Madras High Court
Murugesan vs The State Rep. By on 4 April, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.346 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.03.2025
Pronounced on : 04.04.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.346 of 2020
Murugesan ... Appellant/Accused No.1
Vs.
The State rep. by
The Inspector of Police,
Karivalam Vanthanallur Police Station,
Tirunelveli District.
(in Cr.No.52 of 2015) ...Respondent/Complainant
PRAYER : Criminal Appeal filed under Section 374 of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in S.C.No.40 of 2018 on the file of the IV Additional District and
Sessions Judge, Tirunelveli, dated 07.03.2020 and set aside the
conviction and sentence imposed against the appellant.
1/22
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Crl.A(MD)No.346 of 2020
For Appellant : Mr.R.Alagumani
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
This Criminal Appeal is filed against the conviction and
sentence passed against the appellant/accused in the judgment dated
07.03.2020 passed by the IV Additional District and Sessions Judge,
Tirunelveli, in S.C.No.40 of 2018 by convicting and sentencing the
appellant for the offence punishable under Sections 364, 302 and 201
IPC and sentenced to undergo imprisonment for life and to pay a sum of
Rs.5,000/- in default, to undergo two years simple imprisonment for the
offence under Section 302 IPC and sentenced to undergo 10 years
rigorous imprisonment and to pay a sum of Rs.5,000/- in default, to
undergo two years simple imprisonment for the offence under Section
364 IPC and sentenced to undergo three years rigorous imprisonment
and to pay a sum of Rs.5,000/- in default, to undergo one year simple
imprisonment for the offence under Section 201 IPC.
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2. The case of the prosecution in brief is as follows:
(a) The complainant is the father of the deceased
Muthukumar. The deceased Muthukumar had an affair with one
Vigneshwari at Lalgudi, Trichy, married her and came to his place, living
together. On the 18.02.2015 morning at 9'o clock, he went to Palakadu,
Kerala for work, but he did not go to the said job, his cell phone No.
99656 76640 was switched off from the morning 9'o clock. Hence, he
lodged a complaint to trace out his son.
(b) The complaint-Ex.P.1 was received on 19.02.2015 at
about 20.00 hours by P.W.23, Thiru.Subbaiah, Special Sub Inspector of
Police had registered FIR in Crime No.52/2015 for “Man Missing”. He
had sent the original FIR to the Judicial Magistrate Court and a copy to
the Inspector of Police for investigation.
(c) P.W.24 Thiru.Alagukannan, Inspector of Police received
the FIR at about 21.00 hours went to the place of occurrence and
prepared observation Mahazar Ex.P3 and rough sketch Ex.P16 in the
presence of witnesses Ramadoss, Ganesan.
(d) He examined the witnesses Ramakrishnan, Ramadoss,
Ganesan, Vanniyarajan, and Nagarathinam and recorded their statements.
(e) During investigation he came to know that the deceased
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Muthukumar had gone with Muthkumaran son of Ramar (A2) and
Murugesan son of Mariyadoss (A1) on a two-wheeler and he searched in
several places.
(f) On 20.02.2015 at about 5.00 a.m., he conducted search
near Veeranapuram, Nitchopanathi River Bridge. He found a person
hiding in a dark place who attempted to escape. Upon enquiry, he learnt
that the person is A2 Muthukumaran. He arrested the said
Muthukumaran in the presence of Yesudasan and Sakthivel at about 5'0
clock, recorded his confession statement Ex.P.17 and recovered two
wheeler bearing registration No.TN 76 3016 – M.O.1 at about 7.15 p.m.,
in the presence of same witness under recovery mahazar Ex.P.18.
(g) On 20.02.2015, the dead body of the deceased
Muthukumar was identified by A2 Muthukumaran at Sivakasi in the land
belonging to Appanayakanpatti Pushparaj on the northern side of
Vadakanmarainadu, in a Well on the Pirandai plant (Adamant Creeper).
On 20.02.2015 at about 8.45 a.m., the Investigation Officer prepared
observation mahazar Ex.P.6 and rough sketch Ex.P.19 in the presence of
witness Paramasivam and Murugan, recovered light sandal colour pant,
red and black colour towel – 2 numbers, visiting card – 6 numbers, VKC
pride black colour chappal-1 number, BSNL sim card (M.O.1 to M.O.4
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and M.O.6) under a recovery mahazar Ex.P.7.
