Madras High Court
V. Sakthi Saravanan vs Thangavel on 23 July, 2021
Author: P.N. Prakash
Bench: P.N. Prakash
Crl.A.No.492 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.07.2021
PRONOUNCED ON : 23.07.2021
CORAM:
THE HON’BLE MR. JUSTICE P.N. PRAKASH
and
THE HON’BLE MR. JUSTICE R. PONGIAPPAN
Crl.A. No.492 of 2018
V. Sakthi Saravanan Appellant
vs.
1 Thangavel
2 Mariammal
3 State by
the Inspector of Police
Modakkurichi Police Station
(Cr. No.112 of 2010)
Erode District Respondents
Criminal Appeal filed under the proviso to Section 372 Cr.P.C. seeking to
call for the records and set aside the judgment and order of acquittal dated
14.06.2011 made in S.C. No.124 of 2010 on the file of the Principal Sessions
Court, Erode.
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https://www.mhc.tn.gov.in/judis/
Crl.A.No.492 of 2018
For appellant Mr. A. Sundaravadhanan
For RR 1 & 2 Mr. N. Manokaran
For R3/State Mr. M. Babu Muthu Meeran
Addl. Public Prosecutor
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JUDGMENT
(P.N. PRAKASH, J.) This is an appeal against acquittal.
2 The de facto complainant has preferred this criminal appeal calling into question the legality and validity of the judgment and order dated 14.06.2011 passed in S.C. No.124 of 2010 on the file of the Principal Sessions Court, Chennai, in and by which, the accused, viz., the respondents 1 and 2 herein, were acquitted of all the charges framed against them.
3 The prosecution story line is not something unusual, but, falls in the realm of the run-of-the-mill physical attack cases that happen betwixt neighbours due to boundary disputes, resulting in fatality to one of them.
3.1 The deceased Viswanathan was living with his wife Saraswathi (P.W.2) and their only son Sakthi Saravanan (P.W.1) in the house belonging to 2/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 them in Savadipalayam Pudur Village. Their house faced north. Their family was running a grocery chop named "Meenakshi Stores" which was located right opposite their house. Thangavel (A.1) and Mariammal (A.2) were living on the southern side of Viswanathan's house and both families were sharing a common boundary.
3.2 Viswanathan's family and the accused belong to Vellala Gounder community and are distantly related. Savadipalayam Pudur Village has predominantly people belonging to Gounder community and Vanniyar community.
3.3 It appears that the family of the accused was wanting to demolish the compound wall in the common boundary which was objected to by Viswanathan's family. In order to preempt the family of the accused from demolishing the compound wall, Sakthi Saravanan (P.W.1) filed a suit in O.S. No.581 of 2009 before the District Munsif Court, Erode, against Thangavel (A.1) and obtained an order of temporary injunction on 15.10.2009.
3/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 3.4 While that being so, it is alleged that on 18.10.2009, a quarrel ensued between the two families which ended in a fracas. Hence, on the complaint given by Thangavel (A.1), the Modakkuruchi police registered a case in Cr. No.354 of 2009 against Sakthi Saravanan (P.W.1) and his mother Saraswathi (P.W.2) for the offences under Sections 294(b), 323, 324 and 506(II) IPC and followed it up with a final report in C.C. No.202 of 2010 before the Judicial Magistrate No.3, Erode, in which Saraswathi (P.W.2) pleaded guilty to the charge under Section 294(b) IPC and paid the fine amount imposed by the Court. However, the trial Court proceeded as against Sakthi Saravanan (P.W.1), who, the Additional Public Prosecutor informed us, was eventually acquitted on 14.05.2013. Hence, there was no love lost between the two families and beneath the surface, there was simmering discord.
3.5 While so, on 28.03.2010, around 5.00 p.m., Thangavel (A.1) is said to have quarelled with Viswanathan in front of the latter's shop. The altercation drew the attention of some people, of whom, Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) intervened and mediated between the warring persons and advised them to work out their remedies before the Court where the case was pending.
4/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 3.6 The next day, i.e.. on 29.03.2010, around 8.00 a.m., while Viswanathan and his wife Saraswathi (P.W.2) were in their grocery shop, Thangavel (A.1) and his wife Mariammal (A.2) came to the place armed with a billhook (M.O.1) and picked up a quarrel with them. It is alleged that Thangavel (A.1) attacked Viswanathan with the billhook (M.O.1) and caused injuries to him. When Saraswathi (P.W.2) intervened, she also suffered injuries. Sakthi Saravanan (P.W.1) who was in the house, heard the commotion and when he came out of the house, he witnessed the attack. The attack was also witnessed by Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4). After the attack, the accused couple dropped the bilhook (M.O.1) nearby and ran away. Thangamani Kumararaja (P.W.3) summoned an ambulance in which Viswanathan and Saraswathi (P.W.2) were sent to the hospital accompanied by Samiappan (P.W.4). Thangamani Kumararaja (P.W.3) and Sakthi Saravanan (P.W.1) followed the ambulance in the former's two wheeler. The injured duo was first taken to the Government Hospital, Erode, where, Dr.G.Tamilselvi (P.W.12) examined Viswanathan at 8.50 a.m. and noted in the accident register (Ex.P.14) that Viswanathan, who was conscious and oriented, was brought by Samiappan (P.W.4), a relative and further noted the following injuries:
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https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 "1. Deep incised wound 10 x 2 x 2 cm. on the right frontal and parietal region of the scalp
2. Laceration 5 x 2 x 1 cm. over the right shoulder
3. Laceration 1 x 1 x 1 cm. over the right middle finger on the back."
3.7 Dr. Tamilselvi (P.W.12) examined Saraswathi (P.W.2) at 9.05 a.m. on 29.03.2010 and noted in the accident register (Ex.P.15) that Saraswathi (P.W.2), who was conscious and oriented, was brought by Samiappan (P.W.4) and noted the following injuries:
"1. Deep laceration 15 x 4 x 3 cm. extending from left zygomatic region through the left preauricular region cutting the pinna into two unequal halves exposing the underlying muscles.
2. Laceration 2 x 1 x 1 cm. in the web between thumb and left forefinger."
3.8 Both Viswanathan and Saraswathi (P.W.2) were admitted in the Government Hospital, Erode. However, they got discharged from the hospital against medical advice on the ground of wanting to take treatment in a private hospital. Accordingly, Viswanathan and Saraswathi (P.W.2) got themselves admitted in Kovai Medical Centre Hospital, Erode (for brevity "KMCH"), where they were treated by Dr. N.V. Mohan (P.W.13).
