that after the registration of the FIR, he had
gone over to the scene of crime and he came back and then despatched the
FIR to the Judicial Magistrate Court.
https://www.mhc.tn.gov.in/judis
31.PW-11 in his examination stated that he received the copy of the
FIR to be handed over to the Judicial Magistrate, Valliyoor at 01.00 am on
09.09.2012. He was then informed that the Judicial Magistrate was on
leave. He therefore had to serve the FIR to the Judicial Magistrate-III,
Tirunelveli. He stated that he was able to hand over the tapal only at 06.30
am on 09.09.2012 to the Judicial Magistrate-III, Tirunelveli.
32.The investigation was then taken over by PW-15, Muthuraj, who
was the in-charge Inspector of Police, Valliyoor Police Station. On
09.09.2012, early in the morning at 02.15 am, he went to the scene of
occurrence and in the presence of Dhananjeyan (PW-5) and Paulraj (not
examined), he prepared observation mahazar, Ex-P2 and rough sketch, Ex-
P10. He also seized a broken piece of orange colour plastic chair, MO-5,
cement pieces with blood stain, MO-3, and cement pieces without blood
stain, MO-4, a pair of slippers worn by the deceased, MO-6 and cash in the
possession of the deceased, MO-7 under seizure mahazar, Ex-P3. He then
conducted inquest over the dead body in the early morning between 05.00 to
07.00 am in the presence of panchayatdars. The inquest report was marked
as Ex-P11. He then forwarded the dead body for postmortem to the
https://www.mhc.tn.gov.in/judis
Tirunelveli Medical College and Hospital through Police Constable Sajee
(PW-13).
33.The postmortem was conducted by Dr.Sridharan, PW-14. In his
evidence, he stated that he commenced the postmortem at 10.20 am on
09.09.2012. He found the following injuries on the body:
“1)7x 5cm x cavity deep, wedge shaped stab injury,
obliquely present, towards left seen front of middle of neck. It lies,
11 cm below chin, 5cm above supra sternal notch, 13cm from top
of right shoulder, 14cm from top of left shoulder. Underlying soft
tissues (trachea, oesophagus & both side carotid arteries) found
cut. Tip of the weapon make a stab of size 1x1cm in the C6
Vertebrae
2)3x2cm x cavity deep, wedge shaped stab injury, obliquely
present, towards left seen in middle of abdomen in the epigastric
region. It lies 18 cm below supra sternal notch, 12 cm above
umbilicus, 14 cm from left nipple, 13cm from right nipple.
3)2x1cm x cavity deep, wedge shaped stab injury, obliquely
present, towards right seen in middle of abdomen, in the
epigastric region, 2 cm below injury number 2.
4)4x2cm x cavity deep, wedge shaped stab injury, obliquely
present, towards right seen in middle of abdomen, in the
epigastric region, 3cm below injury number 3.
5)4x2cm x cavity deep, wedge shaped stab injury, obliquely
present, towards left seen in right side of abdomen, 5cm away
from umbilicus, 20cm below right nipple.
6)4x2cm x cavity deep, wedge shaped stab injury, vertically
present, towards down seen in midline of lower abdomen, 3cm
below umbilicus, 10cm above pubic symphysis.
7)3 x 2cm x cavity deep, wedge shaped stab injury,
vertically present, towards down seen in right side of abdomen,
3cm away from the injury number 6.
8)3x2cm x cavity deep, wedge shaped stab injury, vertically
https://www.mhc.tn.gov.in/judis
present, towards down seen in left side abdomen, 4 cm away from
the injury number 6.”
34.The opinion for the cause of death was stated to be owing to the
injury in the neck. The fatal injury was injury No.1, which was a stab injury
in the middle of the neck. During his examination, PW-14 stated that it was
possible for the injuries to have been caused by MO-1 knife and MO-2
knife.
35.PW-15 in his evidence further stated that he then recorded the
statements of Subash (PW-1), Rengaraj (PW-4) (father of the deceased),
Abdul Khadar, Singadurai, Paramasivam (all not examined), Thavasi Muthu
(PW-2), Kannan (PW-3), Dhananjeyan (PW-5) and Paulraj (not examined).
Thereafter, at 03.00 pm on 09.09.2012, he arrested A1 and A2 in the
presence of Nagarajan (PW-10) and Subramanian (not examined). He then
recorded the confession statement of A1. On the basis of the confession
statement of A1, he recovered MO-1, knife and MO-2 knife under seizure
mahazar, Ex-P5. The admissible portions of the confession statement was
marked as Ex-P4. He then arrested A3 and A4 at 04.30 pm on the same day.
https://www.mhc.tn.gov.in/judis
Since the name of A4 was not mentioned in the FIR, he prepared a special
report including him as an accused and forwarded it to the Court. The
special report was marked as Ex-P12. He then forwarded the clothes of the
deceased under Form-95 to the Magistrate Court for sending the same for
forensic examination. They were produced as MO-8, MO-9 and MO-10.
He then recorded the statements of Nagarajan, PW-10, Subramanian (not
examined) and Sajee, PW-13.
