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2018 Supreme(Mad) 1896
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.M. SUNDRESH, N. SATHISH KUMAR, JJ.
Nagendran S/o Chellappa - Appellant
Vs.
State through The Inspector of Police, Othakadai - Respondent
Criminal Appeal No. 210 of 2016
Decided On : 31-08-2018
Advocate Appeared:
For the Appellant : Mr. R. Alagumani for M/s. Daniel Manoharan
For the Respondent: Mr. R. Anandharaj
Headnote:
Indian Penal Code,1860 Sections 342 , 302 ,34,149 and 23 – Criminal Procedure Code,1973 - Section 313,33,38 and 37 - Juvenile in conflict with law, is a friend of the appellant/accused - Deceased along with P.Ws.1 to 3, who are his father, mother and wife, were sitting on the door footsteps of their house - There was a power cut and thus, an emergency light was used - At that time, in a drunken mood was driving a bike and fell into a nearby ditch - He was taken out by the deceased and P.Ws.1 to 3. Thereafter, he picked up a quarrel with them when the deceased and P.Ws.1 to 3 removed the bike key - At that time, the owner of the bike, one came and took the bike key by apologising that such incident would not occur in future - Even thereafter, quarreling with the deceased - He threatened deceased to do away with him and then left - Four of the friends of the deceased came and they made enquiries and the incident was explained to them - At that point of time, both the appellant came and shouted - Appellant caught hold of the deceased while stabbed the deceased on his stomach - Thereafter, both of them ran away leaving M.O.1-blood stained knife on the spot - There was no strained relationship between the deceased P.Ws.1 to 3 on the one hand and the appellant on the other - This evidence falsifies the evidence of P.Ws.1 to 3 and P.W.11 – Held, Trial Court has merely relied upon the evidence of P.Ws.1 to 3, 7 and 11 without considering the various aspects discussed - It has also not considered the scope and ambit of Section 34 of IPC insofar as the existence of the common intention is concerne- Even as per the evidence of P.W.2, the evidence of P.W.4 has not been taken into consideration by the trial Court - Based upon the investigation made, a Final Report was filed under Sections 342 and 302 read with 34 of IPC before the Judicial Magistratein - It was accordingly committed to the Principal Sessions Court, and taken as S.C.No.307 - Before the trial Court, prosecution examined -Court are dealing with a case, where there was a prior incident which was discussed by the deceased, P.Ws.1 to 3 along with the friends of the deceased at the time of the occurrence - There is absolutely no material available to implicate the appellant within the ambit of Section 34 of IPC and even, if there is any, the same is not proved in accordance with law - Thus, Court are not able to concur with the decision of the learned trial Judge - In the result, the conviction and sentence imposed on the appellant/accused vide judgment in Sessions Case No.307 on the file of the Principal Sessions Judge, are set aside, and the criminal appeal is allowed - The appellant/accused is acquitted of the charges under Sections 342, 302 read with 34 of IPC and the fine amount if any paid, shall be refunded to him - The appellant/accused is directed to be released forthwith, unless his custody is required in connection with any other case – Order Accordingly.
M.M. Sundresh, J.
The accused in S.C.No.307 of 2013 on the file of Principal District and Sessions Court, Madurai, charged for the offences punishable under Sections 342 and 302 read with 34 of Indian Penal Code and thereafter, convicted and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.500/- in default to undergo rigorous imprisonment for three months under Section 342 of IPC and also sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- in default to undergo R.I for six months under Section 302 read with 34 of IPC, is the appellant before us.
2. Prosecution case in a nutshell:
2.1. Karthik, a juvenile in conflict with law, is a friend of the appellant/accused. On 26.10.2011, which was a Deepavali day, at about 9.00 p.m., the deceased Senthilmurugan along with P.Ws.1 to 3, who are his father, mother and wife, were sitting on the door footsteps of their house. There was a power cut and thus, an emergency light was used. At that time, Karthik in a drunken mood was driving a bike bearing Registration No.TN-59-AS 4754 and fell into a nearby ditch. He was taken out by the deceased and P.Ws.1 to 3. Thereafter, he picked up a quarrel with them when the deceased and P.Ws.1 to 3 removed the bike key. At that time, the owner of the bike, one Santhanabharathi came and took the bike key by apologising that such incident would not occur in future. Even thereafter, Karthik was quarreling with the deceased and P.Ws.1 to 3. He threatened the deceased to do away with him and then left. Four of the friends of the deceased came and they made enquiries and the incident was explained to them. At that point of time, both the appellant and Karthik came and shouted. The appellant caught hold of the deceased while Karthik stabbed the deceased on his stomach. Thereafter, both of them ran away leaving M.O.1-blood stained knife on the spot.
2.2. The deceased was taken in a share auto to the Government Hospital, Madurai at about 10.15 p.m., which was the time of occurrence. The deceased was brought to the hospital at 11.00 p.m., wherein the Doctor, on examination, declared him dead. Thereafter, P.W.1 and Kathiravan, who were the friends of the deceased and who were also present in the place of occurrence went to Othakadai police station at 00.45 a.m., on 27.10.2011 and lodged a complaint-Ex.P1. P.W.9, who is the Sub Inspector of Police, registered the complaint in Crime No.514 of 2011 under Sections 342 and 302 IPC under Ex.P7-First Information Report. P.W.13-Inspector of police went to the spot and prepared Ex.P2-Observation Mahazar and Ex.P10-rough sketch. Later, he seized blood stained cement floor M.O.2, sample floor M.O.3 and M.O.1 knife under Ex.P3-seizure mahazar. Thereafter, he prepared Ex.P11-inquest report and sent the seized objects through Form 95 to the Court. He has also sent the dead body to the Government Hospital, Madurai for post mortem along with requisition through police constable. P.W.13 arrested Karthik and appellant at about 5.30 p.m. The confession statement given by Karthik was recorded and Ex.P4 is the admissible portion in the confession of the juvenile in conflict with law. Ex.P13 is the requisition to send the viscera for examination and Ex.P15 is the Viscera Report. The Chemical examination Report and Serologist Report were marked as Exs.P18 and P19 respectively.
2.3. Based upon the investigation made, a Final Report was filed on 27.04.2012 under Sections 342 and 302 read with 34 of IPC before the Judicial Magistrate, Melur in P.R.C.No.24 of 2012. It was accordingly committed to the Principal Sessions Court, Madurai, and taken as S.C.No.307 of 2013.
2.4. Before the trial Court, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P19 along with M.Os.1 to 8. As Karthik was juvenile in conflict with law, the appellant was proceeded separately.
2.5. P.Ws.1 to 3 are the eye witnesses. P.W.4 was the owner of the M.O.1-knife. He turned hostile by denying M.O.1 as that of h
