Madras High Court
Velmurugan vs State Rep. By on 30 August, 2019
Author: P.N. Prakash
Bench: P.N.Prakash
CRL.A.Nos.112 and 136 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.08.2019
PRONOUNCED ON : 30.08.2019
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.A.Nos.112 and 136 of 2019
AND
CRL.M.P.Nos.7606 and 8302 of 2019 in CRL.A.No.136 of 2019
CRL.A.No.112 of 2019
Velmurugan .. Appellant
Vs
State rep. by,
Inspector of Police,
J-5 Shastri Nagar Police Station,
Besant Nagar,
Chennai 600 090. .. Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside the
judgment dated 18.02.2019 in S.C.No.197 of 2017 on the file of the Principal
Sessions Court at Chennai insofar as it holds the appellant/7th appellant guilty
of offences under Section 304 read with 34 IPC and sentencing him to undergo
rigorous imprisonment for 5 years and to pay a fine of Rs.1000/- in default, to
undergo simple imprisonment for 6 months.
For Appellant : Mr.T.Saikrishnan
For Respondent : Mr.G.Ramar, GA (Crl. Side)
http://www.judis.nic.in
1/40
CRL.A.Nos.112 and 136 of 2019
CRL.A.No.136 of 2019
1.Thulasiraman
2.Suresh @ Munikutty
3.Sathya
4.Praveenkumar .. Appellants
Vs
State rep. by,
Inspector of Police,
J-5 Shastri Nagar Police Station,
Besant Nagar,
Chennai 600 090. .. Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside the
judgment passed on 18.02.2019 in Sessions Case No.197 of 2017 on the file of
the Principal Sessions Court, Chennai.
For Appellants : Mr.C.Vijayakumar (for A1)
: Mr.P.T.Perumal (for A2)
: Mr.C.K.M.Appaji
for Mr.G.Shivasurya (for A3 & A4)
For Respondent : Mr.G.Ramar, GA (Crl. Side)
COMMON JUDGMENT
These appeals are directed against the judgment of conviction and sentence dated 18.02.2019 passed by the Principal Sessions Judge, Chennai in S.C.No.197 of 2017.
2.The prosecution story is as follows :
2.1. Sastri Nagar 4th Lane was declared as a slum area under the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and the slum dwellers were identified and given allotment of land for their occupation by the Tamil Nadu Slum Clearance Board (for brevity “the Board”).
http://www.judis.nic.in 2/40 CRL.A.Nos.112 and 136 of 2019 2.2. Accordingly, the deceased Jayaraman was given allotment of plot No.96A (door No.16A/33) measuring 0.94.0 sq.mtrs. (1011.81 sq.ft.) in 4th Lane, Sastri Nagar by the Board on 03.07.1995 vide Ex.P9. During the 2015 Chennai floods, Sastri Nagar area got marooned and Jayaraman’s dwelling was seriously damaged. Therefore, Jayaraman shifted his residence to door No.26/33, 6th Lane, Sastri Nagar and began construction of a house in plot No.96A (door No.16A/33) in 4th Lane, Sastri Nagar.
2.3. Thulasiraman (A1) and his brother Suresh @ Munikutty (A2) are advocates, who live in that area. It is alleged that Thulasiraman (A1), Suresh @ Munikutti (A2), Sathya (A3), Praveenkumar (A4), Murali (A5), Manoharan (A6), Velmurugan (A7) and Ramachandran @ John (A8) were constantly harassing Jayaraman and preventing him from constructing a house in plot No.96A (door No.16A/33) with an intention to grab his land.
2.4. On 07.11.2016, around 10.30 a.m., Thulasiraman (A1) and his group trespassed into plot No.96A (door No.16A/33), demolished a shed that was put up in the land for stacking cement and building materials, brandished knives, asked him to stop the construction and hand over the land by the next morning or face dire consequences.
http://www.judis.nic.in 3/40 CRL.A.Nos.112 and 136 of 2019 2.5. Jayaraman lodged a police complaint on the same night narrating all these facts, but, the police did not register a regular F.I.R. and instead, entered the complaint in the Community Service Register as C.S.R.No.277 of 2016. Jayaraman was in a state of fear and depression that night, and on the next day, i.e. on 08.11.2016, around 08.30 a.m., he went to plot No.96A (door No.16A/33) and in public, doused himself with petrol and committed self-immolation. He was rushed to Sivasundar Hospital from where he was taken to the Government Kilpauk Medical College and Hospital, where he was examined by Dr.J.Dharmaraj (PW11) at 09.15 a.m. on 08.11.2016.
2.6. Dr.J.Dharmaraj (PW11), in his evidence as well in the Accident Register copy (Ex.P5), has stated that Jayaraman was brought by his relative Kumaresan and when he enquired, he told him that he committed self- immolation. He was found to have burn injuries all over his body and it smelt of petrol. He was admitted to the Burns Ward for treatment. The police recorded the statement (Ex.P1) of Manikandan (PW1) at the hospital, based on which, Manojkumar (PW16), Sub Inspector of Police, registered a case in Sastri Nagar Police Station Crime No.1804 of 2016 on 08.11.2016 at 14.00 hours under Section 309 IPC against Jayaraman for attempting to commit suicide. http://www.judis.nic.in 4/40 CRL.A.Nos.112 and 136 of 2019 2.7. On 09.11.2016, a requisition was given to Mrs.Manimegalai, XX Metropolitan Magistrate, Chennai, for recording the statement of Jayaraman and accordingly, she went to the Burns Ward of the Government Kilpauk Medical College and Hospital at 12.20 p.m. and recorded the statement (Ex.P8).
