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Before the Madurai Bench of Madras High Court
S. RAJESWARAN & T. MATHIVANAN, JJ.
David Stephen
Versus
State Represented By The Deputy Superintendent of Police, Cheranmahadevi, Tirunelveli & Another
Criminal Appeal (MD) No.374 of 2008
Decided on: 25-08-2014
SC/ST (POA) Act, 1989 - Section 3(2)(v) – Indian Penal Code - Section 302 r/w 34 – Criminal Procedure Code - Section 374 (2) – Offence of murder - Imprisonment for life – Appeal against conviction - Challenging illegality of order of conviction and sentence appellant being first accused in Sessions case on file of Judicial Magistrate and on file has preferred this appeal before this Court after invoking provisions of Section 374 (2) Criminal Procedure Code - It appears from records that second accused in above said case was absent for a long time and since he had been absconding a non bail able warrant was issued and same has also been pending for a long time - Case against second accused was split up separately and assigned on file of II Additional Sessions Judge - Main case was tried as against first accused who is appellant herein and ultimately ended in conviction as afore stated – Held, In absence of any such evidence it cannot be construed or imagined that mere suggestion put by defense has been proved - Ex.D1 is first information report relating case - This first information report appears to have been registered based on a complaint lodged wherein she has stated that one had abused her with filthy languages - Therefore a case was registered under Section 294(b) Indian Penal Code - Ex.D2 is certified copy of Judgment wherein it appears that said Ravi had admitted offence and paid fine amount - In this connection has canvassed that said and his relatives in order to wreak vengeance upon said would have committed criminality and in this connection he has urged that prosecution has miserably failed to prove guilt of appellant/A1 and A2 - Additional Public Prosecutor has adverted to that trial Judge ought to have found all charges proved against appellant/A1 and in this connection he would submit that though unassailable and unimpeachable evidences are available trial Judge had lost sight upon charges under Section 294(b), 449 of Indian Penal Code and Section 3(2)(v) of SC/ST (PA) Act, 1989 - He has also urged that prosecuting agency has brought home guilt against accused beyond all reasonable doubts and that accused shall have to be dealt with according to penal provisions of law - Court have carefully considered relevant circumstances in which occurrence was taken place and closely scrutinized testimonies of prosecution witnesses including documentary evidences - Having been appreciated evidences available on record and on perusal of Judgment of trial Court find that charge under Section 449 Indian Penal Code has been proved by prosecution besides charge under Section 302 r/w 34 Indian Procedure Code - It is established that both accused viz. appellant/A1 and A2 were having common intention to do away with life of deceased and in furtherance of their common intention they had trespassed into premises of deceased and hacked him to death by inflicting cut injuries on his vital part viz. head indiscriminately – Court therefore find that finding of trial Court with regard to non proving of undisturbed - Offence under Section 449 Indian Penal Code is liable to be set aside - In other aspect finding of trial Judge remains - Criminal appeal is dismissed
T. Mathivanan, J.
1. This memorandum of criminal appeal is directed against the order of conviction and sentence dated 27.6.2008 and made in Sessions Case in S.C.No.65 of 2007 on the file of the learned II Additional Sessions Judge, Tirunelveli, convicting the appellant/accused under Section 302 of IPC r/w 34 I.P.C. and sentencing him to suffer imprisonment for life and also to pay a fine of Rs.10,000/- in default to suffer for a further period of two years of simple imprisonment. He was acquitted in respect of the charges under Sections 449 and 294(b) I.P.C., and Section 3(2)(v) of the SC/ST (POA) Act, 1989.
2. Challenging the illegality of the order of conviction and sentence, the appellant being the first accused in the Sessions case in S.C.No.65 of 2007 (P.R.C.No.34 of 2007 on the file of the Judicial Magistrate No.5, Tirunelveli and Cr.No.146 of 2007 on the file of the Munneerpallam Police Station), has preferred this appeal before this Court after invoking the provisions of Section 374 (2) Cr.P.C.
3. It appears from the records that the second accused in the above said case one Jesu Palraj was absent for a long time and since he had been absconding, a non bailable warrant was issued and the same has also been pending for a long time. Therefore, the case against the second accused Jesu Palraj was split up separately and assigned S.C.No.38 of 2008 on the file of the II Additional Sessions Judge, Tirunelveli.
4. The main case in S.C.No.65 of 2007 was tried as against the first accused David Stephen, who is the appellant herein and ultimately ended in conviction as afore stated.
5. The Deputy Superintendent of Police, Cheranmahadevi, had lodged a final report against both the accused, viz., David Stephen and Jesu Palraj alleging that they had committed the offences punishable under Sections 449, 294(b), 302 r/w 34 I.P.C. and Section 3(2)(v) of SC/ST (POA) Act, 1989.
6. The learned II Additional Sessions Judge, based on the materials placed before him, had framed as nearly as four charges, viz., under Sections 449, 294(b), 302 r/w 34 I.P.C., and under Sections 3(2)(v) of SC/ST (PA) Act, 1989 as against both the accused and when the ingredients of the charges were questioned, they pleaded innocence and wanted to face the trial.
7. The prosecution in order to prove their case have totally examined 17 witnesses and during the course of their examination, Exs.P.1 to P.24 were marked and besides this, six material objects were also marked. Apart from this, one court witness C.W.1 was also examined.
The Gravamen of the Prosecution Case:-
8. P.W.1 Packiyaraj is the close associate of the deceased Karnan @ Karunakaran. P.W.2 Sigamani Seelan is the brother-in-law of the deceased, whereas P.W.3 Chellathai is the mother of the deceased. P.W.1 Packiyaraj and P.W.3 Chellathai and the deceased are the residents of Araikulam Village.
9. The appellant/A1 and other accused are also the residents of Araikulam Village and belonged to Christian Nadar Community.
10. The deceased and P.W.2 Sigamani Seelan are belonging to Schedule Caste. The deceased Karnan @ Karunakaran's brother one Mathi Mathew is doing business in Bombay.
11. That on 13.5.2007 for the purpose of construction of a Church a foundation stone was laid, for which, the said Mathi Mathew had donated a sum of Rs.5,00,000/-.
12. By way of expressing gratitude, P.W.1 and the deceased had printed wall-posters and pasted them.
13. Similarly, the accused 1 and 2, who are belonging to Araikulam Nadar Peravai, had also printed separate posters and pasted them.
14. Under these circumstances, the appellant/A1 and A2 had torn the posters pasted by P.W.1 and the deceased. On seeing this, P.W.1 and the deceased had questioned them. For this, the appellant/A1 and A2 had threatened the deceased with dire consequences that they would not leave him without killing. Then P.W.1 and others had pacified them and on account of this reason, the appellant/A1 and A2 had developed a grudge upon the de
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