Madras High Court
Venkadesh vs The State Rep. By on 9 April, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)Nos.339 & 386 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 05.03.2025
Pronounced on : 09.04.2025
CORAM :
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)Nos.339 & 386 of 2020
Venkadesh ... Appellant in Crl.A(MD)No.339 of 2020/
Accused No.4
1.Manikandan
2.Ajmeerkhan ... Appellant in Crl.A(MD)No.386 of 2020/
Accused Nos.1 & 3
Vs.
The State rep. by
The Inspector of Police,
Thirumangalam Taluk Police Station,
Thirumangalam
Madurai District.
(in Cr.No.301 of 2015) ...Respondent/Complainant in both appeals
1/24
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Crl.A(MD)Nos.339 & 386 of 2020
COMMON PRAYER : Criminal Appeals filed under Section 374(2) of
the Criminal Procedure Code to call for the entire records connected to
the Judgment in S.C.No.508 of 2016 on the file of the IV Additional
District and Sessions Court, Madurai, dated 14.10.2020 and set aside the
conviction and sentence imposed against the appellants.
In both appeals
For Appellants : Mr.M.Jegadeesh Pandian – for A4
Mr.Karuppasamy Pandiyan–for A1 & A3
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
COMMON JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
These Criminal Appeals are filed against the conviction and
sentence passed against the appellants/accused No.1, 3 and 4 in the
judgment dated 14.10.2020 passed by the IV Additional District and
Sessions Judge, Madurai in S.C.No.508 of 2016 by convicting and
sentencing the appellants for the offence punishable under
Sections 302, 341 r/w.34, 364 r/w.34, 120(b) r/w.302, 302 r/w.341 of
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IPC. A1 and A3 had been convicted for offence punishable under
Section 302 IPC and were sentenced to undergo life imprisonment each
and to pay a fine of Rs.5,000/- each in default to undergo six months
simple imprisonment each. A1, A3 and A4 had been convicted for
offence punishable under Sections 120(b) r/w.302 IPC and were
sentenced to undergo 10 years rigorous imprisonment, for offence under
Section 341 r/w.34 of IPC they were sentenced to undergo one month
simple imprisonment, for offence under Section 364 r/w.34 IPC they
were sentenced to undergo life imprisonment each and to pay a fine of
Rs.5,000/- each in default to undergo six months simple imprisonment
each. A4 had been convicted for offence under Section 302 r/w.34 of
IPC and sentenced to undergo life imprisonment each and to pay a fine of
Rs.5,000/- in default to undergo six months simple imprisonment.
Accused Nos.2 and 5 were acquitted.
2. The case of the prosecution in brief is as follows :
(a)The complainant is a resident of Melakottai Village,
Thirumangalam. His wife's name is Jeevarani. He had two sons viz.,
Ramachandran, Ramanathan @ and Ranjith. His younger son completed
ITI and worked in SIDCO No.3, HI Tech Company as a Mechanic at
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Kappalur. He had love affairs with one Hemalatha D/o. Pandiraj, whom
he married and living in Thirumangalam Pandi Nagar. In the meantime,
A1 was making some offensive gestures towards his daughter-in-law and
harassing her. She complained about the same to her husband and the
complainant.
(b) Both cautioned him, but A1 repeatedly gave trouble to
her, when the same was questioned by his son, he replied that he could
do whatever he wished. He also proclaimed that he would kidnap his
wife after killing him. A1 and the accused quarreled with each other, The
complainant separated them. At that time A1 was accompanied by his
father Murugan(A2), his friends, Amirkhan (A3) and Venkatesh (A4).
His son apprehends danger to his life.
(c) On 22.11.2015 his son came on his bike, heading to
work, the complainant and his elder followed him on another bike to
safeguard him. When he approached Thirumangalam Pandi Nagar,
Railway Gate, A1 to A4 intercepted his son, A1 confronted him asking
why he had repeatedly thrashed him and stated that if he were alive, he
would question him. Then, A1 attacked him with an iron rod on his head
while A2 restrained the deceased from proceeding further. A3 and A4
strangulate his son.
