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2019 Supreme(Mad) 1455
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SATHYANARAYANAN, M. NIRMAL KUMAR, JJ.
Jayakumar - Appellant
Versus
The State - Respondent
Criminal Appeal No. 769 of 2017 and Crl. M.P. No. 14205 of 2018
Decided On : 15-03-2019
Advocate Appeared:
For the Appellant : T. Muruganantham
For the Respondents: R. Prathapkumar, Additional Public Prosecutor
Headnote:
Criminal Procedure Code,1973 - Sections 161(3),164,207,313(1)(b) and 428 - Indian Penal Code,1860 - Sections 302,307,394 and 397 - Attempt to Murder - Offence OF Murder - Supply to accused of copy of police report and other documents - Deceased namely is junior father of namely and they belong to Tiruvannamalai District - Deceased -Thangadurai and one Kumar proceeded to Kuniyamuthoor at Coimbatore for purpose of unloading household articles which were taken in a lorry and accordingly they have unloaded same - Since lorry owner took lorry for some other purpose all four of them consumed liquor in a Government run liquor shop at Gandhipuram and kept balance liquor in a Pepsi bottle and proceeded to Salem in a State owned Transport Corporation Bus bearing During course of travel they continued to consumer liquor and therefore conductor of bus namely Arumugam who was not examined asked them to de-board from bus in next bus stop - Deceased and alone de-boarded from bus and however two others proceeded with travel - Deceased once again started consuming liquor in a TASMAC shop at Nathampalayam which falls within jurisdictional limits of Avinashi Police Station - At that time appellant/accused who was employed in said shop came and asked them to purchase Brandy and developed wordy altercation with deceased and he also pestered deceased to part with money for that purpose - When it was refused appellant/accused for purpose of murdering Vijayan/deceased took a Wooden on stop and hit him on rear side of his head - When attempted to prevent same appellant/accused repeatedly attacked him also with wooden log repeatedly on his face and mouth - Appellant/accused in that process had taken away a Black Colour Nokia Cellphone worth about and also took cash found in pocket of deceased - Appellant/accused ran away from scene of occurrence by throwing wooden log - Cloth worn by appellant/accused was tainted with blood - Deceased/junior father of became unconscious and persons who are present sent them to Avinashi Government Hospital in ambulance along with and during course of travel Vijayan/deceased breathed his last - Thereafter was referred to Government Medical College Hospital Coimbatore for further treatment - Special Sub-Inspector of Police Avinashi Police Station on receipt of intimation went to Hospital at and recorded a statement from marked as based on which registered a case in Crime for offences under Sections 302 and 307 I.P.C.- F.I.R. was marked - Held, It is also to be noted at this juncture that though in stated that appellant/accused has disclosed his identity did not state so in chief examination and straight away disclosed name of appellant/accused - PW1 as well as his junior father Vijayan/deceased were stranger to place of occurrence for reason that occurrence took place within jurisdictional limits of Avinashi Police Station and whereas and deceased hail from Thiruvannamalai District and they went to Kuniyamuthoor Coimbatore for unloading household articles - Investigating Officer would also admit that he did not conduct Test Identification Parade and therefore it remains a mystery as to how was able to know name of appellant/accused - Prosecution would submit that testimony of is amply corroborated by testimonies of who are employees of TASMAC and their evidence would disclose that appellant was proceeding to dark side and they raised alarm and when they went near a tamarind tree appellant/accused was carrying a wooden log - Neither identified wooden log marked as and that apart occurrence took place at night hours between and therefore it is really doubtful and even from testimonies of they did not see alleged attack by appellant/accused on head of deceased/Vijayan - Therefore this Court is of considered view that in light of grievous injury sustained it would not have been possible for to give such a lengthy statement to which led to registration of F.I.R marked - Prosecution has failed to offer any plausible explanation through testimonies of witnesses and documents marked to said infirmities and therefore a grave doubt has been created as to genesis and origin of occurrence - In considered opinion of Court Trial Court has failed to advert to said infirmities - Criminal Appeal Allowed
JUDGMENT :
