Madras High Court
Indra vs State Represented By on 16 September, 2021
Bench: P.N.Prakash, R.N.Manjula
Crl.A.No.582 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Ms. Justice R.N.MANJULA
Crl.A.No.582 of 2018
1.Indra
2.Sathish .. Appellants/Accused 1&3
Vs.
State represented by
The Inspector of Police,
Omalur Police Station,
Salem District.
(Crime No.793/2012) .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
judgment and order dated 23.07.2018 passed in S.C.No.187 of 2016 on the
file of the III Additional Sessions Court, Salem and to set aside the same.
For Appellants : Mr.S.N.A.Hussainy
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis/
Crl.A.No.582 of 2018
JUDGMENT
(Delivered by P.N.PRAKASH, J.) This criminal appeal has been filed against the judgment and order dated 23.07.2018 passed in S.C.No.187 of 2016 on the file of the III Additional Sessions Court, Salem and to set aside the same.
2. The prosecution story runs thus:
2.1 The deceased Govindasamy, who was forty six years at the time of the incident, was living with his family comprising his wife Indhrani (PW2), son Srinath (PW1) and daughter Sripriya (PW3) in Kuttakaadu, Palpaaki Village, Omalur Taluk, Salem District. Govindasamy was an agriculturist.
2.2 On 28.12.2012, around 8.30 p.m., Govindasamy heard barking of dogs and so, he went out to check what was happening. After some time, his daughter Sripriya (PW3) heard him hollering “Rani...Rani...” and so, she Page 2 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 (PW3), along with her mother Indhrani (PW2), went towards the direction, from where, they heard the sound. There, they saw in the darkness, two persons attacking Govindasamy and thereafter, fleeing on seeing them. Govindasamy was found with stab injuries in his abdomen and left side of his ribs. Immediately, the neighbours were alerted and Govindasamy was carried by Rajagopal (PW4) and Nallathambi (PW5) in their motorcycle to Manipal Hospital, Salem, where, on examination by the doctors, they found him dead. Thereafter, the body of Govindasamy was taken to the Government Hospital, Omalur, where, it was kept in the mortuary.
2.3 On a written complaint (Ex-P1) given by Srinath (PW1), Hariharan (PW18), Sub-Inspector of Police, registered a case in Omalur Police Station Crime No.793 of 2012 for the offence under Section 302 IPC on 29.12.2012 at 1.00 a.m. and prepared the printed FIR (Ex-P23), which reached the jurisdictional Magistrate at 4.00 a.m. on the same day as could be seen from the endorsement thereon. In the complaint (Ex-P1), the names of the assailants were not mentioned as none knew who the actual assailants were.
Page 3 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 2.4 Investigation of the case was taken over by Baskaran (PW19), Inspector of Police, who went to the place of occurrence and prepared the observation mahazar (Ex-P7) and rough sketch (Ex-P24).
2.5 From the place of occurrence, the Investigating Officer seized the following items under the cover of a mahazar (Ex-P8):
i. Bloodstained dark blue half sleeve shirt .. M.O.14 ii. A pair of 'VKC lite' branded sandals .. .. M.O.15 iii. A pair of 'Mark' branded sandals .. .. M.O.16 iv. A stick measuring 130 cm. .. .. M.O.17 2.6 300 feet from the place of occurrence, the Investigating Officer seized the following items under the cover of a mahazar (Ex-P9):
i. Two bidis .. .. M.O.8
ii. One Gold Flake cigarette .. .. M.O.9
iii. One empty Old Seered branded
brandy bottle measuring 180 ml. .. .. M.O.10
iv. One empty brandy bottle measuring 180 ml. .. M.O.11
v. Two plastic tumblers .. .. M.O.12
vi. One empty plastic 600 ml. 7 Up bottle.. .. M.O.13
2.7 After conducting inquest over the body of Govindasamy,
autopsy was performed by Dr.Paneer Selvam (PW7), who, in his evidence as well in the postmortem certificate (Ex-P3), has recorded the following Page 4 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 injuries:
“Injuries:
➢ Dark brown linear abrasion 5 in numbers over the lateral wall of right side of chest varying from 4 to 5 cms. ➢ A stab injury below umbilicus M.2.5 x 1 x cavity deep and it is situated 3.5 cms below left side of umbilicus and 105 cms above left foot.