(h) He conducted inquest on the dead body between 10.45
hours and 12.15 hours in the presence of witnesses and Panchayadhars
and prepared inquest report under Ex.P20.
(i) Thereafter, to find out the real reason for the death, he
sent the body with a requisition letter through Constable 31160, P.W.20
Thiru.Christopher Solomon, to the Government Hospital, for
postmortem.
(j) He altered the section of the law under Section 364 and
302 IPC and sent alteration report-Ex.P.21 to the Judicial Magistrate
Court.
(k) Thereafter, based on secret intimation, arrested A1
Murugesan near Pandhapuli Railway Gate on 22.02.2015 in the presence
of Village Administrative Officer Thiru.Selvasekaran (P.W.22) and his
Assistant Thiru. Muthuveerappan, recorded his confession statement
Ex.P.13 and recovered stone (M.O.5) under a recovery mahazar as
Ex.P.14.
(l) On 20.02.2015, he recovered the dresses worn by the
deceased Muthukumar namely, light blue colour VPH gold trousers
model trunk-M.O.7, banian-MO.8 coffee, blue, red, black colour full
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hand shirt -M.O.9, black colour waist rope (Carrigan rope) – M.O.10
under Form-91 and send the same to the Judicial Magistrate Court,
Sankarankovil.
(m) P.W.15 Dr.Mariraj, conducted a postmortem on the dead
body, and found the following injuries in Ex.P.9 postmortem report :
“The appearances found at the postmortem -
body lying on the back, well built, well
nourished, symmetrical with black hairs and iris,
without any rigour mortis in any limb. Face was
found to be smashed over the nose and chin area
with bleeding right upper 2 teeth, left upper 8 teeth,
right lower 3 teeth, left lower 7 teeth
injuries:
1. Nasal bone was fractured flat with bleeding
2. fracture of the right maxilla bone 4x3 cms with
fractured end depressed over the face,
3. mandible fracture on the right side about 3cms
from the centre
4. Teeth on the right side upper and lower fractured
5. 4cm breadth constriction mark over the upper
neck measuring 16cms without any knot marks.
Internal examinations Chest: no rib fracture. Lungs
and heart congested. No blood clots. Hyoid intact.
Abdomen: stomach was congested empty with small
and large bloated with gas. No hematoma. Liver,
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spleen, pancreas are all congested.
Skull: linear fracture of the nasal with depressed
edges, inside skull back with blood clot seen, Brain
was partially liquefied and not lacerations and
injuries.”
and in final opinion Ex.P.10, he has opined that the “The deceased would
appear to have died of shock and haemorrhage caused by multiple
injuries.”
(n) On 16.04.2015, he sent the material objects under Form
95 to the Magistrate Court.
(o) On 29.09.2015, he sent a requisition to the RTO, Tenkasi
to send about the details of the vehicle bearing Registration No.TN 76
3016, obtained information that the owner of the vehicle is one Syed
Ibrahim s/o.Mohaideen Pitchai, of Tenkasi Taluk.
(p) He also examined other witnesses and recorded their
statements. He received a judgment copy in C.C.No. 217 of 2006 dated
07.09.2009 under Ex.P.22.
(q) After completion of the investigation, on 13.10.2015 he
filed a final report against A1 and A2 for the offence punishable under
Sections 364, 328, 302 and 120(b) IPC.
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3. On receipt of the records, the Judicial Magistrate,
Sankarankovil took up the case in P.R.C.No.10 of 2016 and issued a
summons to the accused. After the appearance of the accused, copies of
the entire records were furnished to him free of cost under Section
207 Cr.P.C.
4. Since the offence was exclusively triable by the Sessions
Court, the learned Judicial Magistrate committed the case records to the
Principal District and Sessions Judge, Tirunelveli, under Section 209(A)
Cr.P.C. for further action.
5. The Principal District Judge, Tirunelveli received the case
records, numbered it as S.C.No.40 of 2018 and made it over to the IV
Additional District and Sessions Judge, Tirunelveli, for disposal
according to law.