6/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 3.9 On a written complaint (Ex.P.1) given by Sakthi Saravanan (P.W.1), Udraj (P.W.11), Head Constable, registered a case in Modakkuruchi P.S. Cr.No.112 of 2010 on 29.03.2010 at 12.15 noon against Thangavel (A.1) and Mariammal (A.2) for the offence under Section 307 IPC and prepared the printed FIR (Ex.P.13) which reached the jurisdictional Magistrate on the same day, i.e., on 29.03.2010 at 5.00 p.m., as could be seen from the endorsement thereon.
3.10 Investigation of the case was taken over by Sekar (P.W.14), Inspector of Police, who went to the place of occurrence and prepared the observation mahazar (Ex.P.3) and rough sketch (Ex.P.18) in the presence of witnesses Ramaswamy (P.W.5) and Sivashankar (not examined).
3.11 From the place of occurrence, Sekar (P.W.14) recovered the billhook (M.O.1), soil with bloodstain (M.O.3), soil without bloodstain (M.O.4), cement floor scrapping with bloodstain (M.O.5) and cement floor scrapping without bloodstain (M.O.6) in the presence of Ramaswamy (P.W.5) and Sivashankar (not examined).
7/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 3.12 Thereafter, he arrested Thangavel (A.1) and Mariammal (A.2) at 4.30 p.m. on the same day and recorded their confession statements. Based on the disclosure made by Thangavel (A.1), he seized a bloodstained lungi (M.O.7) and a bloodstained half sleeve shirt (M.O.8) and a carry bag (M.O.11) and sent those seized items under Form 95 to the jurisdictional Magistrate. He examined the witnesses on 30.03.2010 and handed over the investigation to Selvam (P.W.15), Inspector of Police, Modakkurichi Police Station. Sakthi Saravanan (P.W.1) handed over the bloodstained shirt (M.O.2) of his father Viswanathan to Selvam (P.W.15) for the purpose of investigation and the same was received in Form 95.
3.13 On 31.03.2010, at 2.30 a.m., Viswanathan succumbed to the injuries in KMCH and the death intimation (Ex.P.16) was issued by the said hospital. On receiving the same, Selvam (P.W.15) altered the case from Section 307 IPC to Sections 302 and 307 IPC and sent the alteration report (Ex.P.20) to the jurisdictional Magistrate.
3.14 Thereafter, he went to KMCH and conducted inquest over the body of Viswanathan and prepared the inquest report (Ex.P.21). Then, he sent the body to the Government Hospital, Erode, for postmortem where Dr.Balasubramaniam 8/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 (P.W.7) conducted autopsy and issued the postmortem certificate (Ex.P.7), wherein, he has opined that Viswanathan would appear to have died 9 to 15 hours prior to autopsy due to shock and haemorrhage caused by injuries.
3.15 The bloodstained clothes of Viswanathan and Thangavel (A.1) were sent through the Judicial Magistrate No.III, Erode, to the Tamil Nadu Forensic Sciences Laboratory where they were subjected to biological, chemical and serological examinations and the reports which are admissible under Section 293 Cr.P.C. were marked as Exs.P.10, 11 and 12 respectively.
3.16 Human blood of AB group was detected in the shirt (M.O.2) that was worn by Viswanathan and human blood of AB group was detected in the shirt (M.O.8) that was allegedly worn by Thangavel (A.1) at the time of occurrence.
3.17 After examining various witnesses and collecting reports of the experts, Selvam (P.W.15) completed the investigation and filed a final report in P.R.C. No.7 of 2010 before the Judicial Magistrate No.III, Erode, against Thangavel (A.1) for the offences under Sections 302, 307 and 506(II) IPC and 9/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 against his wife Mariammal (A.2) for the offences under Sections 302 read with Section 114 and Section 307 read with Section 114 IPC.
3.18 On appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Erode, in S.C.No.124 of 2010 for trial. The trial Court framed charges for the offences under Sections 302, 307 and 506 (II) (2 counts) IPC against Thangavel (A.1) and as against his wife Mariammal (A.2), charges for the offences under Sections 302 read with Section 114 IPC and Section 307 read with Section 114 IPC, were framed.
3.19 When questioned, the accused pleaded not guilty.
3.20 To prove the case, the prosecution examined 15 witnesses and marked 29 exhibits and 11 material objects.
3.21 When the accused were questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against them, they denied the same. 10/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 From the side of the accused, no witness was examined nor was any document marked.
3.22 After hearing either side and considering the evidence on record, the trial Court, vide judgment and order dated 14.06.2011 in S.C.No.124 of 2010, acquitted Thangavel (A.1) and Mariammal (A.2) of all the charges framed against them, aggrieved by which, Sakthi Saravanan (P.W.1) initially filed a criminal revision which was numbered as Crl.R.C. No.240 of 2012 and was later converted as an appeal under the proviso to Section 372 Cr.P.C. and re-numbered as Crl.A. No.492 of 2018.
4 Heard Mr. A. Sundaravadhanan, learned counsel for the appellant/de facto complainant, Mr. N. Manokaran, learned counsel for respondents 1 and 2 and Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor for the third respondent/State.
5 The whole prosecution case hinges on the direct ocular testimonies of Sakthi Saravanan (P.W.1), Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) coupled with the evidence of the injured witness Saraswathi (P.W.2). 11/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 6 The learned counsel for the appellant took us patiently through the evidences of Sakthi Saravanan (P.W.1), Saraswathi (P.W.2), Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) and submitted that in the teeth of such clinching evidences, the judgment and order of the trial Court acquitting the accused by discrediting the evidences of these four accused is bristled with perversity and warrants interference by this Court.
7 Mr. Babu Muthu Meeran, learned Additional Public Prosecutor, supported the stand of the appellant, though for reasons best known, the State had not chosen to prefer an appeal against the acquittal of the accused.
8 Per contra, Mr. N. Manokaran, learned counsel for the accused, strenuously defended the trial Court's findings by placing reliance upon various rulings about which we will discuss later.