M. Sathyanarayanan, J.
1. The appellant is the sole accused in S.C. No. 83 of 2016 on the file of the II Additional Judge, District and Sessions Court, Tiruppur and he stood charged, tried and convicted as under, vide impugned judgment dated 31.10.2017:
Accused Nos. Conviction Under Sections Sentence of Imprisonment
Sole Accused 302 I.P.C. Life Imprisonment with a Fine of Rs. 1,000/-, in default to undergo 1 year Rigorous Imprisonment
307 I.P.C. 10 years Rigorous Imprisonment with a fine of Rs. 1,000/- in default to undergo 6 months Rigorous Imprisonment
397 I.P.C. 7 years Rigorous Imprisonment with a fine of Rs. 1,000/- in default to undergo 6 months Rigorous Imprisonment.
The sentences were ordered to run concurrently and set-off was granted to the accused under Section 428 Cr.P.C. The appellant/sole accused, aggrieved by the impugned judgment of conviction and sentence passed by the Trial Court, came forward with this Criminal Appeal.
2. Facts leading to the filing of this Criminal Appeal, relevant for the purpose of disposal of this case, briefly narrated are as follows:
2.1. The deceased, namely Vijayan is the junior father of PW1, namely Senthil Kumar and they belong to Tiruvannamalai District. On 30.11.2015, the deceased, PW1, PW3-Thangadurai and one Kumar proceeded to Kuniyamuthoor at Coimbatore for the purpose of unloading household articles, which were taken in a lorry and accordingly, they have unloaded the same. Since the lorry owner took the lorry for some other purpose, all the four of them consumed liquor in a Government run liquor shop (TASMAC) at Gandhipuram and kept the balance liquor in a Pepsi bottle and proceeded to Salem in a State owned Transport Corporation Bus bearing Reg. No. TN38-N-2913.
2.2. During the course of travel, they continued to consumer liquor and therefore, the conductor of the bus, namely Arumugam, who was not examined, asked them to de-board from the bus in the next bus stop. The deceased and PW1 alone de-boarded from the bus and however, two others proceeded with the travel. PW1 and the deceased once again started consuming liquor in a TASMAC shop at Nathampalayam, which falls within the jurisdictional limits of Avinashi Police Station.
2.3. At that time, the appellant/accused, who was employed in the said shop, came and asked them to purchase Brandy and developed wordy altercation with the deceased and he also pestered the deceased to part with money for that purpose. When it was refused, the appellant/accused for the purpose of murdering Vijayan/deceased, took a Wooden Log-M.O. 1 on the stop and hit him on the rear side of his head. When PW1 attempted to prevent the same, the appellant/accused repeatedly attacked him also with wooden log repeatedly on his face and mouth. The appellant/accused, in that process, had taken away a Black Colour Nokia Cellphone-M.O. 4, worth about Rs. 1,000/- and also took cash of Rs. 90/- found in the pocket of the deceased.
2.4. The appellant/accused ran away from the scene of occurrence by throwing the wooden log-M.O. 1. The cloth worn by the appellant/accused was tainted with blood. The deceased/junior father of PW1 became unconscious and the persons, who are present, sent them to Avinashi Government Hospital in 108' ambulance along with PW1 and during the course of travel, Vijayan/deceased breathed his last. Thereafter, PW1 was referred to Government Medical College Hospital, Coimbatore for further treatment.
2.5. PW9-Special Sub-Inspector of Police, Avinashi Police Station, on receipt of the intimation, went to the Hospital at 12.05 a.m. on 01.02.2015 and recorded a statement from PW1, marked as Ex. P1, based on which registered a case in Crime No. 856/2015 for the offences under Sections 302 and 307 I.P.C. at 10.30 a.m. The F.I.R. was marked as Ex. P9.
2.6. PW14, who was the Inspector of Police, Avinashi Police Station, on receipt of the F.I.R., took up the investigation and proceeded to the scene of occurrence on 01.12.2015 and the place was identif