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(d) On witnessing the same, the complainant's elder son
attempted to intervene, but the assailants pushed them away and forcibly
took his son in a Tata Ace bearing Registration No. TN 58 Z 0633. The
complainant and his son chased them, but the vehicle suddenly
disappeared. On the next day at about 11:00a.m, they found his son’s
dead body near the Odaipalam Bridge, Vadakarai Colony situated at
Melakottai with severe head injury, and nail marks on his neck. A1 to A4
kidnapped his son and killed him and hence, lodged the complaint before
the Thirumangalam Police Station.
(e) The complaint Ex.P.1 was received by the Sub Inspector
of Police, Koodakovil Police Station on 23.11.2015 at about 13.00 hours,
he registered a FIR in Crime No.301 of 2015 for the offences under
Sections 342, and 302 of IPC. The FIR has been marked as Ex.P21. He
sent the original to the Judicial Magistrate through Police Constable,
Shajahan and other copies to the concerned Officers for reference.
(f) P.W.20, Thiru.Venkatasamy, Inspector of Police, took up
the case for investigation. After receipt of the FIR, on 23.11.2015 he
went to the place of occurrence at about 14.00 hours and prepared
observation mahazar Ex.P.5, rough sketch Ex.P.2 in the presence of
witnesses Backiyaraj and Radhakrishnan. He recovered blood stained
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earth -M.O.4, ordinary earth-M.O.5 and Helmet -M.O.8 under a recovery
mahazar Ex.P.6.
(g) He conducted inquest on the dead body in the presence
of panchayadhars and prepared inquest report Ex.P.23. He had sent the
dead body through Constable Rajarajan -419 with a requisition letter to
conduct postmortem to the Government Hospital duty Doctor.
(h) On the same day at about 17.00 hours, he went to
Pandiyan Nagar 1st Street and prepared observation mahazar Ex.P24,
rough sketch Ex.P.25 in the presence of Manickaraj and Paulraj. He
recovered white colour fuse carrier – M.O.9 under recovery mahazar
Ex.P.26. He examined Varadharaj- P.W.1 and recorded his statement.
(i) He also examined the witnesses Hemalatha,
Balakrishnan, Vairamuthu, Santhanam, Backiyaraj, Radhakrishnan,
Manickaraj, Paulraj and recorded their statement.
(j) On 24.11.2015 he recorded the further statement of P.W.1
Varadharaj. He conducted search to arrest the accused and at about 13.30
hours he arrested A1 to A4 in front of the Anandha Theatre. In the
presence of witnesses Ramamoorthy, Village Administrative Officer and
Nagarajan, Village Assistant and then recorded the confession statements
of A1 and A4, under Ex.P.10 and Ex.P.12, recovered Tata Ace Vehicle
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bearing Registration No.TN 58 Z 0633 – M.O.1, iron rod – M.O.3 from
A1. Two wheeler of deceased Ramanathan bearing Registration No.TN
67 AF 3882-M.O.2 from A4 under recovery mahazar – Ex.P.13.
(k) He brought the accused to Police Station and handed
over to judicial remand. He send the material objects to the Magistrate
Court.
(l) On 25.11.2015, he arrested Smt.Hemalatha, A5 at 7.00
p.m., with the help of Women Constable in the presence of Village
Administrative Officer Ramamoorthy, his Assistant Nagaraj and recorded
her confession statement Ex.P.14, recovered the micro-max cell phone –
M.O.6, Nokia cell phone – M.O.7 under a recovery mahazar Ex.P.15 in
the presence of witnesses.
(m) Thereafter, he altered the section of law from 302 IPC to
Sections 147, 342, 365, 302, 201 r/w.120(b) IPC under alteration report
Ex.P.27. He handed over A5 for remand through Women Police. He
forwarded the material objects through form-95 to the Judicial
Magistrate, Thirumangalam.
(n) He recovered the dresses worn by the deceased at the
time of death namely, jeans pant, full hand shirt, ash colour banian &
brief (jatti) – M.O.10 to M.O.13 under form-95 Ex.P.28 which was
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handed over by the Head Constable Rajarajan and sent the material
objects to chemical analysis through Women Constable Swedha.