2.8. Dr.Rajeswari (PW13) has certified in the dying declaration that Jayaraman was fully conscious and well oriented throughout the period of giving the statement.
2.9. On 13.11.2016, at 15.50 hours, Jayaraman succumbed to the burn injuries. On getting intimation, Praveen Rajesh (PW17), Inspector of Police, altered the case from one under Section 309 IPC to 306 IPC vide alteration report (Ex.P13).
2.10. The Investigating Officer conducted inquest over the body of the deceased and the inquest report was marked as Ex.P14. Dr.Devasena (PW10) performed autopsy on the body of the deceased and issued post- mortem certificate (Ex.P4). Dr.Devasena (PW10) sent the samples of the visceral organs to the Tamil Nadu Forensic Sciences Laboratory for examination and the examination report (Ex.P6) states that no alcohol or other poison was detected. After obtaining the Viscera Report, Dr.Devasena (PW10) opined that http://www.judis.nic.in 5/40 CRL.A.Nos.112 and 136 of 2019 the deceased would appear to have died of complication of burns and septicemia.
2.11. During the course of police investigation, it came to light that the appellants were wanting to grab the property of the deceased and were subjecting him to such an amount of torment and harassment, that he was driven to commit suicide by self-immolation. After wrapping up the investigation, the police filed final report in P.R.C.No.20 of 2017 before the IX Metropolitan Magistrate, Saidapet, Chennai against the eight persons viz. Thulasiraman (A1), Suresh @ Munikutti (A2), Sathya (A3), Praveenkumar (A4), Murali (A5), Manoharan (A6), Velmurugan (A7) and Ramachandran @ John (A8) for the offences under Section 306 read with Section 34 IPC. Some of them obtained anticipatory bail and some of them were arrested.
2.12. On the 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.197 of 2017 and was tried by the Principal District and Sessions Court, Chennai. The trial Court framed a charge under Section 306 read with Section 34 IPC and when questioned, the appellants pleaded “not guilty”.
http://www.judis.nic.in 6/40 CRL.A.Nos.112 and 136 of 2019 2.13. To prove the case, the prosecution examined 17 witnesses, marked fourteen exhibits and one material object. When the appellants were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. On the side of the appellants, Mr.Shanmugam, I.A.S., Managing Director of the Board and Arumugam, Head Surveyor of the Board were examined as D.W.1 and D.W.2 respectively and Ex.D1 and Ex.D2 were marked.
2.14. After considering the evidence on record and hearing either side, the trial Court by judgment and order dated 18.02.2019, acquitted Murali (A5), Manoharan @ Sugumar (A6) and Velmurugan (A7) of the offences under Section 306 and Section 34 IPC, but, convicted and sentenced each of the other appellants to undergo five years rigorous imprisonment and pay fine of Rs.1,000/- in default, to undergo six months simple imprisonment. Challenging the conviction and sentence, Thulasiraman (A1) and Suresh @ Munikutty (A2), Sathya (A3) and Praveenkumar (A4) have filed C.A.No.136 of 2019. Velmurugan (A7) has filed C.A.No.112 of 2019.
3. Heard Mr.Vijayakumar, learned counsel for Thulasiraman (A1), Mr.P.T.Perumal, learned counsel for Suresh @ Munikutty (A2), Mr.C.K.M.Appaji, learned counsel representing Mr.G.Shivasurya, learned counsel on record for Sathya (A3) and Praveenkumar (A4) and Mr.G.Ramar, learned Government http://www.judis.nic.in 7/40 CRL.A.Nos.112 and 136 of 2019 Advocate (Crl. Side) appearing for the respondent State.
4. Since overlapping arguments were advanced by the counsel, this Court is not enumerating the individual arguments and instead, the substance of the defence submissions is addressed in the body of this judgment.
5. The prosecution has proved beyond cavil that a man by name Jayaraman, aged about 54 years, was living with his family comprising his wife Kavitha (PW3), son Manikandan (PW1) and daughter-in-law Devika (PW2), in door No.26/33, 6th Lane, Sastri Nagar and was building a house in plot No.96A (door No.16A/33), 4th Lane, Sastri Nagar; on 08.11.2016, around 8.30 a.m., Jayaraman committed self-immolation using petrol in front of plot No.96A (door No.16A/33) and died in the Government Kilpauk Medical College and Hospital on 13.11.2016 at 15.50 hours. These facts are not assailed by the defence.
6. The fact in issue is whether the appellants herein had abetted the suicide of Jayaraman.
7. It is the case of the prosecution that the appellants, along with the acquitted accused, were continuously harassing Jayaraman and were preventing him from constructing his house in plot No.96A (door No.16A/33), 4th Lane, Sastri Nagar; the last straw on the camel’s back was on 07.11.2016 http://www.judis.nic.in 8/40 CRL.A.Nos.112 and 136 of 2019 around 10.30 a.m., when the appellants and others forcibly barged into plot No.96A (door No.16A/33), destroyed the temporary shed that was put up by Jayaraman for stacking the building materials, assaulted Jayaraman and criminally intimidated him to handover the plot to them, before the next morning.
