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IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
S. Nagamuthu and V.S. Ravi, JJ.
Selvam and Ors. – Appellants
Vs.
State – Respondent
Crl. A (MD) No. 234 of 2011
Decided On : 18-08-2015
Constitution of India, 1950 – Article 21 – Penal Code, 1860 – Sections 302, 201, 404, 149, 148, 34 – Order of Conviction – By judgment dated 18.07.2011, the trial Court convicted the accused 1 to 3 under Sections 302 and 201 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 500/- each, in default to undergo rigorous imprisonment for two years, for the offence under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/- each, in default to undergo rigorous imprisonment for one year for the offence under Section 201 IPC. – The trial Court has also convicted the first accused under Section 404 IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/-, in default to undergo rigorous imprisonment for nine months. – However, the trial Court acquitted the accused 4 and 5 from all the charges. – Challenging the said conviction and sentence, the appellants/accused 1 to 3 are before this Court with this appeal. – Held, Court, finds that its hands are tied to convict the first accused for two other murders, because in the absence of appeal, this Court cannot alter the conviction so as to convict the first accused for the other two murders. – Above all, in the absence of appropriate charges for the others two murders, it is not possible in law to convict the first accused for the said murders. This Court could only sustain the conviction for one murder. – Since the accused 4 and 5 have already been acquitted and since they are not before us, it is not possible for this court to interfere with their acquittal also. – Similarly, since the appellants have been acquitted under many other charges, it is not possible for us to interfere with that also. – Court even thought of taking suo motu revision against the judgment of the trial Court to rectify all the above errors. – At this length of time, taking up a revision suo motu, at this stage, issuing notice to the accused and then, remanding the case to the trial Court for altering the charges and for delivering a fresh judgment, in our considered opinion, will not amount to fair trial in terms of Article 21 of the Constitution of India. – In other words, at this length of time, allowing the accused again to face trial will not be fair under Article 21 of the Constitution of India. – Court desist from making any innovation, except sustaining the conviction of the first accused as it has been done by the trial Court.– Criminal Appeal Partly Allowed
S. Nagamuthu, J.
1. The appellants are the accused 1 to 3 in S.C. No. 4 of 2009 on the file of the learned Sessions Judge, Sivagangai. Totally there were five accused in this case. The trial Court framed as many as eight charges against them as detailed below;
| Charge Nos. | Accused | Under the provision of Sections |
| 1. | A1 to A5 | U/s.148 IPC against A1 to A3 U/s.147 IPC against A4 to A5 |
| 2. | A1 to A5 | U/s.449 IPC |
| 3. | A1 to A3 | U/s.302 IPC |
| 4. | A2 | U/s.302, r/w 34 IPC |
| 5. | A4 to A5 | U/s.302 r/w 149 IPC |
| 6. | A1 to A3 | U/s.404 IPC |
| 7. | A4 to A5 | U/s.404 r/w 149 IPC |
| 8. | A1 to A3 | U/s.201 IPC |
By judgment dated 18.07.2011, the trial Court convicted the accused 1 to 3 under Sections 302 and 201 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 500/- each, in default to undergo rigorous imprisonment for two years, for the offence under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/- each, in default to undergo rigorous imprisonment for one year for the offence under Section 201 IPC. The trial Court has also convicted the first accused under Section 404 IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/-, in default to undergo rigorous imprisonment for nine months. However, the trial Court acquitted the accused 4 and 5 from all the charges. Challenging the said conviction and sentence, the appellants/accused 1 to 3 are before this Court with this appeal.
The case of the prosecution in brief is as follows;
(a) There are three deceased in this case viz., one Mr. Rajendran (hereinafter referred to as D1), Lakshmi (hereinafter referred to as D2) and the child, Yuvarani (hereinafter referred to as D3). D1 was the husband of D2 and D3 was their grandchild. D1 and D2 were residing at Pillupatti Village. PW 2 - Mrs. Rajeswari is the daughter of D1 and D2 and the mother of D3. She was residing in the same village, but in a distant place, along with her husband. Her husband and brother were temporarily working in Tiruchirapalli in a tea shop. Thus, at her house, on the date of the occurrence, PW 2 alone was there with the child (D3). By about 5.00 p.m. on 22.08.2007, D1 came to the house of DW 2 and after some time, he expressed his intention to take D3 with him. PW 2 agreed. Accordingly, D1 took the child D3 with him to his house. Around 8.30 p.m. on the same day, PW 2 went to the house of D1. She noticed that D3 was then sleeping. Therefore, D1 told PW 2 not to disturb the child and asked her to come on the next day to take the child with her. Therefore, PW 3 did not take the child with her and she alone returned to her house.
(b) On the next day (23.08.2007), at about 5.00 a.m., PW 2 went to the house of her father with a view to take the child. But, the house was found locked outside. PW 2 believed that D1 and D2 would have gone elsewhere for any marriage taking the child also. Therefore, PW 2 returned to her house. Since, till late evening D1 to D3 did not return, PW 2 called her husband over phone and informed him about the same. The whole night PW 2 had expected that D1 to D3 would return. The next day morning PW 2's husband and her brother came from Tiruchirapalli.
(c) PW 2, her husband and her brother went to the house of D1 and opened the door by force. On entering into the house, they found that D1 to D3 were not available. But, the bureau in the house was kept open, and the jewels and cash kept in the same were found missing. PW 2 and others searched for the deceased. Since they could not succeed, on 26.08.2007, PW 2 went to the Police Station and made a complaint to PW 15.
(d) PW 15, the then Sub Inspector of Police, Thuvaranguruchi Police Station, received the complaint of PW 2 at 9.00 a.m. and registered a case in Crime No. 218 of 2007 for man mi
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