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IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D. Jagadish Chandira, J.
Settu @ Puniameen - Appellant
Versus
The State Represented by Its The Inspector of Police, Mayiladuthurai Police Station – Respondent
Crl.A.Nos.466 & 680 of 2019
Decided On : 01-12-2021
Criminal Procedure Code,1973 - Section 313 – Indian Panel Code,1860 - Section 294(b) and 302 I – Offence of Murder – Appeal against conviction – Delay in preferring the complaint, delay in the FIR reaching the court, delay in the statement of PW5 reaching the court, non-examination of the first Ambulance driver, non-examination of independent witnesses in the locality, suppression of best evidence, infirmities in the ocular evidence vis-a-vis medical evidence makes the case of the prosecution highly doubtful and improbable -prosecution has not proved its case beyond all reasonable doubts and the accused are entitled to benefit of doubt. Para 35.
Finding of the Court:
In this case P.Ws.1 and 5 were said to be ocular witnesses - It is case of PW1 that deceased had called him to attend a party hosted by his friends and that they had gone to Bar - It is also specific case of PW1 that he and deceased were not drunk - He had further deposed that accused had attacked deceased repeatedly with hands and they had pushed him and he had fallen down and thereafter they had repeatedly stamped him on stomach and private parts - Of course though such a version of PW1 is corroborated by PW5 statement of PW5 has reached court after five months and delay in giving complaint to police and thereafter complaint reaching jurisdictional Magistrate has not been properly explained by prosecution thereby creating a doubt with regard to prosecution case - Admittedly in this case best evidence viz. presence of CCTV cameras and footages have been suppressed by Prosecution.
Result: Criminal Appeals stand allowed.
JUDGMENT :
Challenging the judgment of conviction and sentence in Session Case No.101 of 2013 on the file of the Sessions Court, Nagapattinam dated 12.07.2019, A2 has filed Criminal Appeal No.466 of 2019 and A has filed Criminal Appeal No.680 of 2019.
2. The brief facts of the prosecution is as under:
(ii) Since the deceased Murugan was late, the other three persons had gone inside the bar to consume liquor. At that time, a bottle had fallen from the table of PW2 and it had gone near the table where the accused were sitting. The accused had pushed the bottle towards the table of PW2. PW2 and PW3 and the said Nissar Ahamed, finding that time was not conducive, in order to avoid trouble, had settled the account and had gone out. The accused had followed them outside the shop and had quarreled with them. At that time, the deceased Murugan and PW1 had come to attend the party and by then, it was 4.00 p.m. and the deceased had got down from the bike and questioned them as to what was the matter and thereafter, he had pacified both the parties and sent PW2 and PW3 to their places and other persons had also gone to their village.
(iii) Whileso, the first accused had scolded Murugan saying OTHER LANGUAGE, and saying so, he fisted on chest and back of the deceased repeatedly with hands. The second accused had also beat the deceased repeatedly over his body and on the back side, due to which, the deceased fell down with knee on the floor. At that time, the accused had stamped on the deceased stomach and on his private part and it was seen by PW5, the salesman in the Tasmac Bar. The deceased, Murugan had fallen down and become unconscious and thereafter, PW1 had called 108 Ambulance and at about 4.30 p.m., he had also called PW4-Muthukumar, the brother of the deceased and informed him that two persons had assaulted his brother and that he was lying unconscious.
(iv) PW4 had rushed to that place. Thereafter, 108 ambulance had arrived and the Assistants in the ambulance, after examining the said Murugan, declared that he was dead and they had refused to take him in the ambulance. Thereafter, PW4 had called another ambulance and they had taken the victim Murugan to the Government Hospital, where, the Doctor, who examined, having found that the victim was dead directed to keep the body in the mortuary. Thereafter, on the advice of the villagers, PW1 had requested one Murugesan to write the complaint and the complaint was given to the respondent Police. The complaint is Ex.P1.
(v) On the same day, at 22 hours, PW13, the Sub Inspector of Police in the respondent police station, received the complaint, Ex.P1 and registered the case in Crime No.941 of 2012 and filed an F.I.R, Ex.P5 for the offence under Section 302 IPC and thereafter, she had sent the FIR to the Judicial Magistrate I, Mayiladuthurai and sent the copies of the same to the Inspector of Police through PW10, Gunasekaran, Head Constable.
(vi) PW14, Inspector of Police, who was having additional charge of Mayiladuthurai Police Station, received the FIR from PW13 and next day at 5.30 a.m., he went to the place of occurrence and prepared Observation Mahazar, Ex.P2 and rough sketch, Ex.P6 in the presence of PW6 Kaliyamurthi and one Senthil. Thereafter, PW14 had gone to Mayiladuthurai Mortuary and conducted inquest in the presence of witnesses. The inquest report is Ex.P7. Thereafter, he sent a request to the Government Doctor, PW8 to conduct post mortem. PW8, Dr.Baskaran had performed the post mortem and gave his opinion stating that the deceased would appear to have died of shock and haemorrage due to head injury and multiple injuries. The p
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