8. On the contrary, it is the case of the defence that there was a well in plot No.96A (door No.16A/33), which provided the source of water supply to the residents of 4th Lane and that, Jayaraman had usurped the land by illegal means and by constructing a house thereon, he was closing the well and therefore, in public interest, the appellants peacefully requested him not to proceed with the construction.
9. In order to prove that plot No.96A (door No.16A/33) was allotted to Jayaraman by the Board, the prosecution examined Uma Maheswari (PW15), Assistant Secretary (Plots), TNSCB, who, in her evidence, has stated that plot No.96A (door No.16A/33) in Sastri Nagar was allotted by the Board to Jayaraman, S/o.Kannan, vide allotment order (Ex.P9), which shows that Jayaraman was allotted plot No.96A (door No.16A/33) measuring 0.94.0 sq.mtrs (1011.81 sq.ft.) She was subjected to grilling cross-examination and it was suggested to her that public wells were provided in every lane in Sastri Nagar, which suggestion, she denied. She was questioned about the http://www.judis.nic.in 9/40 CRL.A.Nos.112 and 136 of 2019 layout of Sastri Nagar for which, she stated that the layout is available in the office. When she was asked as to whether, the public had given representation to the Board that Jayaraman has usurped the public well in plot No.97, she stated that she does not know about it and only on seeing the office files, will she be able to say anything. No attempt was made by the defence either to call for the files or at least to confront her with a copy of the alleged representation. She has further stated that she is ready to submit all the records relating to plot No.97. It was suggested to her that there was no plot with number 96A (door No.16A/33), which suggestion, she denied. It was further suggested to her that the allotment order (Ex.P9) has been fabricated by the Board, which suggestion also she denied. Thus, the sum and substance of the defence case is that, there was a well in plot No.97, which Jayaraman was attempting to usurp.
10. However, the allotment order (Ex.P9) is dated 03.07.1995 and is not of recent origin and this Court has no credible reason to believe that the Board had fabricated the allotment order (Ex.P9). In the allotment order (Ex.P9), it is clearly stated that Jayaraman, S/o.Kannan has been allotted plot No.96A (door No.16A/33) measuring 0.94.0 sq.mtrs (1011.81 sq.ft.) and that he was required to pay a monthly instalment of Rs.69/-. The sale consideration for the plot was fixed at Rs.7,050/-. As stated above, the Board was created by an Act of Legislature to identify slum areas, conduct http://www.judis.nic.in 10/40 CRL.A.Nos.112 and 136 of 2019 enumeration of slum dwellers and allot plots to them, so that, they can build pucca houses. The allotment order contemplates a lease-cum-sale agreement.
11. It is the case of Jayaraman that he was allotted plot No.96A (door No.16A/33) in the year 1995 and was living there in a hut; but, in the 2015 floods in Chennai, the entire area was submerged and therefore, he shifted his house to door No.26/33, 6th Lane and started constructing a pucca house in plot No.96A (door No.16A/33). The defence have not denied this, but, it is their case that Jayaraman was building a house in plot No.97, which is said to have had a well, which Jayaraman was trying to close.
12. The defence summoned Mr.Shanmgam, I.A.S., the Managing Director of the Board and marked Ex.D1-rejection order. Mr.Shanmugam (DW1) has stated that one Deenadayalan applied for allotment of plot No.97 in Sastri Nagar, but, the allotment was denied on the ground that there was a well in it. The Public Prosecutor wisely did not cross-examine this witness at all, because, this witness did not speak about plot No.96A (door No.16A/33), which was allotted to Jayaraman vide allotment order (Ex.P9) way back on 03.07.1995, whereas, this witness spoke about the request made by one Deenadayalan in the year 2001 for allotment of plot No.97 and a copy of the rejection order was marked as Ex.D1. It is true that in the rejection order (Ex.D1), it is stated that there is a well in plot No.97 and that has been cited as http://www.judis.nic.in 11/40 CRL.A.Nos.112 and 136 of 2019 a reason for denying the request of Deenadayalan. How is that relevant to plot No.96A (door No.16A/33)? No question was put to Mr.Shanmugam (DW1) about plot No.96A (door No.16A/33). He was not asked whether there was a well in plot No.96A (door No.16A/33). He was also not confronted with the allotment order (Ex.P9) and questioned about its genuineness.
13. The defence examined Arumugam (DW2), Head Surveyor of the Board and marked the Sastri Nagar layout as Ex.D2, in order to show that there was no plot No.96A (door No.16A/33). In the cross-examination by the Public Prosecutor, Arumugam (DW2) has stated that the layout (Ex.D2) was of the year 1983 and thereafter, plot No.96A (door No.16A/33) was allotted to Jayaraman. To a specific question posed by the trial Judge, the witness has stated that, after 1993, there was no modification to the layout. This clearly means that between 1983 and 1993, the layout had undergone changes. It may be necessary to recapitulate here that Jayaraman was given allotment of plot No.96A (door No.16A/33) in the year 1995 vide Ex.P9. Thus, from the evidence of Maheswari (PW15), Shanmugam (DW1) and Arumugam (DW2), it has been established beyond peradventure that Jayaraman was allotted plot No.96A (door No.16A/33) in the year 1995 itself and there was no well in that plot.