9 The Supreme Court's rulings on the law relating to appeals against acquittals are a legion and requires no great expatiation. Suffice it to say that qua appeals against acquittals, the Supreme Court has, in no uncertain terms, held that 12/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 the appellate Court should be loath in interfering with the judgment and order of acquittal since an accused enjoys double presumption of innocence, one during trial and the other after his acquittal. That apart, the trial Court has had the privilege of seeing the demeanour of the witnesses whilst under examination and a finding of acquittal based thereon should not be easily interfered with. Bearing in mind this cardinal rule, we now propose to examine the evidences of the principal witnesses.
10 Sakthi Saravanan (P.W.1) has stated about the boundary dispute between the two families and that he obtained an interim order from the District Munsif Court, Erode, in O.S. No.581 of 2009 on 15.10.2009 injuncting the accused party from demolishing the compound wall, on account of which, a quarrel ensued on 18.10.2009 and subsequently, on 28.03.2010; during the quarrel on 28.03.2010, Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) intervened and asked both sides to abide by the civil Court verdict and not to indulge in a quarrel; on 29.03.2010, while he was in his house, around 8.00 a.m., he heard a commotion outside his house and when he went out to see what it was, he saw Thangavel (A.1) attacking his father (Viswanathan) with a billhook (M.O.1) and Mariammal (A.2) actively instigating him (A.1); further, when his 13/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 mother (P.W.2) intervened, Thangavel (A.1) attacked her also and caused injuries to her; when everyone started shouting, Thangavel (A.1) dropped the billhook (M.O.1) and ran away; Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) also were there; Thangamani Kumararaja (P.W.3) called 108 ambulance and when the ambulance came, his parents were sent along with Samiappan (P.W.4) to the hospital and he followed them in the two wheeler of Thangamani Kumararaja (P.W.3); first, they were taken to the Government Hospital, Erode and from there, they were shifted to KMCH, Erode, for better treatment; thereafter, he (P.W.1) went to the police station and lodged a complaint at 12.15 noon which was marked as Ex.P.1; he handed over his father's bloodstained shirt (M.O.2) on 30.03.2010 to the police; on 31.03.2010, his father died; he identified the billhook (M.O.1) that was used by Thangavel (A.1) to attack his parents.
11 In the cross-examination, he admitted that he belongs to Gounder community and that Thangavel (A.1) was his relative. When he was asked as to whether he had filed a suit against his (P.W.1's) father, he admitted that he had filed a suit for partition earlier. It was suggested to him that his father was a tuberculosis patient and had suffered health problems, which suggestion he denied. In the cross-examination, he specifically stated that the dispute with the 14/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 family of the accused was in connection with the wall on the southern side of their house. He also admitted that in respect of the incident that took place on 18.10.2009, a complaint was given against him by the accused, but, denied the suggestion that he had pleaded guilty to the charges in the criminal Court. He also admitted that he did not mention the presence of Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) in the complaint (Ex.P.1). When it was suggested to him that the house of Samiappan (P.W.4) was about 2 kms. away, he denied the same and stated that it is about 1 km. As regards the other answers given by him, the same will be discussed at the appropriate places.
12 The most important witness in this case is Saraswathi (P.W.2) who was injured in the incident. Therefore, we give below the free English translation of her evidence:
Chief Examination:-
At present, I am residing at Savadipalayam Pudur. I am running a provision store. The deceased Viswanathan in this case is my husband. Witness Sakthi Saravanan is my son. The persons present in the court are the accused in this case. The case is all about a trouble created by two accused on one fine morning in the month of Ippasi last year stating that they would bring down the wall. I restrained them from pulling down the wall, stating that it belongs to us. My son obtained an order from the Court. Even after that, they had demolished the wall. They took their vehicle saying that they won’t spare us, and left. I have given a complaint in the station police. My son, by stating that he won’t spare them, left that place to meet the lawyer.15/48
https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 We approached the lawyer to get bail. Thereafter, they have not raised any dispute and they kept quiet. Thereafter, on a Sunday evening, in the month of Panguni, both the accused entered into an altercation with me and my husband stating “did you obtain order from the court?” They even picked up quarrel with my son. Thangamaniraja and Samiyappan intervened, saying as to why they are shouting like this. “Since a case has been filed in the Court, leave the issue to the decision of the court and had left”. On Monday morning at 8.00 hours, my husband was sitting in front of his shop. I was standing inside the shop. At that time, Thangavelu and Mariyammal using filthy language, like “Kandarozhi paiyane, Thayoli!! hacked my husband on his head saying “did you get orders”. My husband blocked. He hacked him once again. The first cut fell on his head. The second cut fell on the hand and the shoulder. I intervened shouting “Aiyo, aiyo”. My son also came running. Since I also intervened, I sustained a cut on my hand. Mariyammal also said, “Don’t spare her. Hack her too”. Thereafter, I fell down and became unconscious. Then, Samiyappa Gounder, Thangamaniraja had called for ambulance over phone and the ambulance arrived. We were taken to the Government hospital in the ambulance. Samiyappa Gounder also accompanied us. They admitted me in a Government Hospital. Then, my son admitted my husband and me in a private hospital. The Inspector examined me in this regard after 7, 8 days.
Cross- Examination:-
My husband is 69 years old. It is not correct if it is stated that he is already a tuberculosis patient. My husband is A1’s paternal aunt’s son. The south side wall belongs to the accused persons. It is not correct if it is stated that we created unnecessary problem and lodged a complaint against the accused persons. On Sunday, altercation took place between us and the accused persons for about 10 minutes. We did not lodge any complaint with the police station with regard to the problem that arose on Sunday. Saamiappan’s house is situated at a distance of about 20 kilometers from the shop. Advocate Sankar’s house is situated at a little distance from our house. The house is situated to the south of the shop. It is not correct if it is stated that I fainted immediately after the occurrence. My husband did not faint. He was conscious and able to speak. Ambulance arrived in 10 minutes. Saamiappan had only admitted me in the hospital. It is not correct if it is stated that after I was admitted in the hospital, the outpost Police 16/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 there came and enquired me. Within 10 minutes of having been admitted in the Government Hospital, we went to K.M.C.H. Hospital. We were in a conscious state and able to speak, in the Government Hospital. Eight days after having been admitted in the K.M.C.H. hospital, the Police came and enquired me. I was unconscious for 4, 5 days. It is not correct if it is stated that I have not stated in the police enquiry that even after having obtained order from the court, they demolished the wall. It is not correct if it is stated that no damage was caused to the wall. It is not correct if it is stated that no occurrence as narrated by me, had taken place. It is not correct if it is stated that the accused persons had not attacked us. It is not correct if it is stated that there had already been a problem between the Vanniyar community and us with regard to erecting a board. Later, he stated that it is correct. We have not lodged any complaint with regard to the erection of board. It is incorrect to state that, persons belonging to Vanniyar community had attacked me and my husband and due to previous enmity, we have foisted this case against the accused."
