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2019 Supreme(Mad) 2806
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
S. Vaidyanathan, N. Anand Venkatesh, JJ.
Samuthravel and Ors. - Appellants
Vs.
The State - Respondent
Crl. A. (MD) No. 403 of 2017
Decided On : 20-09-2019
For the Appellant : V. Kathirvelu, Senior Counsel for K. Prabhu
For the Respondents: M. Chandrasekaran, Additional Public Prosecutor
Headnote:
Indian Penal Code,1860 - Section 302 – Criminal Procedure Code,1973 - Section 313(1)(b) – FIR – Investigation - Kumar is well known both of them were friends and used to go for fishing together there was a quarrel that arose between in front of tea shop belonging to deceased is said to have intervened and tried to pacify the parties - This is said to have enraged and therefore there was a motive to do away with deceased when mother of the deceased were walking North Street and were nearing house of all accused persons are said to have wrongfully restrained them and abused deceased in filthy language and started attacking him with and stick as a result of which deceased sustained grievous injuries also sustained simple injuries and deceased died on the spot –Held, Case medical evidence is not borne out by ocular evidence and is variance with ocular evidence and it not possible to relate injuries as spoken to non-explanation many injuries found in body deceased version of the prosecution regarding incident - Case and in exercise of its power Section recalled and re-examined in order to elucidate fact as to time at which occurrence took place and whether light was available in place of occurrence - This exercise looks very artificial since Court was virtually trying to fill up lacuna in the case of the prosecution Court below did not stop with that - Court again recalled and for first time marked hatchet that said to have been used attack the deceased case - Even weapon that was used was not marked before Court and after judgment was reserved Court recalled and marked weapon and recalled witnesses and asked them questions regarding injury caused with weapon - This exercise was done by Court below after case was reserved for judgment - This is one more important factor that should be taken into consideration by this Court in present case Court finds that there are too many discrepancies in this case and unfortunately same has not been taken note of by trial Court - Even though motive is not a relevant factor in a case where there is clear evidence of an eyewitness motive assumes significance in this case since the version given by the so-called eyewitnesses is unbelievable and cannot be relied upon and deceased remained to be close friends till previous day of date of occurrence and were going for fishing together and there was no previous enmity and therefore it defies natural human conduct as understood by a prudent man under given circumstances as why resort to attacking deceased indiscriminately and cause his death - In considered view of this Court prosecution has not proved case beyond reasonable doubts against the accused persons - Appeal allowed
JUDGMENT :
S. Vaidyanathan, N. Anand Venkatesh, JJ.
1. This Criminal Appeal has been filed by the appellants, who were ranked as A1 and A3, aggrieved by the Judgment passed by the learned III-Additional Sessions Judge, Tirunelveli, in S.C. No. 105 of 2015, convicting and sentencing the accused persons as follows:
| Sl. No. | Rank of the accused | Offence under which convicted | Sentence of imprisonment | Fine amount |
| 1. | A1 | Under Section 302 of IPC | Life imprisonment | Rs. 2,000/-, in default, to undergo six months Rigorous Imprisonment |
| 2. | A3 | Under Section 302 of IPC | Life imprisonment | Rs. 2,000/-, in default, to undergo six months Rigorous Imprisonment |
2. The case of the prosecution:
A1 and A3 are brothers and A2 and the juvenile accused are the sons of A1. The deceased Kumar is well known to A1 and both of them were friends and used to go for fishing together. On 03.06.2012, there was a quarrel that arose between A1 and one Mariappan (P.W. 2), in front of the tea shop belonging to A1. The deceased is said to have intervened and tried to pacify the parties. This is said to have enraged A1 and therefore, there was a motive to do away with the deceased. On 04.06.2012, at about 8.30 p.m., when Lakshmi (P.W. 1), mother of the deceased, Mariappan (P.W. 2) and the deceased were walking at Thirupani Karisal Kulam North, Mupidathy Amman Kovil Street and were nearing the house of A1, all the accused persons are said to have wrongfully restrained them and abused the deceased in filthy language and started attacking him with Aruval and stick, as a result of which the deceased sustained grievous injuries and P.W. 1 also sustained simple injuries and the deceased died on the spot.
Complaint and evidence collected in the course of investigation:
2.1. P.W. 1 gave a complaint (Ex. P. 1) to the Special Sub Inspector of Police (P.W. 14) on 04.06.2012 at about 9.15 p.m., and based on the compliant, an FIR (Ex. P. 6) came to be registered against the accused person in Crime No. 456 of 2012 for the offence under Sections 341, 294 (b), 323, 302 and 506 (ii) of I.P.C. An express FIR was sent to the learned Judicial Magistrate No. V, Tirunelveli, through P.W. 16 and it reached the Court on 05.06.2012 at about 3.20 a.m.
2.2. The investigation was taken up by the Inspector of Police (P.W. 20) and he reached the place of occurrence around 10.15 p.m., and he prepared the observation mahazer (Ex. P. 13) and rough sketch (Ex. P. 12) in the presence of witnesses (P.W. 5 and P.W. 6). He conducted the inquest over the body of the deceased and prepared the inquest report (Ex. P. 14) and handed over the body of the deceased to the Head Constable (P.W. 13) for postmortem and for handing over the body to the relatives. He also sent a requisition for conducting the postmortem (Ex. P. 18). He proceeded to recover material objects from the scene of crime and the spot mahazer (Ex. P. 15 to Ex. P. 17).
2.3. The Investigating Officer recorded the statements of the witnesses and proceeded to arrest A1 and A3 on 05.06.2012 at about 2.00 p.m., and based on the confession, recovered the hatchet (M.O. 6). The material objects (M.O. 1 to M.O. 6) were sent to the Court under Form 95.
2.4. The Investigating Officer, thereafter examined the postmortem Doctor and collected the postmortem report (Ex. P. 14) and also examined P.W. 17 and collected the viscera report (Ex. P. 8), Serological Report (Ex. P. 9) and Biological report (Ex. P. 10).
2.5. The said Investigating Officer handed over the entire case file to P.W. 22, who continued with the investigation and laid the final report before the concerned Court.
3. After the case was committed to the III-Additional District Judge, Tirunelveli, charges were framed against the accused persons for the offences under Sections 341, 294 (b), 323, 302 and 506 (ii) of I.P.C. The pro