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14. Learned counsel for the defence contended that Jayaraman had sent a caveat notice dated 25.10.2016 to Thulasiraman (A1), which has been burked by the prosecution. In the opinion of this Court, this only shows that Thulasiraman (A1) and his group were harassing Jayaraman and therefore, Jayaraman must have feared that Thulasiraman (A1) and his brother Suresh @ Munikutti (A2), being advocates, would obtain an order of injunction against him, in anticipation of which, he would have lodged a caveat.
15. On the contrary, the proved facts which will be discussed in detail below, would clearly go to show that Thulasiraman (A1) and his group were not acting like lawyers, but like land-grabbers. In order to prove the attack on Jayaraman’s land on 07.11.2016 at 09.00 hours by Thulasiraman (A1) and his group, the prosecution have marked the FIR in Crime No.1799 of 2016 that was lodged by Jayaraman himself, the dying declaration of Jayaraman (Ex.P11) and relied upon the evidence of Manikandan (PW1), Devika (PW2), Kavitha (PW3) and Chandrasekaran (PW5). The defence attacked the FIR in Crime No.1799 of 2016 (Ex.P11) by contending that it came into picture, only after the self-immolation by Jayaraman and that it was sent to the Magistrate only on 09.11.2016 along with the F.I.R. in Crime No.1804 of 2016. The defence also contended that Manikandan (PW1) and his wife Devika (PW2) were not present when the incident on 07.11.2016 took place, as they had gone to their office and that they came to the place of occurrence only http://www.judis.nic.in 13/40 CRL.A.Nos.112 and 136 of 2019 after the incident had taken place. In support of this contention, the defence counsel placed strong reliance on the evidence of Chandrasekaran (PW5).
16. Chandrasekaran (PW5), in his evidence, has stated that he hails from Maraiyur village in Nagapattinam District; he is a mason; he knows the appellants and the deceased; he was the mason for the house that was being built by Jayaraman; on 07.11.2016, while he was working in the building, Thulasiraman (A1), Suresh @ Munikutty (A2), Velmurugan (A7), Praveenkumar (A4) and Sathya (A3) and others came to the site (he identified them in the dock); they came there and abused everybody in filthy language in vernacular and called Jayaraman bastard; they broke the entrance door and dismantled the shed; when Jayaraman prevented them, Praveenkumar (A4) pushed Jayaraman to the ground; on the next day between 8.00 and 8.30 a.m. while he was working, Jayaraman poured something over him and committed self- immolation; Jayaraman started rolling over on the ground; seeing that, he and the others doused the fire, called his (Jayaraman's) son and daughter-in-law and sent him (Jayaraman) to the hospital. In the cross-examination by the defence, he was questioned about his alleged statements to the police, but those statements were not proved by confronting them to the Investigating Officer as required under Section 162 Cr.P.C. It was suggested to him that there are so many masons in Chennai and there is no need for a mason from Nagapattinam District to come all the way to work in Chennai, for which http://www.judis.nic.in 14/40 CRL.A.Nos.112 and 136 of 2019 suggestion, he has stated that the engineer under whom he worked, assigned him the construction work in Jayaraman’s house and therefore, he came there. It was suggested to him that he is a hireling, who has been requisitioned by Jayaraman to usurp a public well, which suggestion, he has politely denied.
17. In the opinion of this Court, Chandrasekaran (PW5) is a natural witness, who was employed by the engineer engaged by Jayaraman to do the masonry work in the building under construction in plot No.96A (door No.16A/33). Even if we keep aside the evidence of Manikandan (PW1), Devika (PW2) and Kavitha (PW3) for a moment, on the ground that they are interested witnesses as they being close relatives of the deceased Jayaraman, yet, the evidence of Chandrasekaran (PW5) clearly establishes that on 07.11.2016, the appellants mounted an attack on plot No.96A (door No.16A/33), destroyed a shed there, pushed Jayaraman to ground and abused him in filthy language by calling him a bastard and thereby, terrorised Jayaraman.
18. Now, coming to the arguments relating to the registration of the F.I.R. in Crime No.1799 of 2016 (Ex.P11), it is seen that after the incident at 08.30 a.m. on 07.11.2016, Jayaraman was in a state of shock; only in the evening, he gathered courage to speak against his tormentors and went to the police station along with his son Manikandan (PW1) and lodged a complaint. A reading of the F.I.R. (Ex.P11) clearly shows that the police did not register http://www.judis.nic.in 15/40 CRL.A.Nos.112 and 136 of 2019 the case on 07.11.2016. They accepted the complaint and entered it in the Community Service Register as C.S.R.No.277 of 2016. Had the police registered the case immediately on the complaint and taken action by arresting the appellants, Jayaraman would not have committed suicide. Perhaps, the police would have had a second thought in registering the F.I.R. immediately because, Thulasiraman (A1) and Suresh @ Munikutty (A2) were local lawyers and the police would not have wanted to have any skirmish with them. Even according to the police, the C.S.R. was converted into an F.I.R. only on 08.11.2016.