36.PW-15 further stated that PW-2, Thavasi Muthu had in his
statement stated that on 08.09.2012 at 09.30 pm, the deceased was stabbed
by A1 in the neck and by A3 in the stomach and chest and that A2 had
caught hold of the deceased in the chair and that they chased away PW-1.
PW-15 was recalled for cross examination. The cross examination was
focused on whether the bar was authorised or was running illegally. He
stated that no licence had been granted to run a bar in that TASMAC shop.
He also stated that in the rough sketch, he had not indicated the place where
the body was present. He stated that when he went to the scene of crime,
there were no empty tumblers or liquor bottles. It was therefore suggested
to him that the offence did not happen at that particular TASMAC shop or
https://www.mhc.tn.gov.in/judis
bar, which suggestion he denied.
37.PW-15 further stated that during the postmortem, the material
objects and viscera had been sent for forensic examination. The reports had
been marked as Ex-P15, Ex-P16 and Ex-P17. Human blood was detected
with group “O” in MO-6, pair of slippers, MO-1 and MO-2, knives, MO-8
to MO-10, the clothes of the deceased. Since the Inspector of Police at
Valliyoor Police Station had re-joined duty, PW-15 then handed over the
case records to the said Inspector.
38.The Investigation was then taken over by PW-16, Aji Kumar,
Inspector of Police. He recorded the statements of Ramesh, PW-6, Kannan,
PW-7, Shankar (not examined), Chellappan, PW-8, Isakkiappan, PW-9. All
these witnesses were declared hostile during their evidence. He then
recorded the statements of Police Constables, Ramesh, PW-11 and Sajee,
PW-13. He then recorded the statement of Dr.Sridharan, who conducted the
postmortem, PW-14. He also recorded the statement of Sundara Rajan,
PW-12, Sub Inspector of Police, who had registered the FIR. He then
completed the investigation and filed charge sheet against the accused
https://www.mhc.tn.gov.in/judis
charging them with commission of offence punishable under Sections
294(b), 352, 342, 506(ii) and 302 r/w 34 IPC.
39.In his chief examination, he asserted that PW-6, Ramesh and
PW-7 Kannan had stated that the statements as recorded by him. They had
spoken about the alleged conspiracy among the accused. He also stated that
PW-8, Chellappan and PW-9, Isakkiappan, also stated to him the
statements, he had recorded. They had stated about the purchase of knives
by the accused persons.
40.The final report was taken taken cognizance as P.R.C.No.17 of
2013 by the Judicial Magistrate, Valliyoor. The learned Judicial Magistrate
complied with the provisions of Section 207 Cr.P.C. and furnished free
copies of all documents to the accused. Thereafter, since the offence under
Section 302 IPC was triable exclusively by a Court of Sessions, the case
was committed to the Principal District and Sessions Court at Tirunelveli. It
was taken on file as S.C.No.393 of 2013. It was then made over to the IV
Additional District and Sessions Judge at Tirunelveli for trial. The charges
were framed on two separate dates on 18.11.2014 and also on 01.06.2016.
https://www.mhc.tn.gov.in/judis
The 1st charge which had been framed on 18.11.2014 was altered. The 2nd 3rd
and 4th charges were retained. On 01.06.2016, the altered 1st charge was
framed and further, 5th, 6th and 7th charges were also framed. In effect, the
following charges were framed by the Court:
Charge No.1 Against A1 and A3 under
Section 302 r/w 34 IPC
Charge No.2 Against A1 (two counts),
A2 and A3 under Section
294(b) IPC
Charge No.3 Against A2 under Section
352 IPC
Charge No.4 Against A1 to A3 under
Section 506(ii) IPC
Charge No.5 Against A2 under Section
302 r/w 109 IPC
Charge No.6 Against A4 under Section
302 r/w 34
Charge No.7 Against A1 to A4 under
Section 120B(1) IPC
41.The accused denied the charges and claimed to be tried. The
prosecution was invited to prove the charges by adducing oral and
documentary evidence. The prosecution examined PW-1 to PW-18
witnesses and marked Ex-P1 to Ex-P17 documents. They also produced
MO-1 to MO-10 material objects.
https://www.mhc.tn.gov.in/judis
42.As already stated, PW-1, the eye witness and the de-facto
complainant had been examined and also cross examined on 07.03.2015. He
had spoken as his statement had been recorded under Section 161 Cr.P.C.,
by PW-15, Muthuraj, Investigating Officer. He was however further
recalled for further cross examination on behalf of the accused on
31.10.2019 nearly after 4 ½ years. At that time, he disowned the complaint
lodged by him, Ex-P1.
43.PW-2, who is the Manager of the TASMAC shop bar where the
incident said to have happened was declared hostile. However, PW-15 in
his examination asserted that the statement recorded by him reflected the
statement made by PW-2 to him.
44.PW-3, the supplier for the TASMAC shop was examined in chief
and cross examined on 17.03.2015. He spoken about the incident as he saw
it. He was recalled for further cross examination on behalf of the accused
on 02.04.2016 after one year. At that time, he gave an entirely new story.
He stated that the body of the deceased was found near Kamaraj Statue at
https://www.mhc.tn.gov.in/judis
Valliyoor and was taken by an ambulance owned by a Muslim who was
running a butcher shop.
