Madras High Court
R.Senthilkumar vs State Represented By on 4 March, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.254 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 18.02.2025
Pronounced on : 04.03.2025
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.254 of 2020
1. R.Senthilkumar
2. N.Rajangam .. Appellants /A1 & A2
[2nd appellant died on 25.09.2024-
appeal abated as against him]
Vs.
State represented by,
The Inspector of Police,
Thirupachethi Police Station,
Sivagangai (Crime No.235/2011),
Sivagangai District. .. Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, against the judgment dated 31.01.2020 in S.C.No.85 of
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Crl.A(MD)No.254 of 2020
2014 on the file of the learned Principal District and Sessions Judge,
Sivagangai.
For Appellants : Mr.P.Andiraj
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The appellants 1 and 2 are son and father. The trial Court found
them guilty for offence under Section 341 IPC and sentenced them to
undergo one month simple imprisonment and to pay a fine of Rs.500/-, in
default, to undergo 15 days simple imprisonment. Also, as against A1, the
court found him guilty for offence under Section 302 IPC and sentenced him
to undergo Life Imprisonment with fine of Rs.2,000/-, in default, to undergo
3 months rigorous imprisonment. Similarly, A2 was found guilty for offence
under Section 302 read with 34 IPC and sentenced him to undergo Life
Imprisonment with fine of Rs.2,000/-, in default, to undergo 3 months
rigorous imprisonment.
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2. The above said judgment rendered in S.C.No.85 of 2014 by
the learned Principal District and Sessions Judge, Sivagangai is under
challenge in the present appeal. The grounds of appeal reads as under:-
The judgement of the trial Court is based only on presumption,
surmise conjuncture. The Court below failed to appreciate the contradictions
in respect of material facts. The testimony of PW1 and PW2 ought to have
been rejected by the trial Court since they both are interested witness and
there is no corroboration to their ocular evidence. The contradiction between
the testimony of PW1, PW2 and PW3, particularly, in respect of scene of
occurrence and the role alleged to have been played by the accused persons,
though properly highlighted by the defence, were not considered by the
Court below. The motive as well as the meeting of mind between the two
accused to attract offence under section 34 of IPC not established by the
prosecution beyond reasonable doubt. While so, the conviction of the
accused without sound reasoning and evidence beyond pale of doubt is liable
to be set aside and the appellants have to be set acquitted and set free.
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The case of the prosecution:
3. Kalyanasundaram (the deceased) and Rajangam (the second
accused) are blood brothers. The second accused was demanding share in the
35 cents of land held by his brother Kalyanasundaram. Since it was the self
acquired property of Kalyanasundaram, he refused to share the property with
his brother, the second accused. Hence, there was animosity between them.
On 20.09.2011 at about 3.00 pm Kalyanasundaram(deceased) and his son
Ganesan (PW1) went to their field and returning back to the home. By that
time in search of the deceased and PW1, the son-in-law of PW-1 by name
Senthilkumar (PW2) came near the Tirupachethi Thidal and all three joined
and returning back. At about 6.15 pm, while the deceased was walking ahead
of PW-1 and PW-2 about 200 feet away followed by PW1 and PW2
conversing with each other, A1 and A2 came out from the sugarcane field
restrained Kalyanasundaram. A2 caught hold of the hands of
Kalyanasundaram and demanded to give share in the property and threatened
Kalayasundaram if he refuse to share the property, he will be done to death.
However, Kalyanasundaram refused to give share in the property,
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Immediately A2 told his son A1 “we need not leave this old man alive any
further, hack him”. Thereafter A1 attacked Kalyanasundaram on his head
with the bill hook. Kalyanasundaram on sustaining injury fell to ground. A2
again told A1 “he should not be left alive, chop his head”. A-1 again
attacked Kalayasundaram on the neck. Thereafter A-1 and A-2 ran away.
Kalyanasundaram died on the spot.
4. The crime was reported by PW1 to the respondent police
through a written complaint- Ex.P1. The FIR was registered in Thirupachethi
Police Station Crime No.235 of 2011 at 18.45 hours by the Sub-Inspector of
Police Mr.Krishnan (PW-12) and placed it before the Inspector of Police
Mr.Kumaran (PW13) for further action. PW-13, took up the investigation.