19. In the complaint that was lodged by Jayaraman, which formed the basis of the registration of the F.I.R., he has vividly stated that he was allotted a plot by the Board on 03.07.1995; he paid the monthly instalments to the Board; he paid the property tax and obtained electricity and water connection; during the 2015 Chennai floods, his hut was severely damaged; so, he shifted his house to door No.26/33, 6th Lane and started building a pucca house in plot No.96A (door No.16A/33); for the last few days, Thulasiraman (A1), Suresh @ Munikutty (A2) and Sathya (A3) frequently came into his property and asked him to hand over a portion of the plot to them; on 07.11.2016, around 9.00 a.m., they all came with certain others, whom he can identify, pushed him down, assaulted his son, demolished the shed, brandished knives and warned him to hand over the plot before the next morning or face http://www.judis.nic.in 16/40 CRL.A.Nos.112 and 136 of 2019 dire consequences; he was scared and terrified; on the assurance given by some well-wishers, he has come forward to give the complaint. This statement of his, which has been recorded in the F.I.R. can also be treated as a dying declaration applying the test laid down by the Privy Council in Pakala Narayana Swami Vs King-Emperor (AIR 1939 PC 47).
20. Learned counsel for the defence placed reliance on the judgment of the Supreme Court in Rajeevan Vs State of Kerala (AIR 2003 SC 1813) and submitted that delay in forwarding the FIR would create a doubt about its very genuineness. However, in Ravinder Kumar and another Vs. State of Punjab [(2001) 7 SCC 690], wherein, the Supreme Court has held that delay in lodging the F.I.R. cannot be fatal always nor prompt lodging of F.I.R. will lead to the inference that the case is genuine. In this case, on 08.11.2016, around 08.30 a.m., Jayaraman committed self-immolation and suffered 100% burns. Therefore, the F.I.R. in respect of self-immolation was registered based on the statement given by Manikandan (PW1) because, Jayaraman was not in a position to write anything. Under such circumstances, when Jayaraman had lost his ability to write after 08.30 a.m. on 08.11.2016, the defence contention that he gave a written complaint in respect of the assault incident of 07.11.2016 only on 08.11.2016, on the face of it appears incredible. For the fault of the police in not registering an F.I.R. immediately on 07.11.2016 on the complaint given by Jayaraman and for the fault of the police in forwarding the http://www.judis.nic.in 17/40 CRL.A.Nos.112 and 136 of 2019 said F.I.R. belatedly to the Magistrate on 09.11.2016, the entire prosecution case cannot be thrown overboard.
21. Learned defence counsel made a very specious submission that the F.I.R. in Crime No.1799 of 2016 for the assault incident should have been altered and the offence under Section 306 IPC should have been added to it, after the death of Jayaraman since they form the same transaction. In support of this contention, defence counsel placed reliance on the judgment of the Supreme Court in T.T.Antony Vs. State of Kerala and Others [AIR (2001) 6 SC 181] and the judgment of the Jharkand High Court in Ajay Paswan Vs. State of Jharkhand (CDJ 2009 JHC 044). This submission is undoubtedly a fanciful one and deserves to be stated only to be rejected. The F.I.R. in Crime No.1799 of 2016 is with regard to the attack that was mounted by the appellants on 07.11.2016. It is not the case of the prosecution that immediately after the assault, Jayaraman committed suicide as forming part of the same transaction.
22. It is the specific case of the prosecution that Thulasiraman (A1) and his group were harassing Jayaraman for quite sometime to forcibly usurp his property and the harassment reached a climax on 07.11.2016, when they attacked and damaged the shed put up by Jayaraman in his plot. After the attack, Jayaraman fell into a sort of depression and committed self-immolation in full public view on 08.11.2016. Even with regard to the self-immolation on http://www.judis.nic.in 18/40 CRL.A.Nos.112 and 136 of 2019 08.11.2016, the police registered a case in Crime No.1804 of 2016 under Section 309 IPC against Jayaraman for attempting to commit suicide. The case was altered to one under Section 306 IPC only after Jayaraman died on 13.11.2016. Therefore, there is absolutely no substance in the contention of the defence that the trial in Crime No.1804 of 2016 for the offence under Section 309 IPC should not have been conducted, while the prosecution in Crime No.1799 of 2016 was pending. The prosecution in Crime No.1799 of 2016 for the incident that took place on 07.11.2016 for the offences under Sections 147, 294(b), 448, 427 and 506(II) IPC in C.C.No.2144 of 2017 is before the IX Metropolitan Magistrate, Chennai, since they are offences triable by a Magistrate, whereas, the case in Crime No.1804 of 2016, which was initially registered for the offence under Section 309 IPC and which was altered to one under Section 306 read with 34 IPC after the death of Jayaraman, was rightly conducted before the Sessions Court. Therefore, the submissions of the defence that Section 306 IPC should have been added to Crime No.1799 of 2016 and that, the trial for the offence under Section 306 IPC should not have been conducted during the pendency of the prosecution in Crime No.1799 of 2016, are clearly without substance and cannot be countenanced.