45.PW-4 was the father of the deceased. PW-5 had had singed as a
witness in the observation mahazar, Ex-P2 and rough sketch, Ex-P10 and
also in the seizure mahazar, Ex-P3 for seizure of MO-3, MO-4, MO-5,
MO-6 and MO-7, the material objects that had been seized in the TASMAC
shop. During cross examination, a suggestion was put to him that the
material objects were not seized from the said TASMAC shop.
46.PW-6 to PW-9 who were witnesses for the arrest and recovery of
MO-1 and MO-2 were declared hostile. But it is a fact that the accused
were actually arrested. PW-11 to PW-13 were the Constables, who were
respectively assigned the job to hand over the FIR to the Magistrate and the
body for conducting postmortem. PW-12 was the Sub Inspector of Police,
who registered the FIR.
47.PW-14, Dr.Sreedharan, had conducted the postmortem. PW-15
and PW-16 were the Investigating Officers. PW-17 was the Court staff and
https://www.mhc.tn.gov.in/judis
PW-18 was the Scientific Analyst. He deposed that human blood in 'O'
group is detected in MO-1, MO-2, MO-6, MO-8, MO-9 and MO-10.
48.On completion of recording evidence on the side of the
prosecution, the incriminating portions were put to the accused and their
statements were recorded.
49.On the side of the accused, one witness M.Jakeer Hussain, as
DW-1 was examined and one document was marked as Ex-D1, which is
Form-91 series relating to the list of properties sent to the Magistrate Court.
These documents have been marked to point out that the properties had
been forwarded on 09.09.2012, but received belatedly.
50.A perusal of Ex-D1 shows that there are seals of the Judicial
Magistrate Court and also of the Principal District Munsif-Judicial
Magistrate, Valliyoor which were dated 10.09.2012, 12.09.2012,
18.09.2012 and 09.10.2012 It is evident that the properties had actually
been forwarded immediately on 09.09.2012 by PW-15, the Investigating
Officer. There cannot be any complaint of delay on the part of the
https://www.mhc.tn.gov.in/judis
prosecution in this regard.
51.DW-1 stated that he owns an ambulance used by the general
public and by the Police. He stated that on a date, which he did not
remember, at 10.00 pm, he received a call from the Valliyoor Police Station
to bring over the ambulance near the brandy shop near Kamarajar statue in
Valliyoor main road. He brought the ambulance. A dead body was there
outside the shop. The Police Constables placed the body in the ambulance.
The ambulance was driven to the Valliyoor Police Station at the time around
10.30 pm. Thereafter, he dropped the body at Palayamkottai Government
Hospital. In his cross examination that he did not seek or have any
documents to show that he actually took the body in his ambulance. He also
stated that he did know whether the body was actually sent on 09.09.2012 at
07.00 am through Constable Sajee to Tirunelveli Government Medical
College and Hospital. He denied that he was giving false evidence to protect
the accused, who are his friends.
52.In this connection, Ex-P8 would be relevant. It was the passport
given to PW-13, Police Constable, Sajee to take the body of the deceased,
https://www.mhc.tn.gov.in/judis
Ravi for postmortem and to hand over the body after the postmortem to the
relatives. This had been signed by PW-15, Investigating Officer on
09.09.2012. During his cross examination, PW-13 was never put a
suggestion that he had not transported the body and that rather PW-1, had
taken the body to Palayamkottai Hospital in the early morning at 03.00 am.
53.The learned Trial Judge in the course of his judgment while
examining the evidence of PW-1 in Paragraph Nos. 11 to 17, had extracted
the entire evidence and the cross examination and also the cross
examination conducted on 31.10.2019 and had concluded that owing to the
cross examination conducted on 31.10.2019 nearly 4½ years after having
tendered his initial evidence, the second cross examination on 31.10.2019
was prejudicial to the prosecution and that his evidence must be rejected in
entirety.
54.The learned trial Judge while examining the evidence of PW-3 had
again examined the evidence in paragraph Nos. 19-21, and stated that no
document had been produced to show that he was a supplier to the
TASMAC shop. It was also observed that he had further stated that the
https://www.mhc.tn.gov.in/judis
Police had arrived at the place only after two hours and they came only after
the presence of PW-4, the father of the deceased. The learned trial Judge
had again placed reliance on the evidence tendered after being recalled on
02.04.2016 and stated that his evidence in entirety was prejudicial to the
prosecution.
55.The learned trial Judge in para No.16 had examined the evidence
of PW-1, who stated that there were blood stains in the ground and observed
that the same had not been noted in the rough sketch. It was also observed
that the placement of the dead body was not noted in the rough sketch, Ex-
P10. Therefore, the learned trial Judge had returned a finding against the
prosecution.
56.The learned Trial Judge in paragraph No.17 of the judgment, had
pointed out the evidence of PW-1 during his further cross examination on
31.10.2019, wherein, he had stated that the Police had asked him to sign in
blank papers and the next day, he was asked to sign in a paper, in which
there were writings and had therefore, disowned Ex-P1, the complaint. The
learned Trial Judge therefore stated that the very genesis of the case as
https://www.mhc.tn.gov.in/judis
projected by the prosecution could not be believed. The learned Trial Judge
extracted the evidence of all the witnesses in entirety.