6. After receipt of the case records, the learned IV Additional
District and Sessions Judge, Tirunelveli framed charges against the
accused under Sections 364, 302 and 201 IPC. The charges were read
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over and explained to the accused. The accused denied the charges and
claimed to be tried. Therefore, the case was posted for trial.
7. Out of the two accused, A2 died before framing of charges
and therefore, as against A2 case dismissed as abated on 17.04.2018.
8. On the side of the prosecution, P.W.1 to P.W.24 were
examined and Ex.P1 to Ex.P22 were marked. Material Objects M.O.1 to
M.O.11 were produced. On the side of the accused, no witness was
examined.
9. After a full trial, the trial Court convicted the
appellant /A1 for the offence punishable under Sections Sections 364,
302 and 201 IPC and sentenced him to undergo imprisonment for life and
to pay a sum of Rs.5,000/- in default, to undergo two years simple
imprisonment for the offence under Section 302 IPC and sentenced to
undergo 10 years rigorous imprisonment and to pay a sum of Rs.5,000/-
in default, to undergo two years simple imprisonment for the offence
under Section 364 IPC and sentenced to undergo three years rigorous
imprisonment and to pay a sum of Rs.5,000/- in default, to undergo one-
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year simple imprisonment for the offence under Section 201 IPC, against
which, the present Criminal Appeal has been filed on the following
among other grounds:-
(a) That the trial Court ought to have considered that the
evidence of the PW22 (V.A.O) clearly stated that the stone used for the
murder was recovered by the respondent police without blood stain in it
and it have been marked as M.0.5.
(b) That the learned trial judge ought to have considered that
the deceased was missing on 18.02.2015 at about 09.00 P.M, but the
defacto complainant gave the missing complaint on 19.02.2015 at about
08.00 P.M before the respondent police and FIR had been registered by
the respondent police on the same date, but the delay for giving
complaint was not explained by the defacto complainant.
(c) That the learned trial judge ought to have considered that
in the evidence of PW.24 Investigation Officer deposed that the mobile
phone of the deceased was switched off on 19.02.2015, the details
regarding all history were not verified and the deceased mobile phone
was not recovered.
(d) That the learned trial judge ought to have considered that
the evidence of P.W.1 and P.W.14 were not corroborating regarding the
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telephonic conversation.
(e) That the learned trial judge ought to have considered that
the owner of the land where the body of the deceased was recovered was
not examined.
(f) That the learned trial judge ought to have considered that
the evidence of the P.W.24 (Investigation Officer) clearly explained the
reason for the 2-month delay to produce the material object before the
Judicial Magistrate was not explained.
(g) That the learned trial judge ought to have considered that
in the evidence of P.W.24 (Investigation Officer) deposed that the sim
card had been recovered and marked as M.0.6, but respondent police
failed to verify the owner of the sim, phone number of the sim and call
records was not verified.
(h) That the learned trial judge ought to have considered that
the alleged occurrence happened at the TASMAC bar, a large number of
persons were present at the place of occurrence, but no one of the
independent witnesses was deposed before the trial court relating to the
involvement of the appellant.
(i) The prosecution failed to explain the reason for the delay
in registering the FIR and sent the FIR to the learned Judicial Magistrate
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and hence, the judgment of the trial Court is liable to be set aside.
9. The learned Additional Public Prosecutor appearing for
the State argued that previously one of the accused Muthukumaran, since
deceased (A2), attacked the deceased, a complaint was lodged by him,
FIR was registered and the said accused was convicted for the offence in
C.C.No.217 of 2016. Therefore, he had previous enmity against the
deceased. A1 Murugesan, appellant herein who is the friend of said
Muthukumaran (A2) conspired together and took him on a motorcycle
and made him consume alcohol. After he became unconscious, the
appellant strangulated him, thereafter took a stone and attacked his face,
inflicting serious injuries and committed the offence. The motive for the
crime was proved. Conspiracy between the accused were spoken by PW6
and PW7. The deceased was last seen in the company of the accused as
observed by PW4 and PW5. They clearly stated that the accused and
deceased consumed alcohol and had a fight, A1 attacked him with stone
while A2 restrained him. Further, PW1, complainant deposed that he was
informed by PW8 and PW9 that the deceased was last seen with the
accused. Arrest confusion and recovery were proved. This Criminal
Appeal has no merit and is liable to be dismissed.