We examined the original deposition of Saraswathi (P.W.2), aged 57 years, and found that she is an unlettered person which was obvious from the manner in which she has scribbled her name in Tamil as her signature. We find her testimony to be truthful.
13 Thangamani Kumararaja (P.W.3), in his evidence, has stated that he belongs to Savadipalayam Pudur Village; he works in Sun Bees Biscuit Company; he knows the families of the accused and victim; on 29.03.2010, around 8.00 a.m., Thangavel (A.1) and Mariammal (A.2) were berating loudly in front of Viswanathan's shop in choicy epithets; Thangavel (A.1) pulled Viswanathan by his shirt and attacked him with a billhook on his head and shoulders; at that time, 17/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 Mariammal (A.2) also joined issues; when Viswanathan was attacked, Saraswathi (P.W.2) intervened; he (P.W.3) and Samiappan (P.W.4) came running hollering; Thangavel (A.1) warned him saying that if he (P.W.3) nears him (A.1), he (P.W.3) also will meet the same fate; so, he (P.W.3) got scared and did not go near; however, Thangavel (A.1) dropped the billhook and ran away; he (P.W.3) called 108 ambulance and sent Viswanathan and his wife Saraswathi (P.W.2) along with Samiappan (P.W.4) to the hospital and took Sakthi Saravanan (P.W.1) in his motorbike to the hospital. He has, in his evidence, further stated that on the previous day, when he had gone to Viswanathan's shop for making some purchases, there was a quarrel betwixt the accused duo and Viswanathan and at that time, Samiappan (P.W.4) had also come to the shop and both of them (P.Ws. 3 & 4) advised Thangavel (A.1) not to quarrel and to settle the matter in the Court.
14 In the cross-examination, Thangamani Kumararaja (P.W.3) stated that his house is about 100 ft. away from Viswanathan's house. He also admitted that he belongs to Gounder community and further stated that his working hours are from 9.00 a.m. to 6 p.m. 18/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 15 On the similar lines is the evidence of Samiappan (P.W.4), who had carried the injured Viswanathan and Saraswathi (P.W.2) to the Government Hospital, Erode, in the ambulance after the incident.
16 It was suggested to Sakthi Saravanan (P.W.1), Saraswathi (P.W.2), Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) that the attack on Viswanathan and Saraswathi (P.W.2) was not by Thangavel (A.1) and Mariammal (A.2), but, by persons of Vanniar community on account of previous quarrel in connection with erection of a board that occurred between the Vanniar community people and Viswanathan, which suggestion all the four witnesses denied.
17 After carefully scrutinising the evidences of the aforesaid four witnesses, we find no reasons to disbelieve them at all.
18 Now, we propose to examine the various findings of the trial Court for justifying the judgment and order of acquittal. In paragraph 25 of the judgment and order, the trial Court has rendered a finding that Viswanathan's death was an unnatural one. When we asked Mr. Manokaran as to whether he disputes the factum of death of Viswanathan on 31.03.2010 at 2.30 a.m. as per the 19/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 death summary (Ex.P.16) or that he takes a stand that Viswanathan is still alive and that he may appear any time, he submitted that he does not dispute the factum of Viswanathan's death and further, he does not contend that the death was not a homicide, especially in the light of the suggestion put to the witnesses that Viswanathan was attacked by people belonging to Vanniar community. Except making a general suggestion to the witnesses that Viswanathan was attacked by people belonging to Vanniar community without specifically naming anyone, there is no credible material on record to make this suggestion probable.
19 In paragraph 26 of its judgment and order, the trial Court has given a finding that the prosecution has proved the enmity between the families of the accused and Viswanathan and has also observed that motive is a double-edged weapon and it can be used either way. It is true that motive is a double-edged weapon and it can be used both for and against the accused. But, motive assumes serious significance in a case predicated on circumstantial evidence. As stated above, this is not a case based on circumstantial evidence, but, based on the eyewitness account of three witnesses, coupled with the evidence of the injured witness, viz., Saraswathi (P.W.2).
20/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 20 The trial Court has blown out of proportion the stray statement of Saraswathi (P.W.2), a rustic witness, that the house of Samiappan (P.W.4) is 20 kms. away from their shop. Though it is true that Samiappan (P.W.4) himself has stated that his house is not near Viswanathan's house, yet, the trial Court failed to even examine the preamble portion of the deposition of Samiappan (P.W.4), wherein, it has been clearly stated that he hails from Savadipalayam Pudur Village. It is true that his house was not near Viswanathan's house, but, at the same time, except the stray statement of Saraswathi (P.W.2), there is no other credible material to infer that he was living 20 kms. away. It must be remembered that Viswanathan's family was running a grocery shop and Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) had come there for their regular purchase.
21 The second reason assigned by the trial Court for disbelieving the evidences of Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) is that their presence was not mentioned by Sakthi Saravanan (P.W.1) in the complaint (Ex.P.1). That the presence of Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) is not mentioned in the complaint (Ex.P.1) given by Sakthi Saravanan (P.W.1) is true, but, could that, by itself, lead to the inference that these witnesses 21/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 were not present at the scene of occurrence? Ex.P.1 is the complaint given by Sakthi Saravanan (P.W.1) with regard to the attack that was mounted on his parents and just because, he has not stated about the presence of others in the place of occurrence, it cannot be inferred that Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) were not present at all in and around. The trial Judge failed to note the fact that if Samiappan (P.W.4) had been residing 20 kms. away from the scene of occurrence, it would have been nigh impossible for him to have taken the two injured to the hospital in the ambulance immediately after the incident. Copies of accident registers (Exs.P.14 and P.15) very clearly reveal that the injured duo was brought by Samiappan (P.W.4), a relative. Sakthi Saravanan (P.W.1), Saraswathi (P.W.2), Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) have uniformly stated that it was Samiappan (P.W.4) who had taken the injured duo to the hospital and this stands corroborated by the entries in the copies of accident registers (Exs.P.14 and P.15).