57.He also examined the evidence of PW-16 Ajikumar, the
Investigating Officer, who filed the final report and who stated that he did
not enquire with the Doctor who conducted the postmortem,
Dr.Shreedharan, PW-14, whether since the throat was cut, through that open
space, food which had been earlier eaten or the liquor which had been taken
earlier, would have flowed out of the body. The learned trial Judge had
therefore concluded that the prosecution had failed to establish that the
incident happened when the deceased was consuming liquor. We are not
able to understand this reasoning of the learned trial Judge. Broadly, on the
above mentioned grounds, the learned trial Judge had acquitted the accused
of all charges.
58.Assailing the said judgment, the prosecution has filed the present
Criminal Appeal.
https://www.mhc.tn.gov.in/judis
59.Heard Mr.A.Thiruvadi Kumar, learned Additional Public
Prosecutor appearing for the appellant and Mr.John Sathyan, learned
Sernior Counsel appearing for the respondents.
60.Mr.A.Thiruvadikumar, learned Additional Public Prosecutor
appearing for the prosecution took the Court through the facts of the case.
He pointed out that during the manjal neerattu function at Sundalai
Madasamy Temple festival in Valliyoor main road, a quarrel emanated
between A4 and the deceased at around 04.00 pm on 08.09.2012. It was
alleged that the deceased had assaulted A4. The learned Additional Public
Prosecutor stated that this was a cause for enmity harboured by A4 against
the deceased. Later, he had engaged A1 to A3 and it is alleged that they all
had decided to do away with the deceased.
61.The learned Additional Public Prosecutor then stated that on the
same day/08.09.2012 at around 09.30 pm, PW-1 Subash and the deceased,
Ravi went over to the TASMAC shop/bar near Valliyoor bus stand. At that
time, A1 to A3 came inside the bar. It is alleged that A2 had held back the
deceased in the chair and A1 stabbed the deceased on the neck. A3 is said
https://www.mhc.tn.gov.in/judis
to have stabbed the deceased repeatedly in his stomach and chest. The
deceased collapsed at that place. PW-1 was chased away out of the
TASMAC bar.
62.The learned Additional Public Prosecutor further stated that later,
PW-1 had given a complaint before the Valliyoor Police Station at 11.30 in
the night. He further pointed out that during evidence, PW-1 had spoken
about the incident when he was examined on 17.03.2015. He was also cross
examined on the same day. Later, after 4½ years, he had been recalled and
at that time, he disowned the complaint given by him, Ex-P1. The learned
Additional Public Prosecutor stated that this stray piece of evidence had
been relied on by the learned Trial Judge to give that as one of the reasons
to acquit the accused.
63.The learned Additional Public Prosecutor stated that PW-2, who is
the Manager of the Bar had turned hostile.
64.But, PW-3, the supplier of the bar had again deposed about the
incident very clearly. However, he was discarded hostile, only because no
https://www.mhc.tn.gov.in/judis
document had been produced to show that he was a supplier to the Bar.
Even PW-3 had been recalled after more than one year and during his cross
examination, when recalled, he had stated that a body was found near
Kamarajar statue in Valliyoor in the night at 10.30 pm, and an ambulance
owned by a Muslim had come and taken the body. The learned Additional
Public Prosecutor pointed out that this was an entirely new story put up by
the witness and alleged that the witness was won over by the accused.
65.The learned Additional Public Prosecutor then pointed out the
evidence of DW-1, Jaheer Hussain, who claimed that he was called by the
Police to carry a dead body further front of the TASMAC Bar near
Valliyoor bus stand and had taken to Palayamkottai Government Hospital.
In his evidence, he however did not give the date. He also did not produce
any document to show that he had actually transported the dead body.
66.The learned Additional Public Prosecutor further pointed out that
when PW-5, who was the witness for the seizure of MO-3, blood stained
cement pieces, MO-4 cement pieces without blood stain, MO-5 a broken
piece of plastic chair, MO-6, a pair of slippers, MO-7, all from the scene of
https://www.mhc.tn.gov.in/judis
crime and cash from the person of the dead body was cross examined, no
question was put about the situs of the crime or the place where the dead
body was present. This seizure of the material objects was immediate after
the investigation commenced. PW-5 had also signed as a witness to the
observation mahazar, Ex-P2 and also to the rough sketch prepared. The
learned learned Additional Public Prosecutor therefore stated that the
evidence of DW-1 will have to be rejected by this Court as false.
67.The learned Additional Public Prosecutor pointed out that the
learned trial Judge had placed reliance on extraneous materials and had
omitted to consider the evidence of PW-1, PW-3 and PW-5, who were
present at the scene of crime at the time of occurrence or immediately
thereafter. The learned Additional Public Prosecutor also stated that even
Ex-D1 series reflected that the material objects which had been seized had
been forwarded on 09.12.2012 itself. It could have been received by the
Court a day or two later, but it had been forwarded by PW-15 immediately.