23. Now, let us examine what Jayaraman has stated in the dying declaration (Ex.P8) given to Manimegalai (PW14), the XX Metropolitan Magistrate, the free English translation of which is as under :
http://www.judis.nic.in 19/40 CRL.A.Nos.112 and 136 of 2019 “For the last 40 days, Munikutty @ Suresh who has studied law in Andhra, Thulasiraman, Praveenkumar, Murali and another person who lives in our street were harrassing me. I have a house in Sastri Nagar 4th Street. There was a small hut in that. I had stacked cement bags there. Munikutty @ Suresh, Thulasiraman, Praveenkumar, Murali and two others, whose names I do not know, were harassing me by saying that the place in which I had put the hut is a public place and that, they need it. Day before yesterday, on 07th, around 10 to 10.30 a.m., I went for having my tea. At that time, mason Kavi telephoned me and said that 10 to 15 persons have come to the place and were removing the hut and damaging the compound. Immediately, I went to the place and found 10 to 15 persons there, removing the hut and breaking the door. I told them not to dismantle the hut, for which, they abused me in filthy language and pushed my aged mother. In that crowd, Sathya was also there. He only demanded that land for him. All the others supported him. They asked him to remove the compound wall plates. Amongst them, there were four advocates including Munikutty. Since they threatened me, I removed the compound wall plates. Thereafter, they left. On the same night, I gave a complaint to the police because of the harassment by Munikutty, Praveenkumar, Sathya and Sukumar of our street. Next day i.e., on 08.11.2016, around 08.30 a.m., I doused myself with petrol and set fire. The people who harassed me more are Sathya, Munikutty and Thulasiraman.
Do you want to say anything more ? (by Magistrate) Nothing more.
Praveenkumar said that he will hurl a bomb on the house, which I am constructing and Thulasiraman said that he will demolish the house with a JCB.
http://www.judis.nic.in 20/40 CRL.A.Nos.112 and 136 of 2019 RTI of Jayaraman I certify that patient was fully conscious and well oriented throughout the period of giving statement” - Sd/- Dr.B.Rajeswari (PW13) Patient was free and fit status of mind throughout the period of dying declaration. - Sd/- M.S.Manimegalai, XX Metropolitan Magistrate (PW14)”
24. The defence counsel placed strong reliance on the following judgments to attack the dying declaration :
i. State of Rajasthan Vs. Yusuf (AIR 2009 SC 2674).
ii. Masaddar Ali and another Vs. State of Assam (1990 CriLJ 1333).
iii. State of Gujarat Vs. Jayrajbhai Punjabhai Varu (AIR 2016 SC 3218).
iv. Sampat Babso Kale and another Vs. State of Maharashtra (CDJ 2019 SC 464).
25. Learned defence counsel contended that in the complaint, which formed the basis of registration of the F.I.R. in Crime No.1799 of 2016 (Ex.P11) with regard to the attack incident that took place on 07.11.2016, Jayaraman has stated that he was pushed to the ground but, in the dying declaration, he has stated that his aged mother was pushed to the ground. Learned counsel for the defence further contended that the mason by name Kavi, whose name figures in the dying declaration has not been examined as a witness and instead, Chandrasekar (PW5), another mason was examined. In the cross- examination, Devika (PW2), W/o.Jayaraman has stated that she and her son http://www.judis.nic.in 21/40 CRL.A.Nos.112 and 136 of 2019 were there for six days in the hospital when Jayaraman was taking treatment there. She has also admitted in the cross-examination that their relative by name Raja, Sub Inspector of Police, also visited Jayaraman in the hospital.
26. Learned defence counsel further contended that Manikandan (PW1) had stated that he had taken Jayaraman to the hospital after he self- immolated, whereas, the Accident Register copy (Ex.P5) shows the name of one Kumaresan, relative and does not bear the name of Manikandan (PW1). Jayaraman has not implicated anybody in the Accident Register, which only shows that he committed suicide on account of some family disputes.
27. Now, this Court proposes to analyse the dying declaration, in the light of the following observation of the Supreme Court in Yusuf (supra) relied upon by the defence :
“6.Though a dying declaration is entitled to great weight, it is worthwhile to note that the appellant has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that http://www.judis.nic.in 22/40 CRL.A.Nos.112 and 136 of 2019 the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. ...“
28. The Supreme Court has nowhere stated in any judgment that the Court should view a dying declaration with suspicion and start off with the presumption that it has been tutored. After the judgment of the Supreme Court in Koli Chunilal Savji Vs. State of Gujarat [(1999) 9 SCC 562] , certification by a doctor about the state of fitness of the declarant is no more a sine qua non. However, in this case, Dr.B.Rajeswari (PW13) has certified that Jayaraman was in a fit state of mind to give statement and a similar certification has been made by Manimegalai (PW14), the Magistrate, who recorded the dying declaration.
29. As alluded to above, it is not the defence case that Jayaraman had a natural death or was murdered. The prosecution have proved beyond cavil that Jayaraman committed self-immolation. It is also not the case of the defence that after committing self-immolation, Jayaraman walked to the hospital and got himself admitted. Evidence on record and dictates of common sense would say that Jayaraman would have been carried by his family members and the locals by ambulance to the hospital. When making entries in the Accident Register (Ex.P5), the duty doctor is not required to write the names of all the persons, who would have accompanied the patient. In this case, the duty doctor has recorded the name of Kumaresan, a relative of http://www.judis.nic.in 23/40 CRL.A.Nos.112 and 136 of 2019 Jayaraman in the Accident Register copy (Ex.P5). Similarly, the patient is not expected to give a full fledged statement to the duty doctor at the time of initial examination nor is the out patient duty doctor expected to listen to the stories of the patient. The duty of a duty doctor at the time of admission is, to make a prima facie examination of the wound and take immediate measures to save the life of the patient.