22 As regards the presence of Thangamani Kumararaja (P.W.3) in the place of occurrence, the trial Court has given a specious finding that he would have left for his work and therefore, he would not have been there at 8.00 a.m. on the date of occurrence. Thangamani Kumararaja (P.W.3) has stated in his 22/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 evidence that he works in Sun Bees Biscuit Company and that his working hours are from 9.00 a.m. to 6.00 p.m. The trial Court has calculated the distance to Sun Bees Biscuit Company and has held that Thangamani Kumararaja (P.W.3) would have left for work by 8.00 a.m. itself on the day of occurrence and therefore, he could not have been there at the time of incident. Unfortunately, the trial Court failed to note that Thangamani Kumararaja (P.W.3) was having a motorbike in which he had ferried Sakthi Saravanan (P.W.1) to the hospital after the incident. That apart, the occurrence was at 8.00 a.m. and therefore, the presence of Thangamani Kumararaja (P.W.3) in the village at that time cannot be doubted at all.
23 The trial Court doubted the presence of Sakthi Saravanan (P.W.1) on the ground that he admitted in the cross-examination that he goes daily at 5.00 a.m. to Erode for purchasing vegetables for retail vending in their grocery shop and therefore, even on that fateful day, he would have so gone to the Erode market and would not have returned by 8.00 a.m. This finding, on the face of it, is perverse and opposed to fundamental common sense. It is common knowledge that retail vendors of vegetables will go very early in the morning to the wholesale vegetable market, purchase vegetables and bring them to their shop by 7.00 a.m. 23/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 so that they can cater to the needs of the local customers who will have to begin their day's cooking work and leave for work.
24 Lastly, the presence of Sakthi Saravanan (P.W.1), Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4) has been disbelieved by the trial Court on the ground that they did not do anything to prevent the attack and had Sakthi Saravanan (P.W.1) really been present, he would not have been a mute spectator to the attack mounted by the accused on his parents. This finding, in our opinion, is equally perverse by a conscious misreading of the evidence on record. Sakthi Saravanan (P.W.1) has stated that while he was in the house, he heard a noise outside and when he came out, he saw the accused quarrelling with his father and attacking him. Further, he has very specifically stated in the cross- examination that all were present only for about three minutes, thereby implying that the incident had happened in a trice before it could be averted. Likewise, Thangamani Kumararaja (P.W.3) has also stated in the cross-examination that the entire incident took place in just two or three minutes. He has further stated that during the attack, he ran towards the place shouting and that at that time, Thangavel (A.1) threatened him saying that he (P.W.3) also would meet the same fate if he comes near. At this juncture, it will be apropos to refer to the sagely 24/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 observation of the Supreme Court in Rana Partap and others vs. State of Haryana1:
"6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."
(emphasis supplied) 25 Yet another reason for acquittal which was also advanced by Mr.Manokaran is that all the prime witnesses were close relatives and therefore, in the absence of the examination of independent witnesses, the prosecution story should be considered as untrue. We are unable to endorse this submission. Just because a witness is related to the victim or that the witness belongs to the same caste of the victim, his evidence cannot be evaluated with suspicion. This prejudice which is normally raised by the defence counsel has been dealt with in a 1 (1983) 3 SCC 327 25/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 sagacious manner by Bose, J. in Dalip Singh and others vs. The State of Punjab2 in the following words:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
(emphasis supplied) 26 Though the trial Court has not given any satisfactory reason for disbelieving the evidence Saraswathi (P.W.2), the injured witness, Mr. Manokaran submitted that her presence is suspicious since the police had failed to record her statement in the hospital when she was under treatment and that her statement reached the Court only on 30.04.2010. In support of this contention, he placed reliance on the judgment of the Supreme Court in Bhajan Singh & others vs. State of Haryana3 and Meharaj Singh vs. State of U.P.4 2 AIR 1956 SC 364 3 (2011) 7 SCC 421 4 1994 5 SCC 188 26/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 27 That in Meharaj (supra), the Supreme Court has underscored the importance of lodgment of an FIR promptly in a criminal case, especially in a case involving murder, is true. In that case, a finding was returned by the trial Court that it was a blind murder and only thereafter, the FIR was ante-timed. One can have no two opinions that an FIR, normally being the earliest document, should inspire the confidence of the Court. In the instant case, the incident had taken place at 8.00 a.m. on 29.03.2010 and the victims did not die on the spot, but, they were alive. They were initially carried to the Government Hospital, Erode and were examined by Dr. Tamilselvi (P.W.12) and the injuries were noted in the copies of accident registers (Exs.P.14 and 15). After that, Sakthi Saravanan (P.W.1) had gone to the police station and lodged the complaint (Ex.P.1) based on which, the FIR (Ex.P.13) was registered at 12.15 noon on 29.03.2010 for the offence under Section 307 IPC and not under Section 302 IPC. The FIR so registered had reached the jurisdictional Magistrate on the same day at 5.00 p.m. The FIR was altered to Sections 302 and 307 IPC only on 31.03.2010 after the demise of Viswanathan on that day at 2.30 a.m. Ergo, on the facts of the instant case, we are unable to persuade ourselves to hold that the FIR (Ex.P.13) is a 27/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 concocted document. As a sequel, the judgment in Meharaj (supra) can hardly be of any avail to the accused.
28 Coming to Bhajan Singh (supra) relied on by Mr. Manokaran, it is pertinent to point out that paragraph 36 therein, which reads as under, interestingly supports the case of the prosecution for accepting the evidence of Saraswathi (P.W.2), injured witness:
"36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness.” Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein." (emphasis supplied)
29 The other grievance expressed by Mr. Manokaran is that the statement of Saraswathi (P.W.2) was recorded by the police only on 08.04.2010 and was sent to the Court only on 30.04.2010 and therefore, her evidence deserves outright rejection. Be it noted, the witnesses have no say with regard to recording 28/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 of their statements by the police and forwarding of the same to the Court, inasmuch as, these acts fall exclusively within the province of investigation. For the remissness of the Investigating Officer, the testimony of the injured witness cannot be denied its due credence. At the risk of repetition, in this case, the complaint (Ex.P.1) disclosed the involvement of the accused in the attack and that had reached the jurisdictional Magistrate on the same day of occurrence at 5.00 p.m. and in the FIR, in column 7, the names of the two accused find a place.