➢ A chopped injury edges are bevelled incised like lacerated injury over lateral wall of left side chest M-6 x 2 x muscle deep and it is situated at the level of left 8th rib, 126 cms above left foot and 26 cms below left acromian process. ➢ Stab injury m-2.5 x 1 x 5 cms over right lower back of abdomen and 42 cms below right acromian process and 112 cms above right foot.” 2.8 After obtaining the visera report (Ex-P4), Dr.Paneer Selvam (PW7) gave his final opinion (Ex-P5) as to the cause of death of Govindasamy, wherein, it is stated as follows:
“Final Opinion: The deceased would appear to have died of effects of shock + Haemorrhage due to multiple stab in Abdomen.” 2.9 The police were clueless, as to who, the perpetrators of the offence was, until a breakthrough was made by Ashok Kumar (PW17), Inspector of Police, Yilawala Police Station, Karnataka State, who arrested Page 5 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 some gypsies on suspicion, in Yilawala Police Station Crime No.17 of 2013 for the offences under Sections 399 and 402 IPC on 05.02.2013. While recording the police statement of the arrested gypsies, Indra (A1) and Kadhal @ Rama (A2) confessed to their involvement in the murder of Govindasamy in the adjoining Tamil Nadu State.
2.10 Thereafter, Baskaran (PW19), Inspector of Police, arrested Sathish (A3) on 06.02.2013 and recovered the following items from him under the cover of a mahazar (Ex-P11):
i. A plastic box with traditional medicine powder measuring 12 cms x 16 cms with green colour lid .. M.O.1 ii. A plastic box with traditional medicine powder measuring 10 cms x 19 cms with red colour lid .. M.O.2 iii. A plastic box measuring 10 cms x 17 cms with red colour lid .. M.O.3 iv. 175 ml Morphews XO blended premium brandy bottle with some herbal medicine .. M.O.4 v. A small iron pestle measuring 14 cms. .. M.O.5 vi. A small iron mortar measuring 6 cms. .. M.O.6 vii.A long sling bag made up of red velvet cloth .. M.O.7 2.11 It also came to light that one another person by name Gunda (A4) was also involved in the murder of Govindasamy along with the Page 6 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 aforesaid three others. Indra (A1) and Rama @ Kadhal (A2), who were arrested by the Karnataka State Police in Yilawala Police Station Crime No.17 of 2013, were placed under arrest in this case also.
2.12 On transfer of Baskaran (PW19), investigation of the case was continued by Kumaresan (PW20), Inspector of Police, who completed the investigation and filed a final report in P.R.C.No.10 of 2014 before the District Musif-cum-Judicial Magistrate Court, Omalur, against Indra (A1), Kadhal @ Rama (A2), Sathish (A3) and Gunda (A4) (absconding) for the offences under Sections 120-B, 341 and 302 r/w 34 IPC. The case against Gunda (A4) was split up by the committal Magistrate himself.
2.13 On appearance of the appellants, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C. No.187 of 2016 and was made over to the III Additional Sessions Court, Salem, for trial.
2.14 The trial Court framed the following charges: Page 7 of 15
https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 Charge No. Offences against Under Section(s) 1 Indra (A1) Kadhal @ Rama (A2) 120-B IPC Sathish (A3) 2 Indra (A1) 341 IPC and 302 r/w 34 IPC Kadhal @ Rama (A2) 302 r/w 120-B IPC Sathish (A3) When questioned, the appellants pleaded “not guilty”.
2.15 To prove the prosecution case, the police examined twenty witnesses and marked thirty two exhibits and twenty materials objects.
2.16 When the appellants were questioned under Section 313 Cr.P.C.
on the incriminating circumstances appearing against them, they denied the same. A plea was taken on behalf of Kadhal @ Rama (A2) that he was a juvenile at the time of occurrence and enquiry was conducted by the trial Court pursuant to the directions of this Court. From the side of the appellants, no witness was examined nor any document marked. Page 8 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 2.17 After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 23.07.2018 in S.C.No.187 of 2016, convicted and sentenced the appellants as follows:
S.No. Accused Provision under Sentence
which convicted
1 Indra (A1) 341 IPC One month simple imprisonment
and fine of Rs.500/-, in default to
undergo one month simple
imprisonment.