The learned Additional Public Prosecutor therefore stated that the reasons
given by the learned trial Judge are superficial and are actually perverse and
therefore, urged that this Court should interfere with the acquittal of the
https://www.mhc.tn.gov.in/judis
accused and not set aside the judgment of the learned Trial Judge.
68.Mr.R.John Sathyan, learned Senior Counsel appearing for the
accused however disputed the contentions of the learned Additional Public
Prosecutor. The learned Senior Counsel first pointed out that in Ex-P10, the
rough sketch, which had been prepared by PW-15 immediately on arrival at
the TASMAC bar, the position where the body was found, had not been
given. This fact had also been admitted by PW-1 during his cross
examination. The learned Senior Counsel also pointed out that PW-15 had
not spoken about the presence of tumblers and liquor bottles at the scene of
crime. He pointed out that the body was actually found outside the
TASMAC bar as stated by PW-3, when he had been recalled for cross
examination. This had been further reiterated by DW-1. The learned Senior
Counsel therefore contended that the incident had never happened inside the
bar. He further pointed out the admission by PW-15 that there was no
licence to run a bar and therefore, contended that no bar at all in the
TASMAC shop.
https://www.mhc.tn.gov.in/judis
69.The learned Senior Counsel stated that the fact that PW-1 had
disowned the complaint, Ex-P1, when recalled for cross examination is very
significant and brushed aside the allegation that the witness had turned
hostile, when recalled after 4 ½ years. The learned Senior Counsel stated
that evidence was tendered under oath before the Court and therefore, much
credence should be given to the same.
70.He further pointed out the evidence of PW-2 who is the Manager
of the TASMAC shop/bar who witnessed and had direct knowledge about
the incident.
71.He questioned the genuinenity of the statements of PW-3, since no
proof was produced that he actually a supplier to the TASMAC shop/bar.
The learned Senior Counsel further pointed out that the witnesses who were
present during arrest and recovery, had been declared hostile and therefore,
asserted that the arrest and the recovery of MO-1 and MO-2 have not been
proved in manner known to law.
https://www.mhc.tn.gov.in/judis
72.The learned Senior Counsel further pointed out that if the evidence
of PW-1 is omitted, then the only conclusion the Court could arrive at is of
acquittal. He pointed out that the trial Court had carefully analysed the
evidence in extension.
73.The learned Senior Counsel then relied on the judgment of the
Hon'ble Supreme Court reported in (2022) 8 SCC 440 (Jafarudheen and
others vs State of Kerala), wherein, the Hon'ble Supreme Court had held as
follows:
“Recovery under Section 27 of the Evidence Act
37.Section 27 of the Evidence Act is an exception to
Sections 24 to 26. Admissibility under Section 27 is relatable to
the information pertaining to a fact discovered. This provision
merely facilitates proof of a fact discovered in consequence of
information received from a person in custody, accused of an
offence. Thus, it incorporates the theory of “confirmation by
subsequent facts” facilitating a link to the chain of events. It is for
the prosecution to prove that the information received from the
accused is relatable to the fact discovered. The object is to utilise
it for the purpose of recovery as it ultimately touches upon the
issue pertaining to the discovery of a new fact through the
information furnished by the accused. Therefore, Section 27 is an
exception to Sections 24 to 26 meant for a specific purpose and
thus be construed as a proviso.
38.The onus is on the prosecution to prove the fact
discovered from the information obtained from the accused. This
is also for the reason that the information has been obtained while
the accused is still in the custody of the police. Having understood
the aforesaid object behind the provision, any recovery under
https://www.mhc.tn.gov.in/judis
Section 27 will have to satisfy the court's conscience. One cannot
lose sight of the fact that the prosecution may at times take
advantage of the custody of the accused, by other means. The
court will have to be conscious of the witness's credibility and the
other evidence produced when dealing with a recovery under
Section 27 of the Evidence Act.”
74.The learned Senior Counsel further pointed out that though it is
alleged that the incident had taken place at 09.30 pm, in the evidence of
PW-1, he had stated that he made a telephone call only around 10.00 pm.
He then pointed out that the FIR was also handed over to the Magistrate
only at 06.30 am and contended that there was no explanation for the delay.
Pointing out all these aspects, the learned Senior Counsel urged that the
judgment of the trial Court had been passed only after considering all the
surrounding factors. He asserted that the trial Court had correctly acquitted
the accused and therefore, urged that the Criminal Appeal should be
dismissed.
75.We have carefully considered the arguments advanced and
perused the material records.
https://www.mhc.tn.gov.in/judis
76.It is the case of the prosecution that during the Temple festival on
08.09.2012 of Sudalai Madasamy Temple at Valliyoor main road in
Tirunelveli District at around 04.00 pm, a quarrel emanated between A4 and
the deceased. It is stated that the deceased had assaulted A4. It is further
contended that A4 therefore harboured enmity against the deceased. He had
spoken to A1 to A3 also.
77.In this connection, the prosecution had examined PW-6, Ramesh,
PW-7, Kannan, PW-8, Chellappan. and PW-9, Esakkiappan. However, all
the four witnesses were declared hostile.
