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2018 Supreme(Mad) 2843
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Arul & Another – Appellants
Versus
The State Represented by, Inspector of Police, Dharmapuri – Respondent
Criminal Appeal No. 309 of 2011
Decided On : 20-11-2018
For the Appellant : M.G. Udhayasankar, M/s. S. Shanthakumari.
For the Respondent: T.P. Savitha.
Headnote:
Indian Penal Code, 1860 - Sections 307 - Sections 326 r/w 34, 302 r/w 34, and 352 - Section 162 - Section 302 – Murder Offence – Appeal Against Conviction - Appellants and accused No. 3 in above crime number who happened to be brothers with common intention of causing hurt to defacto complainant and his family attacked defacto complainant and his family - Out of said attack defacto complainant family suffered injuries - Defacto complainant’s son sustained severe head injury and died - According to defacto complainant head injury causing Senthil Kumar’s death was out of a blow from A2 by an iron spade - Out of investigation over defacto complaint’s statement F.I.R. in Crime came to be registered as against accused - In meantime, T. Senthil Kumar died – Held, Prosecution has suppressed genesis and origin of occurrence and thus has not presented true version - In this context it would be relevant to look into decision of Hon’ble Apex Court made in (2008) 2 SCC Criminal 727 in Baburam and others Vs. State of Punjab, wherein conviction under Section 302 on appellant therein was set aside on ground that prosecution has suppressed genesis and origin of occurrence and has thus have not presented true version in a case pertaining to a case and counter case - In view of forgoing reasons and above legal preposition conviction on appellants is found to be infirm - Accordingly convictions on the appellants are found to be unsustainable under law - It is equally important to state that prosecution witnesses 1 to 3 contradicted each - Trial Court has also not given proper audience to defense side on par with prosecution evidence - In view of reasons supra, Impugned Judgment is set aside and 1st Appellant is acquitted from Criminal Charge and 2nd Appellant also shall stand acquitted from charges – Appeal Disposed Of.
1. This Appeal is being directed against the Judgment of conviction sentencing the appellants’ for offences punishable under Sections 326 and 307 of IPC, to undergo Rigorous Imprisonment for a period of 7 years and also to pay a fine of Rs. 1000/- in default to undergo Six months Simple Imprisonment, for offence under section 352 of IPC ordered to pay a fine of Rs. 500/- in default to undergo two weeks Simple Imprisonment. The present appeal is filed by the accused 1 and 2 in S.C. No. 29 of 2010. The 3rd accused in the above appeal is acquitted from all the charges.
2. According to prosecution case there was previous enmity between the families of the appellants/accused herein and defacto complainant. The said enmity arose out of pathway dispute.
3. The appellants and accused No. 3 in the above crime number who happened to be brothers with common intention of causing hurt to defacto complainant and his family on 06.10.2004 attacked the defacto complainant and his family.
4. Out of said attack the defacto complainant family suffered injuries. Defacto complainant’s son namely Senthil Kumar sustained severe head injury and died on 23.04.2005.
5. According to defacto complainant the head injury causing Senthil Kumar’s death was out of a blow from A2 by an iron spade. Out of investigation over the defacto complaint’s statement made under Section 161(3) of Cr.P.C. the F.I.R. in Crime No. 803 of 2004 dated 06.10.2004 came to be registered under Sections 341, 324, 323, and 506 (ii) of IPC as against the accused.
6. In the meantime, T. Senthil Kumar died on 23.04.2005 was hospitalized in National Institute of Mental Health and Nero Science Hospital, Bangalore.
7. Accordingly Charges came to be laid under Sections 326, 302 r/w 34, 352 r/w 34 of I.P.C. against the 1st Accused namely Arul and Sections 302, 326 r/w 34, 352 r/w 34 of I.P.C. against the 2nd Accused namely Ilango and Sections 326 r/w 34, 302 r/w 34, and 352 of I.P.C. against the 3rd Accused Kumaran.
8. To establish Charges of causing Grievous hurt with a deadly weapon under Section 326, Assault under Section 352 of I.P.C. and Murder with common intention, prosecution examined 15 witnesses and marked 15 Exhibits, and M.O-1, M.O-2, the spade and stick said to have involved in the offence were produced.
9. Defending the prosecution version on the side of appellant one Ilango was examined as DW-1 and Exs-D1 to D5 were marked. That apart the Court Exhibits in Ex-C-1 the Statement given by the 2nd appellant under Section 162 of I.P.C. and Ex-C2, FIR in Crime No. 803 of 2004 were marked.
10. On appraisal of Oral and Documentary evidence Trial Court found that there is no offence made out under Section 302 of IPC and Common Intention established under Section 34 of IPC.
11. In as much as the offence of Murder, the trial Court found that the said offence cannot be attributed against the appellants as the records disclosed that though the alleged occurrence said to have taken place on 06.10.2004, the deceased after about 6 months died on 23.04.2005. It is relevant to note here that no treatment records and pertaining details furnished before the Court below.
12. It was further found that victim Selvakumar was treated and discharged by Dr. Sankar PW-4 much prior to his demise and as well prior to his hospitalization in Bangalore. Therefore holding that in a condition that expecting Autopsy Report of deceased and No medical treatment records produced and that in absence of any specific reason by PW-11 Dr. Rajendraprasad as to specific reason that of death the Trial Court found that the charge punishable under Section 302 of IPC unproved and accordingly acquitted the said charge against the accused. Whereas the trial Court on evaluation of evidence found that the charge under Sections 326 and 352 of IPC proved against A1 and A2 thereby convicted and sentenced the appellants in above terms. The 3rd accused was acquitted of charges against him as unproved.
13. Against the order of conviction