30 Mr. Manokaran contended that the complaint (Ex.P.1) that was given by Sakthi Saravanan (P.W.1) is hit by Section 162 Cr.P.C., inasmuch as, Samiappan (P.W.4), in the cross-examination, has stated that while he was in the hospital, the police examined him and recorded his statement and therefore, the statement of Samiappan (P.W.4) that was allegedly recorded by the police should have been treated as the FIR and not the complaint (Ex.P.1) otherwise given by Sakthi Saravanan (P.W.1).
31 To appreciate the aforesaid contention, we carefully perused the evidences of three witnesses, viz., Sakthi Saravanan (P.W.1), Thangamani Kumararaja (P.W.3) and Samiappan (P.W.4). Sakthi Saravanan (P.W.1), in the 29/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 cross-examination, has clearly stated that after his father Viswanathan was admitted in the hospital, he did not go to the police outpost in the Government Hospital, Erode, to lodge a complaint nor did he make any attempt to give a complaint over phone. He has also stated that he does not know that the hospital authorities had intimated the police about the medico-legal case. To a specific poser, he has stated that only at 7.00 p.m., the police from Modakkurichi Police Station came to the Government Hospital, Erode. Thus, from his evidence, it is perspicuous that he had gone and given the complaint (Ex.P.1) at 12.15 in the afternoon and only after the FIR was registered, the Modakkuruchi police came to the hospital at 7.00 p.m. 32 Thangamani Kumararaja (P.W.3) has not stated anything as to when the police came to the hospital for enquiry. However, Samiappan (P.W.4) has stated that the police came to the hospital at 9.00 a.m. and made enquiries; he told them and they recorded it; they asked for details and that he gave them; they wrote down. He has not stated that he had signed any statement. He has been asked a question “Do you sign?”, for which, he has stated “I will sign” (ehd; ifbaGj;Jg; nghLntd;). This stray answer has been misread to infer that the police came to the hospital at 9.00 a.m., recorded the statement from Samiappan 30/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 (P.W.4) and he signed it. Samiappan (P.W.4) has not stated that Modakkuruchi police came to the hospital. It is possible that on the intimation by the hospital authorities, the local outpost police would have come to collect the details for sending information to the jurisdictional police about the admission of two persons in connection with a medico-legal case. Therefore, the stray statement of Samiappan (P.W.4) “ehd; ifbaGj;Jg; nghLntd;” (“I will sign”) in the cross-examination cannot be stretched to an illogical extent so as to hold that the complaint (Ex.P.1) is hit by Section 162 Cr.P.C. Let us take the extreme case that the FIR (Ex.P.13) is hit by Section 162 Cr.P.C. What is the answer for the evidence of the injured witness Saraswathi (P.W.2)?
33 Mr. Manokaran attacked the copies of accident registers (Exs.P.14 and 15) by contending that the serial numbers therein have been corrected and therefore, the admission of the two injured in the Government Hospital, Erode becomes suspect. This argument has been negatived by the trial Court itself explicitly in paragraph 35 of the judgment. However, we are bound to answer it as this is an appeal against acquittal. To answer this issue, it may be necessary to state certain disquieting facts in this case.
31/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 34 As stated above, the injured duo, Viswanathan and Saraswathi (P.W.2) were taken by an ambulance to the Government Hospital, Erode, where they were first examined by Dr. Tamilselvi (P.W.12), who had made entries in the copies of accident registers (Exs.P.14 and P.15). In the copy of accident register (Ex.P.14) pertaining to Viswanathan, S.No.5265 has been struck off and in its place, S.No.5344 has been written and it has been countersigned. However, in the accident register (Ex.P.15) pertaining to Saraswathi (P.W.2), the serial number has been handwritten as 5345 and there is no correction in respect of that. In the cross- examination of Dr.Tamilselvi (P.W.12), she has admitted that there is a correction in the serial number in the copy of accident register (Ex.P.14) and she has very clearly stated that there are office instructions, as per which, serial numbers can be handwritten and that is why, they have been handwritten. Now, the question is what personal animosity does Dr. Tamilselvi (P.W.12) have towards the accused or what personal bias does she have in favour of the victims. Notwithstanding her answer, the defence has filed an application under Section 91 Cr.P.C. for summoning the originals of seven accident registers containing entries of hundreds of medico-legal cases from 2008 to 2010. This application has been blindly allowed by the trial Court and all these registers have been brought to the trial Court. Thereafter, an application has been filed under Section 311 Cr.P.C. to recall 32/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 Dr. Tamilselvi (P.W.12), which has been allowed by the trial Court and she was subjected to further cross-examination on 21.01.2011 and these registers have been marked as Exs.P.23 to P.29. What did the defence achieve by summoning these registers which are required to be in the Government Hospital, Erode, as permanent records?
35 Mr. Manokaran took us through the accident register relating to this case, on perusal of which, we found that not only in the copy of accident register (Ex.P.14), but also in the accident register copies relating to previous cases as well, serial numbers have been written in pen. So, writing the serial number in pen appears to be the practice at that time in the Government Hospital, Erode. Had the serial numbers in Exs.P.14 and P.15 alone been handwritten, then, there could be some room for suspicion. When it has been handwritten in all the leaves of the accident register, how can we hold that Exs.P.14 and P.15 were fabricated for this case? The trial Court should have sent back the original registers to the Government Hospital, Erode, after comparison, because, those registers will be required for so many other purposes. For instance, if a discharge summary has to be issued to a patient, the R.M.O. would have to consult the Accident Register and prepare the discharge summary. Sometimes, these accident registers may be 33/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 required for deciding a case, be it civil or criminal, by another Court. Hence, we strongly deprecate this practice of summoning unwanted Government records and keeping them locked in Courts, thereby causing great inconvenience and hardship to the authorities concerned. We direct the Deputy Registrar (Criminal Side), Madras High Court, to forthwith send the registers in Exs.P.23 to P.29 through a special messenger to the trial Court and we further direct the trial Judge to depute a special messenger to return these registers to the Government Hospital, Erode, within a fortnight from the date of receipt of the registers from this Court.
36 Next, the trial Court has failed to note the fact that the shirt (M.O.2) that was worn by Viswanathan had bloodstains belonging to AB group and the same AB group was found in the half shirt (M.O.8) vide serology report (Ex.P.12). Mr. Manokaran contended that in the absence of the police proving that the blood group of Viswanathan was AB and that the blood group of Thangavel (A.1) was not AB, this link cannot be of much use. He also attacked the seizure of M.Os. 7 and 8 by contending that the independent witness Ramaswamy (P.W.5) was a relative of Viswanathan. There appears to be sufficient force in the said submission of Mr. Manokaran with regard to the failure of the police to determine the blood group of Viswanathan and the accused. However, the fact remains that 34/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 human blood was found on the shirt (M.O.8) worn by Thangavel (A.1) for which he has to give a proper explanation. (See Nana Keshav Lagad vs. State of Maharashtra5 and Ganga Bai vs. State of Rajasthan6).