30. Of course, in a given case, if the patient had made a statement and if that is recorded by the duty doctor in the Accident Register (Ex.P5), such a statement can also be treated as a dying declaration, in the event of the death of the patient. In this case, Dr.Dharmaraj (PW11) has recorded in the Accident Register copy (Ex.P5) that he had examined Jayaraman at 09.15 a.m. on 08.11.2016 and Jayaraman told him that he committed self-immolation at 08.30 a.m. on that day. This statement of Jayaraman is not contrary to the prosecution case. Therefore, the non-examination of Kumaresan, the relative of Jayaraman, whose name figures in the Accident Register copy (Ex.P5) is not fatal to the prosecution case. Similarly, the failure of Jayaraman to give reasons for committing self-immolation and implicating the appellants to the out patient duty doctor is also not fatal.
31. From the evidence of Dr.B.Rajeswari (PW13) and Manimegalai (PW14), XX Metropolitan Magistrate, this Court is satisfied that Jayaraman was http://www.judis.nic.in 24/40 CRL.A.Nos.112 and 136 of 2019 in a fit state of mind to give statement. There is absolutely no material on record to infer that Jayaraman committed self-immolation, because of any alleged family dispute. Jayaraman's dying declaration stands corroborated by the evidence of Chandrasekar (PW5), who has spoken to about the attack on 07.11.2016 by Thulasiraman (A1) and his group. It is further corroborated by the conduct of Jayaraman in lodging a police complaint against Thulasiraman (A1) and his group on 07.11.2016 itself. Even in that complaint, Jayaraman has named Thulasiraman (A1), Suresh (A2), Sathya (A3) and others, as the persons who came to his plot and damaged the shed and pushed him. Of course, though in the dying declaration, he has stated that they pushed his aged mother, that, by itself, will not lead to disbelieve the dying declaration of Jayaraman that he was being constantly harassed by Thulasiraman (A1) and his group.
32. Explanation 1 and illustration (j) to Section 8 of the Indian Evidence Act, 1872, will throw light on the relevancy of the complaint made by Jayaraman to the police with regard to the incident that took place on 07.11.2016.
"Explanation 1 - The word "conduct“ in this section does not include statements, unless those statements accompany and explain acts other then statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
http://www.judis.nic.in 25/40 CRL.A.Nos.112 and 136 of 2019 Illustration (j) - The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant, as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157.“
33. A reading of the above shows that merely a statement simpliciter cannot be brought within the ambit of conduct under Section 8, ibid, but, when the statement accompany and explain acts other than statements, they become relevant. When a victim of a crime goes and gives a complaint to the police, his conduct of going to the police and giving the complaint is relevant under Section 8, ibid. The contents of the complaint are not relevant per se under Section 8, ibid. The contents can be used, either to corroborate or contradict him, whilst he is in the witness box. However, if the victim dies subsequently, as in the present case, the contents of the complaint will be relevant as dying declaration under Section 32(1), ibid, when the cause of that person's death comes into question. Section 32(1), ibid, has two limbs, viz.
(i) when the statement is made by a person as to the cause of his death; (ii) or when the statement is made by a person as to any of the circumstances of the http://www.judis.nic.in 26/40 CRL.A.Nos.112 and 136 of 2019 transaction which resulted in his death. In this case, the complaint statement of Jayaraman in Crime No.1799 of 2016 will fall within the second limb. Thus, in this case, after the death of Jayaraman, his complaint statement to the police on 07.11.2016, which formed the basis of registration of the F.I.R. in Crime No.1799 of 2016, would become relevant in the light of the illustration
(j) to Section 8, ibid (extracted above) both as a conduct and as a dying declaration.
34. Even in the F.I.R. in Crime No.1799 of 2016 (Ex.P11), Jayaraman has stated that Thulasiraman (A1) and his group were frequently coming to the plot, where he was putting up a construction and were threatening him. He has further stated that on 07.11.2016, they came there with others and damaged the shed, brandished knives and warned him to hand over possession to them by next morning and he was terrified at that. This story is in consonance with the complaint (Ex.P1) given by Manikandan (PW1) after Jayaraman committed self-immolation, which formed the basis of registration of F.I.R. in Crime No.1804 of 2016 (Ex.P10) under Section 309 IPC.
35. With regard to the contention of the defence counsel that there are discrepancies in the versions given in the dying declaration and in the F.I.R.s, this Court is of the view that they are too trivial in nature for this Court to attach any serious credence to them. Similarly, the contention whether http://www.judis.nic.in 27/40 CRL.A.Nos.112 and 136 of 2019 Jayaraman was pushed or his mother was pushed or Manikandan (PW1) was pushed by the attackers on 07.11.2016, has to be viewed from the broad probabilities of the case and not by a microscopic examination. This Court is constrained to recall the following sapient passage from the judgment of the Supreme Court in Gangadhar Behera and Others Vs State of Orissa [(2002) 8 SCC 381] :
“Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co- accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. ... ... The maxim “falsus in uno, falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. ... ... Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.“
36. This Court is unable to countenance the submission of the defence that the dying declaration in this case was tutored. When a person suffers injuries and is admitted in the hospital, his relatives will have to be by his bedside to take care of him. Just because one of the relatives of http://www.judis.nic.in 28/40 CRL.A.Nos.112 and 136 of 2019 Jayaraman was a Sub Inspector of Police and that he had visited Jayaraman in the hospital, it will not automatically lead to the inference that the dying declaration was tutored. In this case, as stated above, Jayaraman and his family members have been giving the same story consistently. Supposedly, had there been different version in the F.I.R. in the Crime No.1799 of 2016 and the dying declaration, then, one can suspect the credibility of the dying declaration. In fact, in the cross-examination by the defence counsel, the learned Magistrate has stated that she ensured that none of the relatives was available near the bedside of Jayaraman, when the dying declaration was recorded.