(o) He examined the witnesses and recorded their
statements. He also examined P.W.12 Dr.Mahesh Kumar, who had
conducted postmortem on the dead body and issued postmortem cum
final opinion under Ex.P16, with the following observation :
“The deceased would appear to have died of vital
organ injury and skull fracture with intracranial hamatoma
and asphyzia due to manual strangulation”
(p) Thereafter, he examined the witnesses in various dates
and recorded their statements.
(q) After completion of the investigation, he filed a charge
sheet against the accused on 10.03.2016, for the offence under Sections
120(b), 341, 342, 364, 302 and 201 IPC.
3.Upon receipt of the records, the Judicial Magistrate,
Thirumangalam took up the case in P.R.C.No.20 of 2016 and issued
summons to the accused. After appearance of the accused, copies of all
the prosecution documents were furnished to them free of cost as per
Section 207 of Cr.P.C.
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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, Madurai, under Section 209(A) of
Cr.P.C. for further action.
5.The Principal District and Sessions Judge, Madurai
received the case records and numbered the case as S.C.No.508 of 2016,
and made over to the IV Additional District and Sessions Judge,
Madurai, for disposal according to law.
6. Upon receipt of the case records, the learned IV
Additional District and Sessions Judge, Madurai, after hearing the
learned Public Prosecutor and defence counsel, framed charges against
the accused for the offence under Sections 341 r/w.34, 364 r/w.34, 302
r/w.34 IPC against A1 to A4, Section 120(b) r/w.302 IPC against A1, A3,
A4, and Section 109 r/w.302 against A5. The charges were read over and
explained to the accused. The accused denied the charges and claimed to
be tried. Therefore, the case was posted for trial.
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7. In order to prove the case of the prosecution, P.W.1 to
P.W.20 were examined, and Ex.P1 to Ex.P28 were marked, and material
objects M.O.1 to M.O.13 were produced. On the side of the accused, no
witnesses was examined and no document marked.
8. After full trial, the Trial Court held that the accused No.1,
3 and 4 were guilty of the offence punishable under Sections 302, 341
r/w.34, 364 r/w.34, 120(b) r/w.302, 302 r/w.341 of IPC. A2 and A5 were
acquitted. A1 and A3 had been convicted for offence punishable under
Section 302 IPC and were sentenced to undergo life imprisonment each
and to pay a fine of Rs.5,000/- each in default to undergo six months
simple imprisonment each. A1, A3 and A4 had been convicted for
offence punishable under Sections 120(b) r/w.302 IPC and were
sentenced to undergo 10 years rigorous imprisonment, for offence under
Section 341 r/w.34 of IPC they were sentenced to undergo one month
simple imprisonment, for offence under Section 364 r/w.34 IPC they
were sentenced to undergo life imprisonment each and to pay a fine of
Rs.5,000/- each in default to undergo six months simple imprisonment
each. A4 had been convicted for offence under Section 302 r/w.34 of
IPC and sentenced to undergo life imprisonment and to pay a fine of
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Rs.5,000/- in default to undergo six months simple imprisonment.
Against this, these Criminal Appeals are filed on the following, among
other grounds:-
(a) That the trial Court has failed to consider the evidence of PW3
in a proper manner. It is the evidence of PW3 that on the date of
occurrence i.e., on 22.11.2015 P.W.1 and him has lodged a complaint
before the Police. If it so, it is the earliest document in the case. The
complaint was not produced and marked as one of the Exhibit.
(b) That the trial Court ought to have seen that the origin and
genesis of the occurrence was not proved in a manner known to law.
(c) That the trial Court has failed to note that PW8 evidence is
unbelievable, not sufficient to connect the Appellant /Accused No.4 in
the case.
(d) That the trial Court should have seen that there is delay in
despatching the F.I.R to the Magistrate Court. On 23.11.2015 at 01.00 hrs
PW1 said to lodged a complaint (Ex.P.1) before the Police. On
23.11.2015 at 06.00 P.M the F.I.R reached the Judicial Magistrate Court.