78.It is the further case of the prosecution that on the same
date/08.09.2012 at around 09.30 pm, PW-1 Subash and the deceased, Ravi
who was actually the sister's son of PW-1, had gone over to the Government
TASMAC shop near Valliyoor bus stand to consume liquor. It is in the
evidence of PW-1 that when they were sitting in the bar, A1 to A3 entered
and A2 caught hold of the hands of the deceased and held him tightly in the
chair. A1 then stabbed the deceased on the neck. A3 stabbed the deceased
repeatedly on the stomach and chest. It is contended that the deceased
https://www.mhc.tn.gov.in/judis
collapsed immediately. A1, A2 and A3 then chased PW-1 outside. When he
ran out of the bar, he saw A4 outside the bar. A4 also chased him away.
79.A perusal of the records shows that PW-1 had spoken about this
incident in very clear terms during his chief examination recorded on
17.03.2015. He was cross examined on the same day. He was however
recalled for further cross examination on 31.10.2019. This was done
pursuant to the direction issued by a learned Single Judge of this Court in
Crl.O.P.(MD)No.11404 of 2017 by an order, dated 12.09.2019. That order
came to be passed by the learned Single Judge, since on behalf of the
accused, Cr.M.P.No.574 of 2017 had been filed before the trial Court
seeking to recall PW-1 for further cross examination. The reason given for
further cross examination was that when the prosecution examined PW-17
and PW-18, several new facts had been elicited during the cross
examination and therefore, PW-1 is required to be recalled for cross
examination. The learned Single Judge had allowed the said petition.
80.PW-1 had been recalled for further cross examination on
31.10.2019. During his cross examination, the evidence of PW-17 or PW-18
https://www.mhc.tn.gov.in/judis
was never referred at all. Rather, voluntarily he stated that on 08.09.2012 at
around 11.00 pm, when he went over to the Police Station, the Police were
enquiring some persons and the Police told him that those who had
committed the offence had accepted to the same and therefore, they want his
signature in the papers in which they writing something already. He further
stated that on 09.09.2012 in the afternoon at 01.00 pm, he again went over
to the Police Station. At that time, two pages were shown to him and he had
affixed his signature. He identified that particular two pages as Ex-P1. He
further stated that those whom the Police enquired were in the Police
Station and he had also seen the weapons used for the offence.
81.It is very relevant to point out that the purpose for recalling PW-1
was to put before him the materials which, according to the accused had
been elicited from PW-17 and PW-18. In this connection, it must be further
pointed out that PW-17 was the Head Clerk of Judicial Magistrate Court,
Valliyoor and PW-18 was the Assistant Director of Regional Forensic
Science Laboratory at Tirunelveli.
https://www.mhc.tn.gov.in/judis
82.PW-17 during his chief examination had only marked the
documents under which the material objects had been forwarded for
chemical examination through the letter of the Court. Thereafter, he
identified the material objects when received back by the Court. He had not
spoken a single letter about Ex-P1, complaint.
83.PW-18 had also spoken only about the tests conducted relating to
the material objects and about the results which had been marked as Ex-
P13, Ex-P14, Ex-P15, Ex-P16 and Ex-P17. He never even uttered a single
letter about Ex-P1 complaint.
84.It is thus seen that PW-1 had been re-called by surreptitiously,
without informing the correct reasons to the Court.
85.Insofar as the further cross examination of PW-3 is concerned, he
stated about a body lying at 10.00 to 11.00 pm near Kamarajar statue and
that an ambulance driven by a Muslim had taken the dead body. In this
connection, the accused had also examined DW-1. But however, very
crucially, PW-5, Dhananjeyan, who was witness when with PW-15, the
https://www.mhc.tn.gov.in/judis
Investigating Officer, when he had visited the scene of crime and had signed
as a witness in Ex-P2, observation mahazar and Ex-P10, rough sketch, was
examined. No question was put that the body was not in the TASMAC
shop/bar. However, MO-5, the broken piece of chair and MO-6, pair of
slippers were seized from inside the TASMAC shop/bar. Very importantly,
MO-7, which are four notes of Rs.100/- and two notes of Rs.10/- were
recovered from the body and the clothes of the deceased found inside the
TASMAC shop/bar.
86.In the observation mahaar, Ex-P2, it had been very clearly stated
that the scene of crime is a Shop No.10603, TASMAC shop and the bar is at
the back side of the shop. In that place, the deceased body was lying with
the head down and the legs pointing the western direction. It was also
mentioned that on the left hand, there was a tattoo mark, Ajith. There was
also a dragon tattoo mark in the left forearm. The injuries were also very
clearly noted down. It was also noted that in the shirt pocket, there was Rs.
420/- and the denominations were also given.
https://www.mhc.tn.gov.in/judis
87.Ex-P3 is the seizure report for the broken piece of chair, pair of
slippers and the cash from the shirt pocket of the deceased. It is thus very
evidently clear that the deceased was murdered only inside the TASMAC
shop.