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10. Heard the learned counsel on either side and perused the
materials available on record.
11. Now this court has to decide whether the judgement
rendered by the trial Court is proper or liable to be set aside ?
12. According to the prosecution, due to previous enmity A1
had with victim, kidnapped him with the help of A2, made the deceased
Muthukumar to consume alcohol. After he became unconscious, A2 held
the deceased and A1 Murugesan, who is the appellant herein strangulated
him and attacked him with a stone, inflicting injuries that led to his
death.
13.The learned counsel for the appellant argued that the trial
Court ought not to have considered the presence of PW4 and PW5 before
and after the occurrence, which is highly doubtful. It is admitted that
PW4 and PW5 were the relatives of the deceased, they were present at
the time of the inquest, but did not say anything about that alleged
occurrence to the Investigating Officer.
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14. The prosecution relied upon the evidence of PW4 and
PW5 as an eye witness to the occurrence. PW4 Thiru.Saravanan,
deposed that he knew, the deceased and the accused. On 18.2.2016 he
and Thangaraj (PW5) went to meet his uncle Murugan, a resident of
Ammaiyarpatti. On their way near Appayya Nayakanpatyi, they saw the
deceased Muthukumar along with the Accused, sitting under a tree and
consuming alcohol. Upon enquiry, the deceased stated that he was going
to Kerala for the job, he need to go to Sathur to pick up his sister’s
husband. In his presence, he could not consume alcohol and therefore
drank with the accused. A bike was parked nearby, and it was stated that
three of them had arrived on that bike. He and Thangaraj went to urinate
and heard a noise. He saw three of them were fighting. He then went to
his uncle’s house and returned after two days. He found the dead body of
Muthukumar suspiciously.
15. During cross-examination, he admitted that he could
reach Ammayarpatti via a straight road. Appayanaikanpatti (place of
occurrence) is situated beyond three villages which is not the nearest
road to reach his destination, it is a much farther road. The witnesses
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decision to go via Appayanaikanpatti, instead of taking available road
without providing any reason created suspicion He further stated that
liquor bottles, plastic glasses, and snack pockets were found at the place
of occurrence. But no such material was recovered by the Investigating
Officer.
16. PW5 in his evidence stated that on the date of
occurrence, the accused and the deceased had a fight, A2 Muthukumaran
(since deceased) held the deceased Muthukumar while A1 Murugesan,
attacked the deceased with a stone (MO.5). They then proceeded to their
place and returned after two days. Upon noticing the Police examining
witnesses near the well, he narrated the incident to the police officials.
17. Though the Investigating Officer cited PW4 and PW5 as
an eyewitness to the occurrence, PW4 did not mention anything about the
attack by A1. On the contrary, PW5 stated that A1 attacked the victim
with M.O5 stone.
18. PW5 admitted in his cross examination that a complaint
was lodged by PW1 regarding his son’s disappearance. On the other
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hand, PW4 denied that nobody informed him about the same. If PW4 and
PW5, witnessed the incident, they would not have remained silent but
would have informed the same to the Police or PW1. Both their silence
creates serious doubt about their presence at the place of occurrence.
19. P.W.24, the Investigating Officer prepared an inquest on
20.2.2015 between 10.45 and 12.15 p.m. In his cross-examination, he
admitted that at the time inquest PW4 and PW5 were present but he did
not mention their name in the inquest report, that the deceased was last
seen alive by PW4 and PW5. If really, PW4 and PW5 had truly been
present at the scene of occurrence and witnessed the occurrence, they
would have informed the same to Investigating Officer about the fight
and the attack by the accused which would be reflected in the inquest
report. However, in column 4 of the above report, it was mentioned that
the deceased was last seen alive by someone. No material was recovered
from the place of occurrence to show that the deceased and the accused
were consuming alcohol. Likewise, no alcohol content was found in the
internal organs of the deceased. However, it is peculiar that despite
knowing the deceased’s life was in danger, the above witnesses neither
attempted to provide details to the family members. The Evidence of
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PW4 and PW5 is not reliable, as their evidence was inconsistent with
each other, lacked corroboration and appeared to be fabricated to support
their relative and the prosecution case
20. PW6 and PW7 were deposed about the conspiracy
between the accused. PW6 in his chief examination stated that one month
before the occurrence both the accused conversed with each other that
they wanted to assault the deceased. PW6 and PW7 are the neighbours of
PW1. During cross-examination, they admitted that they knew that the
deceased Muthukumar was missing but they had not revealed anything to
the Police or PW1 about the conspiracy, soon after the disappearance of
victim Muthukumar.