(e) That the trial Court ought to have seen that PW1 and PW2 are
father and brother of the Deceased. PW1 and PW2 are proposed as an
eyewitness to the occurrence. It is the evidence of PW1 and PW2 that
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they saw the incident/occurrence, after searching; they went to the house,
without informing to the Police. Next date on 23.11.2015 at about
11.00 a.m., they came to know about the body is lying in the particular
place, then on 23.11.2015 at about 01.00 hour they went to the Police
Station and lodged a complaint.
(f) That the trial Court should have that the contact of PW1 and
PW2 are unnatural and highly unbelievable, it shows they may not be an
eyewitness to the occurrence.
(g) That the trial Court failed to appreciate the validity of the
statement recorded under Section 161(3) Cr.P.C. It is needless to say it is
not admissible piece of evidence.
(h) That the trial Court ought to have seen that there is no motive
between A4 and deceased.
(i) That the trial Court failed to consider that the entire case based
upon eyewitness account. Per contra, Investigation Officer admitted that
sniffer dog was pressed into service and fingerprints of the persons also
were lifted from the place where the body was available. But the
fingerprints and other reports relating to sniffer dog have not been
produced before the Court. So the adverse inference envisages in Section
114(g) of the Indian Evidence Act can easily be drawn against the
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prosecution for withholding the evidence deliberately.
(j) That the trial Court failed to consider that according to the
prosecution case the accused No.1 to 4 were arrested on 24.11.2015. Per
contra PW-1 & PW-5 have deposed that they haves seen all the accused
in the police station even on 23.11.2015 and also they happened to see
the MO.3 (Iron rod). So the theory of arrest made by the prosecution has
gone out.
(k) That the trial Court failed to consider that the evidence of
PW-11 who is a VAO, he categorically stated that he happened to see all
the accused only in police station and the documents and formalities
relating to the occurrence were not made at the place where the arrest
was made.
(l) That the trial court failed to consider that the material
contradiction which affects the prosecution case. According to the
prosecution case the occurrence took place on 22.11.2015 at 10 p.m. Per
contra Ex.P.23 inquest which reveals that the dead body of the deceased
was found by P.W.6 on 22.11.2015 at 7.30 a.m. moreover the doctor who
conducted autopsy gave opinion that the death could have been occurred
even on 21.11.2015. So the claim of prosecution case and the evidence of
P.W.6, P.W.12 and Ex.P.23 is mutually contradictory and incongruous
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with each other.
(m) That the trial Court failed to consider that the accused no. 2 &
5 are acquitted since there is a lack of evidence. Per contra, on the same
type of evidence the accused no.1, 3 and 4 are convicted surprisingly.
The trial Court failed to know the basic concept in criminal law that what
applies to the one accused, shall apply to the other accused who were on
joint trial based on the same set of evidence. Hence, the judgment dated
14.10.2020 of the Trial Court is liable to be set aside.
9. The learned Additional Public Prosecutor appearing for
the respondent argued that the motive for the occurrence was spoken
about by the witness P.W.1, P.W.2 are eye witness spoke about the
carried out by the accused and kidnap. Subsequently, the dead body was
found severe injuries and nail marks in his neck. The accused were
arrested, and their confession statements were recorded, and materials
objects were seized. The prosecution proved the case beyond all
reasonable doubt. He submitted that there is no need to interfere with the
judgment of the Trial Court, and prayed for the dismissal of these
Criminal Appeals.
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10.Heard the learned counsel on either sides and perused the
evidence on record.
11.Now this court has to decide whether the judgement
rendered by Trial Court is proper or liable to be set aside.
12.Since the issues, facts, evidences and documents
involved in these Criminal Appeals are all one and the same, they are
taken up for hearing together and are disposed of by this common
judgment.
13. The appellant submits that the trial Court ought to have
seen that P.W.1 and P.W.2 are the father and brother of the deceased. P.W.