88.The nature of the death had been very clearly stated in the
postmortem report, Ex-P15. The injuries had been stated earlier and they are
repeated again:
“1)7x 5cm x cavity deep, wedge shaped stab injury, obliquely
present, towards left seen front of middle of neck. It lies, 11 cm
below chin, 5cm above supra sternal notch, 13cm from top of
right shoulder, 14cm from top of left shoulder. Underlying soft
tissues (trachea, oesophagus & both side carotid arteries) found
cut. Tip of the weapon make a stab of size 1x1cm in the C6
Vertebrae
2)3x2cm x cavity deep, wedge shaped stab injury, obliquely
present, towards left seen in middle of abdomen in the epigastric
region. It lies 18 cm below supra sternal notch, 12 cm above
umbilicus, 14 cm from left nipple, 13cm from right nipple.
3)2x1cm x cavity deep, wedge shaped stab injury, obliquely
present, towards right seen in middle of abdomen, in the
epigastric region, 2 cm below injury number 2.
4)4x2cm x cavity deep, wedge shaped stab injury, obliquely
present, towards right seen in middle of abdomen, in the
epigastric region, 3cm below injury number 3.
5)4x2cm x cavity deep, wedge shaped stab injury, obliquely
present, towards left seen in right side of abdomen, 5cm away
from umbilicus, 20cm below right nipple.
6)4x2cm x cavity deep, wedge shaped stab injury, vertically
present, towards down seen in midline of lower abdomen, 3cm
below umbilicus, 10cm above pubic symphysis.
https://www.mhc.tn.gov.in/judis
7)3 x 2cm x cavity deep, wedge shaped stab injury,
vertically present, towards down seen in right side of abdomen,
3cm away from the injury number 6.
8)3x2cm x cavity deep, wedge shaped stab injury, vertically
present, towards down seen in left side abdomen, 4 cm away from
the injury number 6.”
89.The finding is that the deceased would have died owing to stab
injury in the neck and that Injury No.1 is fatal.
90.Thus, the death was a homicide.
91.PW-1 and PW-3 have very clearly stated that inside the TASMAC
shop/bar where the body was found, A2 had held the hands of the deceased
and pinned it to the chair and A1 had stabbed him on the neck and A3 had
stabbed him repeatedly on the stomach and chest. They then chased PW-1
outside and when he ran out, A4 was standing who also chased PW-1 away.
A4 was standing outside to ensure that no third person entered into the
TASMAC bar. A4 had the main cause for enmity against the deceased.
There is consistent evidence available that there was a quarrel between him
and the deceased at 04.00 pm on the same day during the village Temple
festival.
https://www.mhc.tn.gov.in/judis
92.It is clear that A1 to A4 had common intention to commit the
murder of the deceased.
93.None of the exceptions to Section 300 IPC are attracted in the
circumstances stated. There was preparation; there was knowledge; and
there was intention. A1 would have known that a deep stab injury on the
neck would kill any person. The fact that the aim was at the neck and the
injury was also on the neck clearly establishes that the intention was to
commit murder. The fact that A4 was standing outside is not relevant. He
was charged with offence under Section 302 r/w 34 IPC. Section 34 IPC is
as follows:
“Section 34 IPC.- Acts done by several persons in furtherance of
common intention.—
When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him
alone.”
94.A1, A2 and A3 had acted in furtherance of common intention of
A1 inside the TASMAC shop/bar was. A1 to A3 had intention to do away
with the deceased. It is one transaction with a common intention. The acts
https://www.mhc.tn.gov.in/judis
of A1, A2, A3 and A4 cannot be separated from each other. They each had
a separate role to play. A4 was standing outside. A2 held the hands of the
deceased. A1 stabbed him on the neck. A3 stabbed repeatedly on the
stomach and chest. The stabs on the chest, stomach and neck were possible
because the deceased was sitting on the chair, pinned to the chair.
Therefore, the natural angle in which any person with a knife would stab
would be downwards to the neck and to the chest and stomach. They are
also vital organs. The medical opinion had clearly stated that injury No.1 is
fatal. If A1 had missed, A3 would ensure that the deceased did not survive
by stabbing him on the chest and stomach repeatedly. A4 had ensured that
there was no third party interference. He had the primary intention to
murder the deceased. A2 had ensured that the deceased did not run away.
95.The judgment under appeal is palpably perverse.
96.In view of all these reasons, we hold that the learned trial Judge
had unfortunately overlooked vital aspects, particularly, the fact that PW-1
had been recalled after 4½ years and that the evidence of PW-3 after being
recalled after one year cannot be believed or trusted because, questions were
https://www.mhc.tn.gov.in/judis
not put on that line to PW-5, Dhananjeyan. Similarly, the evidence of
DW-1 will have to be rejected, as even the date has not been given in that
particular evidence.
97.We therefore hold that this is a case where we have to set aside the
order of acquittal and hold that the accused must be convicted for the
charges alleged.