37 As regards the seizure, Ramaswamy (P.W.5) has stated that he is a relative of Viswanathan and had come to the village for expressing his condolence and at that time, the police wanted him to be a witness and hence, he obliged. It is a trite law that even in the worst case where the panchanama witness turns hostile, the recovery can be proved via the evidence of the Investigating Officer and therefore, on this ground, the acquittal of the accused cannot be sustained.
38 The trial Court has given a finding that the prosecution has not proved the place of occurrence properly, in that, the witnesses have stated that the incident took place in front of Viswanathan's shop, whereas, in the copies of the Accident Registers (Exs.P.14 and P.15), it is stated that the incident had taken place in the house. In our opinion, this is not a discrepancy which is so fatal, because, Viswanathan's shop is located just opposite his house and the incident 5 (2013) 12 SCC 721 6 (2016) 15 SCC 645 35/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 had taken place in the corner. With regard to the sanctity of the entries in the accident register relating to place of occurrence, etc., it may be profitable to refer to the judgments of the Supreme Court in P. Babu and others vs. State of Andhra Pradesh7 and B.Bhadriah and Others vs. State of Andhra Pradesh8. In P. Babu (supra), the Supreme Court has stated as under:
“It is a matter of common knowledge that such entry in the injury certificate does not necessarily amount to a statement. At that stage the doctor was required to fill up that column in a normal manner and it was not the duty of the doctor to enquire from the injured patient about the actual assailants and that the inquiry would be confined as to how he received the injuries namely the weapons used etc.” 39 Mr. Manokaran contended that the medical records from KMCH were not filed by the prosecution, especially the CT scan and x-ray that were taken were not produced and therefore, adverse inference should be drawn under Section 114(g) of the Evidence Act with regard to the cause of death. He further contended that Dr. Balasubramaniam (P.W.7) has admitted that the injuries as stated by him would have been caused by a blunt weapon. It is his further contention that Dr. Balasubramaniam (P.W.7) did not find out during postmortem as to whether Viswanathan was suffering from any heart disease, blood pressure,
7 1994 SCC (Crl.) 424 8 1995 Supp.(1) SCC 262 36/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 etc. Be it noted that the scope of postmortem is to find out the cause of death of a person and the question of noting the blood pressure will arise only when a person is alive and not in a dead body. It was suggested to Dr. Balasubramanaim (P.W.7) that if a person is attacked with a sharp weapon, contusions will not ensue. It was further asked to him as to whether if a person is attacked with a blunt weapon, 5 injuries referred to by him would be sustained, for which, he has stated in the affirmative. Mr. Manokaran wants this Court to rely upon these answers in the cross-examination to impeach the medical evidence with regard to the cause of death. In this case, noteworthy it is that Viswanathan did not die instantaneously. The incident took place on 29.03.2010 at 8.00 a.m. and the two injured were first admitted in the Government Hospital, Erode, where the injuries on their persons were recorded in the copies of the accident registers (Exs.P.14 and 15). It is true that against medical advice, they went and got themselves admitted in KMCH, which is a super speciality private hospital, since they wanted to get good medical care for the injuries sustained by them. Viswanathan died in KMCH only on 31.03.2010 at 2.30 a.m. and only thereafter, postmortem was done. These factors have to be given their due credence while appreciating the evidence of Dr.Balasubramaniam (P.W.7) who conducted the postmortem. 37/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 40 In this case, the trial Court has gone on a cruise to smell doubts for the sake of giving benefits to the accused ignoring the time-tested norms for appreciation of evidence in a criminal case. In Lal Singh vs. State of Gujarat and another9, the Supreme Court has held as under:
"88. It is true that under our existing jurisprudence in criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land......." (emphasis supplied)
41 Mr. Manokaran contended that immediately after the incident, both Viswanathan and his wife Saraswathi (P.W.2) were conscious and oriented and therefore, their statements could have been immediately recorded so that they could have been treated as dying declarations in the event of their death. It is true that all the witnesses have stated that Viswanathan and Saraswathi (P.W.2) were conscious and oriented and even in the copies of the accident registers (Exs.P.14 and P.15), it is stated so. However, after they were admitted in KMCH, Viswanathan's condition started deteriorating as could be seen from the evidence of Dr. Mohan (P.W.13), who has stated that Viswanathan had to be given ventilator support as there was haemorrhage in his brain. Thereafter, his condition sank further and he breathed his last at 2.30 a.m. on 31.03.2010. As regards 9 (2001) 3 SCC 221 38/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 Saraswathi (P.W.2), her condition was not very serious and she was discharged from KMCH on 08.04.2010. Dr. Mohan (P.W.13) has noted the following four injuries on her person:
"1 A lacerated injury on the left cheek extending upto the left ear 2 Another lacerated injury between left thumb and index finger 3 Bleeding injury inside the left thumb 4 Bleeding injury on the front portion of the head."
Dr. Mohan (P.W.13) has opined that injury nos. 1 and 4 are grievous in nature and the rest are simple injuries. Therefore, the question of bringing a Magistrate for recording the statement of Saraswathi (P.W.2) anticipating that she may die appears a little far-fetched.
42 Finally, Mr. Manokaran submitted that the incident had taken place on 29.03.2010 when Thangavel (A.1) and Mariammal (A.2) were aged 57 years and 55 years respectively and their acquittal was on 14.06.2011; now, Thangavel (A.1) is 68 years old and Mariammal (A.2) is equally old and at this old age, it will be unjust to reverse their acquittal.
39/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 43 We gave our thoughtful consideration to this submission. When we analysed the trajectory of the case, we were indeed surprised to note the following facts. The incident took place on 29.03.2010 and within 15 months, the trial got over and the accused were acquitted. This is indeed very unusual in our Court system given the litigation traffic in the Court of the Principal District and Sessions Judges in the State. If criminal cases are concluded in such break-neck speed, then, we may not be required to have Fast Track Courts and Special Courts. With raised eyebrows, we put an end to this topic and proceed to the next.