21. The counsel for the appellant argued that there was a
delay in filing FIR and the delay was not properly explained.
22. The son of P.W.1 found missing on 18.2.2015 morning.
The complaint Ex.P1 was lodged on the next day viz., 19.02.2015 at
about 20.00 hours and received by the Judicial Magistrate Court on
20.02.2015 at about 1.00 p.m. There was delay in complaint and delay in
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forwarding the same to the Judicial Magistrate Court.
23. PW23, Thiru.Subbaiah, Sub Inspector of Police, who
registered the FIR admitted that the distance between the Police Station
and the Magistrate Court is 10 km. There is no plausible explanation by
the prosecution for the inordinate delay.
24. PW1 in his chief examination deposed that PW2
Vanniaraja told him that A1 and A2 made the deceased Muthukumar, sit
in the centre of their two-wheeler and travelled with him near Mathoni
on 18.2.2015 at about 10 a.m. which was reiterated by PW3. However,
PW2 Thiru.Vanniarajan and PW3 Thiru.Nagarathinam did not support
PW1's version during trial, but turned hostile. The prosecution failed to
prove that the deceased was kidnapped by the accused.
25. The accused were arrested and based on their
confession, the vehicle bearing registration No.TN 76 3016 was
recovered from A2 Muthukumaran (since deceased). However, the
vehicle was not standing in the name of A2 Muthukumaran. It was
standing in the name of one Syed Ibrahim. He was examined as PW17,
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he stated that he sold the vehicle on an exchange basis, but he is not
aware to whom it was sold.
26. Further PW1 in his chief examination stated that he saw
his son's dead body only with a brief/trunk. PW13 also corroborated the
same. But the PW24 Investigating Officer, in his inquest report in
column 7 mentioned that the dead body was found with light blue colour
underwear, printed full hand shirt. PW20 Police Constable also
confirmed that he received the above material from the dead body and
handed over the same to the Police. The evidence of PW1 and the
investigating officer is contrary, with regard to recovery of dresses from
the dead body.
27. According to the prosecution, the motive for the offence
was that A2 Muthukumaran attacked the deceased, leading to a case
being filed by the deceased against him, resulting in his conviction.
Therefore, A2 harboured enmity against the deceased. However, it was
not established that A1/the present appellant had any motive or enmity
against the deceased. It was stated that A1 was friend of A2 wanted to
help him. A1 and A2 conspired together to kill the deceased. But the
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conspiracy between the accused is not proved by the prosecution.
28. On careful perusal of the entire records, this Court is of
the view that there were lapses on the part of the Investigating Agency.
The evidence deposed by the witnesses is not cogent and consistent but
inconsistent and contradicts each other. The charges against the accused
were not proven by the prosecution beyond all reasonable doubt.
Therefore, the benefit of the doubt should be given to him and the
judgment of the trial Court is liable to be set aside for the reasons
aforementioned.
29.Therefore, we hold that the prosecution had not proved
the charges, the appellant/A1 is acquitted from the charges under
Sections 302, 364 and 201 IPC.
30. Accordingly, the Criminal Appeal stands allowed and the
judgment passed in S.C.No.40 of 2018 on the file of the IV Additional
District and Sessions Judge, Tirunelveli, dated 07.03.2020 is hereby set
aside. The appellant/A1 is acquitted of all the charges. The appellant is
directed to be set at liberty forthwith. The bail bonds executed, if any,
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shall stand cancelled. The fine amount, if any paid, shall be refunded to
the appellant/A1.
(G.J., J.) & (R.P., J.)
04.04.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
To
1.The IV Additional District and Sessions Judge,
Tirunelveli.
2.The Inspector of Police,
Karivalam Vanthanallur 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.
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DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
04.04.2025
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