He visited the scene of crime and prepared rough sketch (Ex.P-14) and
observation mahazar (Ex.P-2). After collecting soil from the scene of crime
both with blood stain and without blood stain, conducted inquest in the
presence of panchayathars and prepared the inquest report (Ex.P-15) at about
19.45 hrs. Next day (21.09.2011) on information at about 6.30 a.m, PW-13
went near Vaigai Meenachipuram bridge, found A1 and A2 and arrested
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them. Upon their confession the bill-hook (M.O.1) used by A-1 to commit
the crime was recovered from the bush at Karuppaiah Pillai graveyard.
5. PW1-Ganesan, son of the deceased Kalyanasundaram had
deposed about the motive and also of the overt-act of A1 and A2 as found in
his complaint Ex.P-1. PW-2, yet another witness to the occurrence has
corroborated PW1. The scientific officer who conducted serology material
objects had given his report (Ex.P-11). Though one of the witness (PW6) to
the recovery had turned hostile, the trial Court with the aid of the ocular
evidence and the medical evidence, relying upon the dictum laid in the
judgment of the Hon'ble Supreme Court in Mritunjoy Biswas v. Pranab
alias Kuti Biswas and another [2013 (12) SCC 796] held the charges against
A-1 and A-2 found proved and sentenced them to undergo imprisonment as
stated above.
6. The learned counsel for the Appellant submitted that the
lower Court failed to consider PW1 and PW2 who are claiming as witnesses
to the occurrence are really interested witnesses and their evidence lack
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corroboration. The house of the deceased is on the way to the police station,
but PW-1 had deposed that he crossed his house but did not inform about the
death of his father to anyone in his house. The case of prosecution is that for
some time there was threat to the life of the deceased and was always moving
with someone as aid. PW-2 had also deposed that, on that fateful day, the
deceased and PW-1 did not return home for a long time, so his family
members asked him to go to the field and find out what happened to them.
Thus, it appears that the family members were anxious to know what
happened to the deceased who did not return home. While so, it is natural to
expect PW-1 to inform his family members first about the incident. Failure to
inform his family first is un-natural and contrary to any human conduct.
6.2. With regards to lodging of the complaint which is marked
as Ex.P1, the informant PW-1 had deposed that the complaint Ex.P-1 was
written at the police station with the help of a passerby. Whereas PW-12 had
deposed that PW-1 came to the Station along with the written complaint. No
other villagers accompanied PW-1. Contrarily, PW-3 who had attested
Ex.P-1, had deposed that, in the station the complaint was written. It was not
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written by any of the policemen in the station. 4 or 5 of the villagers were
present at that time. One among them wrote the complaint.
6.3. The presence of PW-1 and PW-2 to witness the crime is
highly improbable since, PW-1 in his complaint has stated that he heard A-2
instigating A-1 to attack his father, after A-1 attacked his father, both of
them ran away. He and PW-2 lifted his father. Whereas before the Court, he
denies that he and PW-2 lifted the body of the deceased soon after he fell
down after receiving the injury. Contrarily, PW-2 claims that after the attack,
he and PW-1 lifted the deceased but their cloths did not strained with blood.
If really PW-1 and PW-2 were within audible distance to hear the voice of
the accused, they would have tried to prevent the assault or atleast tried to
apprehend them after the attack. If they had lifted the bleeding victim, blood
strains would have been in their clothes. The trial Court ought to have
considered this grave contradiction which shakes the root of the prosecution
case and the reliability of the witnesses PW-1 and PW-2 about their presence
at the time of occurrence.
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6.4. PW-1 had deposed that on the date of occurrence, he and
his father after taking their lunch at 2.00 pm, left the house to the field by
3.00 pm. They working in the field for nearly 2 hours. At about 5.30 p.m,
PW-2(Senthilkumar) came to the field in search of them. Whereas, PW-13,
the Investigating Officer had deposed that when he enquired
Balasubramaniam(PW-4), who is the son-in-law of the deceased
Kalyanasundaam, he came to know that the deceased went to the field in the
morning itself.
6.5. The contradiction about the scribe of the complaint coupled
with the fact that PW-3 came to the scene of crime after hearing the news,
then went to the police station and signed in Ex.P-1 not given due
consideration by the trial Court. In the FIR, the time of occurrence is
mentioned as 18.15 hrs. The said complaint registered at 18.45 hrs. It
reached the residence of the Judicial Magistrate at 9.00 pm. If the evidence
of PW-2 to be believed, that PW-3 came to the spot within 10 minutes and
stayed with him for 5 minutes and then left to the Police Station, which is
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3km away from the scene of crime, then his presence at police station before
18.15 hrs to sign in the complaint as attesting witness has to be necessarily
disbelieved. If the converse is true, then the evidence of PW-3 has to be
disbelieved. Either way, the prosecution case suffers material infirmity
regarding the time of occurrence and the presence of PW-1 and PW-2. The
trial Court erred in not considering the material contradictions between
PW-1, PW-2 and PW-3 with respect to the manner in which the incident
happened and the manner in which it was reported to the police. The
evidence of PW-1, PW-2 and PW-3 are not only contradictory but also self
destructive. As such lower Court ought to have acquitted the accused.