44 After the acquittal, strangely, the State did not prefer any appeal but Sakthi Saravanan (P.W.1) engaged a private counsel for agitating this matter in the higher forum. Oblivious of the introduction of the proviso to Section 372 Cr.P.C. by Act 5 of 2009 effective 31.12.2009, the counsel for Sakthi Saravanan (P.W.1) filed a revision petition under Section 397 read with Section 401 Cr.P.C., which was numbered and admitted by this Court and remained in the limbo till it was found on a fine day that a revision is not maintainable, but only an appeal under the proviso to Section 372 Cr.P.C. So, the revision petition was converted in 2018 to Crl.A. No.492 of 2018 and has, at last, been taken up by us in July 2021. 40/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 Naturally, the accused aged with the litigation for which they cannot be blamed, because, time and tide wait for no man.
45 The British constructed a criminal justice system for India, for a systematic and expeditious determination of the culpability or otherwise of an accused person, based on the belief of the West that time is linear. After their departure, we adapted the judicial system in sync with our belief system which is predicated on the circular movement of time and theory of karma. Very recently, a US based think-tank Pew, has conducted a survey on Indians and has published a report, which is available in the public domain. The report says that 77% of Hindus and an equal percentage of Muslims in India believe in karma. In simple terms, karma theory means "What you sow, so shall you reap". Some, who sow in the morning, are lucky enough to reap in the evening; some reap the fruits of their actions after a long time; and some others are said to reap in the next life. Inscrutable and arcane is the law of karma, that Krishna called it a secret of secrets in the Bhagavad Gita (Chapter 18, Verse 63). However, the accused herein appear to fall in the second category, in that, nemesis is catching up with him in this lifetime itself, but, of course, after a decade. We are helpless, for, that is how, the Indic justice-cum-karma system works. The following passage from the judgment 41/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 of the Supreme Court in Himmat Sukhadeo Wahurwagh & others v. State of Maharashtra10 may be somewhat apt for the present discussion:
"26. In this pernicious state of affairs, the Judge, gravely handicapped, has to apply his knowledge of the law and his assessment of normal human behaviour to the facts of the case, his sixth sense based on his vast experience as to what must have happened, and then trust to God and good luck that he strikes home to come to a right conclusion. To our mind, the last two are undoubtedly imponderables but they do come into play in negotiating the judicial minefield. This is an undeniable fact whether we admit it or not."
46 On a complete appreciation of the evidence on record, in the ultimate analysis, we are of the view that the acquittal of Thangavel (A.1) is bad in law and at the same time, we do not want to disturb the acquittal of his wife Mariammal (A.2).
47 In view of the foregoing discussion:
➢ the acquittal of Thangavel (A.1) of the offence under Sections 302 and 307 IPC is set aside. However, we confirm his acquittal of the charge under Section 506(II) IPC; and ➢ coming to Mariammal (A.2), her acquittal stands confirmed.
10 (2009) 6 SCC 712 42/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018
48 Coming to the penal provisions, we are of the view that the proved facts fall within the pigeon-hole of the third part of Section 299 IPC and Thangavel (A.1) is liable to be punished under Section 304 (II) IPC for causing the death of Viswanathan. As regards the attack mounted on Saraswathi (P.W.2), Thangavel (A.1) is liable to be convicted under Section 326 IPC. Hence, Thangavel (A.1) is convicted of the offences under Section 304 (II) IPC and Section 326 IPC. He is directed to appear in person before this Court on 29.07.2021 (Thursday) for being questioned on the sentence.
Call on 29.07.2021 (Thursday) at 2.30 p.m.
(P.N.P., J.) (R.P.A., J.)
23.07.2021
cad
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Crl.A.No.492 of 2018
P.N. PRAKASH, J.
and
R. PONGIAPPAN, J.
cad
To
1 The Principal Sessions Judge
Erode
2 The Inspector of Police
Modakkurichi Police Station
(Cr. No.112 of 2010)
Erode District
3 The Public Prosecutor
High Court of Madras
Chennai 600 104
4 The Deputy Registrar (Crl. Side)
Madras High Court
Chennai 600 104
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Crl.A.No.492 of 2018
Crl.A. No.492 of 2018
P.N. PRAKASH, J.
and
R. P0NGIAPPAN, J.
Thangavel (A.1) is present today.
2 When he was questioned on sentence, he submitted that he is
innocent; he has been framed by the family of the deceased Viswanathan ; he is 68 years old now; he is suffering from various ailments and hence, some leniency may be shown to him.
3 Mr. N. Manokaran, learned counsel for the accused, submitted that Thangavel (A.1's) son-in-law committed suicide and has left his daughter, a widow, to be taken care of by him.
4 We carefully considered the aforesaid submissions of Thangavel (A.1) and Mr. N. Manokaran, learned counsel for the accused.
5 Thangavel (A.1) appears emaciated and weak. We are of the view that interests of justice would be served if Thangavel (A.1) is sentenced as under and it is ordered accordingly:
45/48
https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 Provision of law S.No. under which Sentence convicted 1 Section 304(II) IPC 3 years rigorous imprisonment 2 Section 326 IPC 1 year rigorous imprisonment and fine of Rs.1,000/-, in default to undergo 4 weeks simple imprisonment The aforesaid sentences are ordered to run concurrently. Further, Thangavel (A.1) is entitled to set off under Section 428 Cr.P.C.
6 That apart, it is just and necessary that some compensation is awarded to the family of the victim who had lost the breadwinner of their family. Hence, Thangavel (A.1) is directed to pay a compensation of Rs.1 lakh under Section 357(3) Cr.P.C. for causing the death of Viswanathan, punishable under Section 304(II) IPC, by depositing the said sum before the trial Court, in default thereof, to undergo simple imprisonment for a period of one year, in addition to the substantive sentence of imprisonment. On such deposit, the trial Court shall disburse the same to Sakthi Saravanan (P.W.1) or Saraswathi (P.W.2), whoever is alive.
46/48 https://www.mhc.tn.gov.in/judis/ Crl.A.No.492 of 2018 In the result, this criminal appeal is allowed in part in the above terms.
(P.N.P., J.) (R.P.A., J.)
29.07.2021
cad
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P.N. PRAKASH, J.
and
R. P0NGIAPPAN, J.
cad
Crl.A. No.492 of 2018
29.07.2021
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https://www.mhc.tn.gov.in/judis/