98.The following are the charges:
Charge No.1 Against A1 and A3 under Section 302
r/w 34 IPC
Charge No.2 Against A1 (two counts), A2 and A3
under Section 294(b) IPC
Charge No.3 Against A2 under Section 352 IPC
Charge No.4 Against A1 to A3 under Section 506(ii)
IPC
Charge No.5 Against A2 under Section 302 r/w 109
IPC
Charge No.6 Against A4 under Section 302 r/w 34
Charge No.7 Against A1 to A4 under Section 120B(1)
IPC
99.From the evidence available, it is clear that A1 had stabbed the
deceased on the neck and A3 had repeatedly stabbed the deceased on the
https://www.mhc.tn.gov.in/judis
stomach and chest. Injury No.1 is on the neck. Injury Nos.2, 3 and 4 are on
the middle of the abdomen; Injury Nos.5 and 7 are on the right side of the
abdomen; Injury No.6 is on the lower abdomen and Injury No.8 is on the
left side abdomen. All these injuries have been caused with knowledge and
with intention to cause death. Since that intention pervaded the act, there
was also knowledge that the stab injuries would cause death. All these
injuries were caused only by A1 and A3. Therefore, A1 and A3 are found
guilty for offence punishable under Section 302 IPC and convicted for the
offence punishable under Section 302 IPC.
100.So far as the charge under Section 294(b) IPC is concerned, even
though PW-1 had stated that he had been threatened, he had immediately
run away from the place and therefore, A1, A2 and A3 are acquitted of the
offence punishable under Section 294(b) IPC.
101.So far as the offence under Section 352 IPC is concerned, it is
seen that A2 had held the hands of the deceased and pinned him to the chair,
but that was done to abet A1 and A3 in the commission of their offence.
Therefore, A2 is acquitted of this particular charge.
https://www.mhc.tn.gov.in/judis
102.So far as the offence punishable under Section 506(ii) IPC is
concerned, once again even though there is evidence of threat held out,
PW-1 had ran away from the place. We would acquit the accused of this
particular charge.
103.So far as the offence punishable under Section 302 r/w 109 IPC
is concerned, A2 had abetted A1 and A3 in the commission of offence
punishable under Section 302 IPC by holding the hands of the deceased and
pinning him to the chair. We hold that the charge is made out and therefore,
A2 is found guilty and convicted for offence punishable under Section 302
r/w 109 IPC.
104.The next charge is under Section 302 r/w 34 IPC as against A4
who was standing outside the shop. PW-1 had very clearly stated in his
evidence that he saw A4 standing outside, who had also chased him out. A4
had the common intention to ensure the death of the deceased, since he had
an altercation with the deceased earlier in the evening at 04.00 pm. The
deceased had assaulted him. Therefore, we hold that A4 though not present
inside the TASMAC shop/bar, is equally liable for the act as if the offence
https://www.mhc.tn.gov.in/judis
of Section 302 IPC had been done by him also. A4 is therefore, found guilty
and is convicted for offence punishable under Section 302 r/w 34 IPC.
105.So far as the charge under Section 120B(1) IPC is concerned,
there is no evidence available in this regard. The witnesses had turned
hostile and therefore, we would acquit A1 to A4 of this charge.
106.The judgment of the trial Court in S.C.No.393 of 2013 dated
20.12.2019 is set aside. The Criminal Appeal Stands allowed. The appellant
is directed to produce A1 to A4 before this Court to be heard on the
question of sentence. A1 to A4 to be produced on 28.10.2024.
107.List again on 28.10.2024.
[C.V.K., J.] & [R.P., J.]
24.10.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
https://www.mhc.tn.gov.in/judis
28.10.2024
108.A1, A2 and A4 produced. They were questioned on the sentence
to be imposed and on any mitigating circumstance. They all stated that they
were innocent of the offences charged and had not committed any offence.
They pleaded that minimum sentence should be imposed. Their statement
have been recorded. But, however it had been impressed that the only option
for offence punishable under Section 302 of IPC is either life imprisonment
or death sentence.
109.In the result:
i) A1 is convicted for the offence punishable under Section 302
of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.
5000/-(Rupees Five thousand only) in default to undergo three years
rigorous imprisonment.
ii) A2 is convicted for the offence punishable under Section
https://www.mhc.tn.gov.in/judis
302 r/w.109 of IPC and sentenced to undergo life imprisonment and to pay a
fine of Rs.5000/-(Rupees Five thousand only) in default to undergo three
years rigorous imprisonment.
iii) A4 is convicted for the offence punishable under Section
302 r/w.34 of IPC and sentenced to undergo life imprisonment and to pay a
fine of Rs.5000/-(Rupees Five thousand only) in default to undergo three
years rigorous imprisonment.
iv) The period of sentence already undergone shall be set off
under Section 428 of Cr.P.C
110. They have also been explained about their right to appeal before
the Hon'ble Supreme Court.
111. They have been remanded to custody to undergo the remaining
period of sentence.
https://www.mhc.tn.gov.in/judis
112. A3 had not been produced. It is stated that he had left the shores
of this Country. The trial Court, namely, IV Additional District and Sessions
Court, Tirunelveli is directed to issue Non Bailable Warrant to secure A3.
The appellant is directed to take steps to issue Look Out Circular to secure
A3 whenever he enters Immigration.
(C.V.K.,J.) (R.P.,J.)
28.10.2024
aav
https://www.mhc.tn.gov.in/judis
To
1.The 4th Additional District and Sessions Judge, Tirunelveli.
2.The Inspector of Police,
Valliyoor Police Station, Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN, J.
AND
R.POORNIMA. J.
cmr
Judgment made in
24.10.2024
https://www.mhc.tn.gov.in/judis