7. According to the Investigating Officer, the accused were
arrested on 21.09.2011 at about 6.30 am. Thereafter M.O.3 weapon was
recovered under mahazar(Ex.P-17) in the presence of two witnesses. Since
PW6 (VAO) who is one of the witness to the recovery has turned hostile and
had deposed that he signed in the Mahazar(Ex.P-17) at the police station
where he saw the accused persons and say nothing else, the recovery of
M.O3(Bill hook) based on the alleged confession of the accused remains
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unproved. Further, the description of the weapon which was alleged to have
recovered on 21.09.2011 based on the confession given by A-1, find place in
column No.10 of the inquest report-Ex.P-15 prepared on the previous day
ie., 20.09.2011 between 19.45 hrs to 21.30 hrs. Therefore M.O.3 sent for
serology examination is not the weapon found at the scene of crime or the
weapon alleged to have been used for the crime.
8. The learned Counsel for the appellant, submitted that the
lower Court failed to consider that the prosecution has failed to prove the
material and foundational facts including the motive alleged against the
accused. Hence, the contradictions which go to the root of the prosecution
case has to be appreciated properly.
9. Per contra, the learned Additional Public Prosecutor for the
State submitted that, the contradictions mentioned by the learned defence
counsel are very trivial in nature.
10. The evidence of the ocular witnesses namely, PW-1 and
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PW-2 not been impeached despite extensive cross examination. PW-3 and
PW-4 are the witnesses who had spoken about the animosity between the
accused and the deceased in respect of sharing the 35 cents of land. The
blood stained soil recovered from the scene of occurrence tallies with the
blood group of the deceased. The serology report marked as Ex.P11 and the
evidence of PW-5 who is witness to the observation mahazar (Ex.P-2)
establishes the scene of crime. Therefore, the contention of the learned
counsel for the appellant that the prosecution has not established the scene of
crime does not carry merit.
11. The learned Additional Public Prosecutor further submitted
that, the reference of the weapon with description in the inquest report dated
20.09.2011 prepared prior to the recovery of the weapon on the next day ie.,
21.09.2011 at 6.30 a.m, though renders the recovery doubtful, the lapse is
attributable to the Investigating Officer, that lapse cannot whittled down the
overwhelming evidence of the ocular witnesses.
12. Relying on the judgment of the Hon’ble Supreme Court in
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Munnalal and another –vs- State of UP reported in CDJ 2023 SC 059, the
learned Additional Public Prosecutor submitted that mere defects in the
investigation by itself cannot constitute ground for acquittal. It is the legal
obligation of the Court to examine carefully in each case the prosecution
evidence dehors the lapse committed by the Investigating Officer to find out
whether the evidence brought on record is at all reliable and whether the
lapses affect the object of finding out the truth.
13. He further submitted that, the Hon'ble Apex Court in the
above case, has observed that, the endeavour of the Court has to reach the
root of the matter by analyzing and assessing the evidence on record to
ascertain whether the appellants were duly found to be guilty as well as to
ensure that the guilty does not escape the rigors of law. Court should refrain
itself from giving primacy to the negligence of the Investigating Officer as
well as to the omission or lapses resulting from the perfunctory investigation
undertaken.
14. Heard the learned Counsel for the appellant and the learned
Additional Public Prosecutor for the State.
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15. This is a case of homicial death of one Kalyanasundaram,
aged 70 years. Investigation in this case was set into motion on the complaint
given by Ganesan(PW1), son of the deceased Kalyanasundaram. As per the
complaint, the occurrence took place on 20.09.2011 around 18.15 hours.
While PW1 along with his father and son-in-law Senthilkumar(PW2) were
proceeding towards their house through the land of the deceased near
Thirupachethi Thidal. According to the complaint, the appellants who are
brother and brother's son of the deceased came out from the sugarcane field
and his brother(A2) hold the hands of the deceased and his brother's son(A1)
after demanding share in the property attacked him with the bill hook marked
as M.O.1 on the head and neck of the deceased causing instant death. The
postmortem report marked as Ex.P9 disclosed the following external injuries:
1. An incised wound level 10cmx3cm with variable depth
(3cm to 5cm depth) seen over the front of neck.