1 and P.W.2 were cited as an eyewitness to the occurrence. It is the
evidence of P.W.1 and P.W.2 that they saw the incident / occurrence, and
after searching, they went to the house, without informing the Police.
Next date on 23.11.2015 at about 11.00 a.m, they came to know that the
body was lying in a particular place, then on 23.11.2015 at about 01.00
hour they went to the Police Station and complained. The trial Court
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should have seen that the conduct of P.W.1 and P.W.2 is unnatural and
highly unbelievable, it shows they may not be an eyewitness to the
occurrence.
14. Prosecution indeed referred the P.W.1 and P.W.2 as
eyewitness to the occurrence. P.W.1, the complainant and the father of
the deceased Ramanathan, during trial, deposed that A1, Manikandan
made offensive gestures towards the wife deceased viz., Smt. Hemalatha.
Both the P.W.1 and deceased cautioned him against such behavior.
However A1 repeated the act, the deceased confronted him, leading to
quarrel. P.W.1 and others intervened and separated them. Following this
A1, openly threatened to kill deceased Ramanathan, and would kidnap
his wife, several individuals witnessed the incident.
15. As a result deceased feared his life. Whenever he goes
work, P.W.1, also accompanies him. On the night of occurrence viz.,
22.11.2015 at 10 p.m, he and his elder son (P.W.2) were riding one bike
while deceased Ramanathan was on another bike, when they reached
near Thirumangalam Railway Gate, A1 to A4 intercepted his son, A1
shouted at him, accusing him of repeatedly causing problem. He said if
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the deceased remained alive, he would question him. A1 then declared
that he wanted to eliminate him and struck him on the head A2,
prevented him from proceeding further while A3 and A4 strangulated
him. He and his son try to intervene, but they were pushed aside by the
accused, then kidnapped the deceased along with his bike in a Tata Ace
vehicle bearing registration number bearing No.TN 58 Z 0633. He along
with his elder son (P.W.2) chased the vehicle, but he could not locate it.
16. The next day he continued searching, at around 11 a.m,
he found the dead body of his son in a village Bond of Vadakara colony,
near Melakottai and lodged a complaint against that the accused.
17. During cross examination, P.W.1 admitted that on the
date of occurrence, baby shower function was conducted for his
daughter-in-law (A5). He came in the morning, attended the function and
then returned to his residence. He has not explained why he came back
again to the place of occurrence. He further admitted that soon after the
hit, blood was oozing from the head of his son and the place of
occurrence spilled with blood. But the Investigating not collected any
blood samples from the place of occurrence, he stated that no such
evidence available in the place of occurrence except a fuse carrier.
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18. As per P.W.1, he and his son P.W.2 were riding in a bike
to safeguard his deceased son; his son was also riding alongside him. On
the contrary of P.W.2 stated that he and his father were travelling on the
two wheeler alone at that time, the deceased arrived, and he was directed
to stop. Both the statements are contrary.
19. The initial incident occurred at 10 p.m on 22.11.2015.
Both P.W.1 and P.W.2 testified that the deceased was brutally attacked by
A1 and strangulated by A3 and A4 then, kidnapped the deceased. P.W.1
stated that, A2 prevented the deceased from moving forward, but P.W.2
not stated about the participation of A2. Despite being aware of the
deceased’s critical condition, neither P.W.1 nor P.W.2 filed a complaint,
before the Thirumangalam Police Station, which could be reached within
three minutes. P.W.2 attributed the delay to his father’s high blood
pressure yet P.W.2 unencumbered by such circumstances, also refrain
from reporting the incident to the police promptly.
20. Both witness claimed to have discovered the deceased
body, the following day subsequently lodging a complaint at 1PM,
indicating a significant delay. Had P.W.1 and P.W.2 be present at the
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scene as they accepted, it would be reasonable to expect them to file a
complaint immediately. This delay creates doubt on their claimed
presence during the occurrence. The prosecution not able to established
the fact that the first occurrence place at 10.00 p.m in the presence of
P.W.1 and P.W.2.