302 r/w 34 IPC Life imprisonment and fine of
Rs.1,000/-, in default to undergo six
months simple imprisonment.
2 Sathish 302 r/w 34 IPC Life imprisonment and fine of
(A3) Rs.1,000/-, in default to undergo six
months simple imprisonment.
The aforesaid sentences were ordered to run concurrently. The case against Kadhal @ Rama (A2) was separated and was sent to the Juvenile Justice Board, for trial, as it was found that he was a juvenile at the time of the occurrence.
2.18 Aggrieved by the same, the appellants (AA1 and 3) have preferred the present appeal.
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3. Heard Mr.S.N.A.Hussainy, learned counsel for the appellants and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State.
4. At the outset, it may be relevant to state that the prosecution has proved beyond a peradventure about the homicidal death of Govindasamy on the night of 28.12.2012 and the same is not a dispute in this case at all.
5. However, the learned counsel for the appellants contended that there is absolutely no shred of legal evidence to implicate the appellants with the crime. To appreciate his contention, it may be necessary to discuss the testimonies of various prosecution witnesses.
6. Srinath (PW1), Indhrani (PW2), Sripriya (PW3), Rajagopal (PW4) and Nallathambi (PW5) have stated about the attack on Govindasamy on the fateful day, but, they have very clearly stated that they did not see the assailants. In fact, Indhrani (PW2) and Sripriya (PW3), in Page 10 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 their evidence, have stated that two months after the incident, the police brought the appellants to their house and introduced them as the persons, who had committed the murder of Govindasamy.
7. Anbazhagan (PW6), in his evidence, has stated that he knows the family of Govindasamy as he was living in the neighbourhood and on 28.12.2012, around 6.30 p.m., he had seen four persons in and around the area. He has further stated that four days prior to the occurrence, he had purchased medicinal oils from Sathish (A3). No test identification parade was conducted by the police for this witness to identify the suspects.
8. Be that as it may, even if we accept the evidence of Anbazhagan (PW6) in toto, what comes out of it is that, he (PW6) had seen the three accused in and around that area at 6.30 p.m. and nothing beyond that. This, by itself, cannot lead to the inference that it was these three persons, who had committed the murder of Govindasamy. Ashok Kumar (PW17), Inspector of Police, Yilawala Police Station, Karnataka State, has stated that while he was conducting investigation in Yilawala Police Station Page 11 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 No.17 of 2013, he arrested some gypsies and during the investigation they confessed about their involvement in the murder of a person in Omalur, Salem, Tamil Nadu. He shared this information with the Tamil Nadu Police. We have no reason to disbelieve his testimony as he had no personal axe to grind for falsely implicating the accused in this case. Except the police confession, which is inadmissible under Section 25 of the Evidence Act, 1872, there is no iota of legally admissible evidence to connect the appellants with the crime. The recoveries effected from Sathish (A3) also do not in any manner, link him with the offence. It is also seen that the prosecution has not attributed any motive for the offence. This is not a case of murder for gain, because, the offence had taken place outside the house of Govindasamy and nothing was robbed from him.
In the result, this criminal appeal is allowed by setting aside the judgment and order dated 23.07.2018 passed in S.C.No.187 of 2016 on the file of the III Additional Sessions Court, Salem and the appellants stand acquitted. Fine amount, if any, paid by the appellants, shall be refunded to them. Bail bond, if any executed, shall stand discharged. The appellants Page 12 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 shall be released, if not required in any other case or if required by any Court in Karnataka, they may be transferred there.
(P.N.P.,J.) (R.N.M.,J.) 16.09.2021 nsd To
1.The III Additional Sessions Judge, Salem.
2.The Inspector of Police, Omalur Police Station, Salem District.
3.The Superintendent of Police, Central Prison, Coimbatore.
4.The Public Prosecutor, Madras High Court, Chennai – 600 104.
Page 13 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 P.N.PRAKASH,J.
and R.N.MANJULA,J.
nsd Crl.A.No.582 of 2018 Page 14 of 15 https://www.mhc.tn.gov.in/judis/ Crl.A.No.582 of 2018 16.09.2021 Page 15 of 15 https://www.mhc.tn.gov.in/judis/