2. Laceration 6cm x 2cm bone depth seen over the parieto
occipital region.
3. On dessection of the neck, an incised wound, neck
muscles, right jugular vein, right carotid artery clearly
cut.
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4. On opening of skull committed fracuture measuring
5cm x 2cm seen over the occipital scalp contusion 8 cm x
3cm seen over the parieto occipital region of the skull.
The postmortem doctor opined that the deceased would
appear to have been died on shock and hemmerrhage due
to insized wound over the neck.
16. The weapon used to cause the death identified by PW1 in the
Court and marked as M.O.1. PW2, the son-in-law of PW1 has corroborated
the evidence of PW1 substantially insofar as the overt-act of the accused
persons and the injuries caused to the deceased by A1. The learned counsel
for the appellants doubt their presence on the ground that if the two
witnesses were really present at the time of occurrence, they would have
tried to prevent the assault or atleast would have got the assailant. They both
have not even tried to rescue the injured person. Absence of blood stain and
non- recovery of their clothe makes their presence at the time of occurrence
as deposed highly doubtful. The victim is father of PW1. Assailant is the
paternal uncle of PW1. There is no necessity for PW1 to falsely implicate his
paternal uncle unless and until the defense could strongly establish ill-motive
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to fix the appellants. In this case there is no such element available.
17. PW-10 (Dr.Senthilkumar) was conducted postmortem had
opined that the injuries found on the body of the deceased and as recorded in
the report-Ex.P9 might have been caused using M.O.1 since the description
of the weapon is mentioned in the inquest report prepared at the scene of
occurrence on 20.09.2011 between 19.45 hours to 21.31 hours. The learned
counsel appearing for the appellants submitted that M.O.1 which alleged to
have been recovered on the next day could not be the weapon used for the
commission of offence. It further creates doubt about the confession and
recovery. This Court, after perusing the evidence of PW6-Gajendran, who is
the witness for recovery having not supported the case of the prosecution and
the description of weapon at Column No.10 of the inquest report which
descripes the weapon used for the crime even before it was recovered from
the accused as per the prosecution clearly disprove the case of the
prosecution regarding the recovery of M.O.1.
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18. In view of this Court, this is a lapse on the part of the
investigation and a clear outcome of defective investigation. However as
mandated by the Hon'ble Supreme Court, the disturbing features in the
process of investigation should not allow a guilty person got escaped from
the rigors of law. Therefore, a proper evaluation of the various facts and
circumstances and the credibility of PW1 and PW2 bound to be scrutinzed
dispassionately. While doing so, we find that the occurrence was taken place
near the fields on the Tirupachethi Thidal Road. The question put to the
witnesses in the cross-examination discloses property dispute between the
brothers. The family members of the deceased were under constant fear of
life threat which has made them to send PW2 to the field when the deceased
and PW1 did not turn up. The evidence of PW1 and PW2 are wholly reliable
and their evidence is corroborated through the medical evidence, namely
postmortem report.
19. Minor contradiction like the time, the deceased left the home
on that fateful day or the absence of blood stain in the clothe of PW1 and
PW2 does not impeach the credibility of these witnesses since these are
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trivial in nature in the light of unimpeachable evidence of PW1 and PW2.
Ocular witness coupled with medical evidence prevail over the discrepancies
mentioned by the learned counsel for the appellant. Therefore, this Court
holds that the finding of the learned Sessions Judge supported by the
reasoning and evidence has to sustain.
20. It is reported by the learned Additional Public Prosecutor
that pending appeal, the second appellant died and he produced the death
certificate before this Court. Since the second appellant/A2(Rajangam) died,
this criminal appeal stands abated as against the second appellant.
21. In the result,
(i) This Criminal Appeal is dismissed. The judgment of
conviction and sentence passed by the learned Principal Sessions Judge,
Sivagangai in S.C.No.85 of 2014 dated 31.01.2020 stands confirmed.
(ii) The first appellant/A1 is directed to surrender before the trial
Court within 15 days from today, failing which, he may be secured and
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committed to prison for undergoing the remaining period of sentence and the
accused is entitled to set off the period already undergone by him in the
prison.
[G.J.,J] & [R.P., J]
04.03.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PJL
To
1.The Principal District and Sessions Judge,
Sivagangai.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
PJL
Judgement made in
04.03.2025
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