21. P.W.6, a worker from the corporation, states that he saw
that dead body at 7:30 hours and immediately informed the Village
Administrative Officer and his assistant. P.W.20 the Investigating Officer
also admitted this, but he did not examine the Village Administrative
Officer. It is not known why the Village Administrative Officer did not
file any complaint soon after witnessing the dead body.
22. P.W.20 stated that they brought sniffer dog to know the
real accused. The report of sniffer dog, did not find in the records. The
FIR was reached in the Judicial Magistrate Court on 23.11.2015 at 14:30
p.m by the P.W.17, the Head Constable who had handed over the FIR
admitted that they could reach the Court and the residence of the Judicial
Magistrate within five minutes.
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23. The delay in registering the FIR and delay in sending the
same to the Judicial Magistrate, not properly explained the prosecution.
24.P.W.3, Balakrishnan stated that on 22.11.15 at 10 hours,
he had gone to meet his son at Pandian Nagar when he heard alarm he
was informed by P.W.1, who came from the opposite direction that his
son Ramanathan had been kidnapped by A1, A3 and A4.
25. During cross examination, P.W.2 stated that he chased
the vehicle belonging to the accused for about 2 km, and then returned
back to Railway Gate, where he met P.W.1. Then the P.W.1 lodged a
complaint at the Thirumangalam Police Station. The police arrived at the
scene of occurrence at 12 hours and went to the deceased's house.
Subsequently, arrested A5. If P.W.2’s is to be believed, it indicates that a
complaint was lodged on the same day at 12.00 hours. However, this
was concealed by the police for reason best known to them.
26. P.W.5, Tr. Santhanam, deposed that on 22.11.2015 date
of occurrence he saw individuals washing their vehicle at around 11.30
p.m. Upon enquiry, they informed that they had brought saplings and the
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vehicles had become dirty, hence they were washing it. He then noticed a
person lying on his back and questioned them about it. He was told that,
the person was sleeping due to exhaustion from heavy work. P.W.5
identified the accused before the court. However during cross
examination admitted that he did not know the name of accused or their
father’s name. He stated that he had seen them in the auto stand but
unaware of their name and addresses. No identification Parade was
conducted by the police to confirm that he had previously seen the
accused.
27. The motive for the crime as elicited by the prosecution is
that A5, the wife of deceased had an illegal relationship with A1. The
deceased cautioned, both A1 and A5 regarding their relationship.
Aggrieved by the same A5 induced A1 and therefore A1 to A4,
intercepted, attacked and kidnapped him and murdered him on
22.11.2015. It was also contended that A5 used to talk with A1, in a
Micromax cell phone, which was gifted by A1. The phone was recovered
by the Investigating Officer, but he failed to collect the call record details
and produce before the court to show the contact between A1 and A5.
Therefore, the motive for the crime and the alleged illegal relationship
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between A1 and A5 was not established with document or oral evidence.
28. The prosecution failed to establish the crime against the
accused beyond all reasonable doubt. Hence the benefit of doubt is given
to accused and judgment of the trial Court liable to be set aside.
29. Accordingly, these Criminal Appeals are allowed and the
judgment passed in S.C.No.508 of 2016 on the file of the IV Additional
District and Sessions Judge, Madurai, dated 14.10.2020 is hereby set
aside. The appellants/A1, A3 & A4 are acquitted of all the charges. The
appellants are directed to be set at liberty forthwith. The bail bonds
executed, if any, shall stand cancelled. The fine amount, if any paid,
shall be refunded to the appellants/A1, A3 & A4.
(G.J., J.) & (R.P., J.)
09.04.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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Crl.A(MD)Nos.339 & 386 of 2020
To
1.The IV Additional District and Sessions Court,
Madurai,
2.The Inspector of Police,
Thirumangalam Taluk Police Station,
Thirumangalam,
Madurai 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 ( Uploaded on: 16/04/2025 06:58:41 pm )
Crl.A(MD)Nos.339 & 386 of 2020
G.JAYACHANDRAN J.
AND
R.POORNIMA, J.
RM
Judgment in
Crl.A(MD)Nos.339 & 386 of 2020
09.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/04/2025 06:58:41 pm )