37. In the light of the aforesaid discussion, this Court does not find any credible reason to reject the dying declaration (Ex.P8) given by Jayaraman.
38. The last question that is required to be answered is, whether the act of the appellants would amount to abetment of suicide within the meaning of Section 306 IPC. In this regard, the defence counsel placed reliance on the following judgments :
i. M.Arjunan Vs. State (AIR 2019 SC 43).
ii. Mahendra Singh and Another Vs. State of M.P. [1995 Supp (3) SCC 731].
iii. Gangula Mohan Reddy Vs. State of Andhra Pradesh [(2010) 1 SCC 750].
http://www.judis.nic.in 29/40 CRL.A.Nos.112 and 136 of 2019 iv. Sanju @ Sanjay Singh Sengar Vs. State of M.P. [(2002) 5 SCC 371].
v. State of U.P. Vs. Raj Bahadur and Others [1993 CriLJ 86].
vi. Masaddar Ali and Another Vs. State of Assam [1990 CriLJ 1333].
38.1. In Arjunan (supra), the Supreme Court held that “Having advanced the money to the deceased, the appellant might have uttered same abusive words, but that by itself is not sufficient to constitute the offence under Section 306 IPC.” This is not such a case.
38.2. Mahendra Singh (supra) and Gangula Mohan Reddy (supra) relate to matrimonial suicide. These cases are clearly distinguishable on facts.
38.3. In Sanju (supra), the deceased was himself a drunkard and the accused was his brother-in-law. The deceased was ill treating his wife. In that context, the accused is said to have told the deceased “go and die”. The Supreme Court, in paragraph 12, has held that such statements made in the spur of the moment would not amount to an instigation to commit suicide. The facts in this case is quite dissimilar, and this judgment, therefore, can have no relevance.
38.4. The following passage from the judgment of the Supreme Court in Gangadhar Behera (supra) on the applicability of law of precedents in criminal cases is worth recalling:
"28.There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in http://www.judis.nic.in 30/40 CRL.A.Nos.112 and 136 of 2019 the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases (Padma Sundara Rao Vs. State of T.N. [(2002) 3 SCC 533]. It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial ... ... "
This view has been reiterated by the Supreme Court very recently in Bir Singh Vs Mukesh Kumar [(2019) 4 SCC 197] as follows :
"30.It is well settled that a judgment is a precedent for the issue of law which is raised and decided. It is the ratio decidendi of the case which operates as a binding precedent. As observed by this Court in State of Punjab Vs. Surinder Kumar [(1992) 1 SCC 489], what is binding on all courts is what the Supreme Court says under Article 141 of the Constitution, which is declaration of the law and not what it does under Article 142 to do complete justice."
39. Therefore, this Court is required to appreciate the evidence on record in this case for coming to a conclusion either way. As rightly contended by the defence counsel, a stray statement by the accused exhorting a person to commit suicide or a suicide committed by an oversensitive person by itself cannot be sufficient to sustain a charge under Section 306 IPC.
40. This Court is conscious of the fact that the presumptions under Sections 113A and 113B of the Indian Evidence Act, 1872 cannot be pressed into service in this case. Can a charge of abetment of suicide be established in http://www.judis.nic.in 31/40 CRL.A.Nos.112 and 136 of 2019 non-matrimonial cases? Very recently, the Supreme Court in Ude Singh and Others Vs. State of Haryana [2019 (9) SCALE 831 : 2019 SCC Online SC 924] has laid down a broad test, which is as follows :
"16.1 ... But, on the other hand, if the appellant by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. ... "
41. Bearing this in mind, this Court now proposes to examine the evidence on record on the anvil of the definition of the word “proved” in Section 3 of the Indian Evidence Act, 1872 from the standpoint of a prudent man.
42. The deceased Jayaraman in this case was a slum dweller and his hut in plot No.96A (door No.16A/33) was washed away in the 2015 Chennai floods. This Court can take judicial notice of the fact that the 2015 Chennai floods caused havoc in Chennai and the whole city was in deluge leading to loss of lives and properties. The entire country stood by Chennaites during that crisis. Jayaraman wanted to reconstruct his house in 2016 and therefore, shifted to door No.26/33, 6th Lane, Sastri Nagar and started construction in plot No.96A (door No.16A/33). Jayaraman was aged about 54 years. http://www.judis.nic.in 32/40 CRL.A.Nos.112 and 136 of 2019
43. Now, let us examine the profile of the appellants. Thulasiraman (A1) and his brother Suresh @ Munikutty (A2) are admittedly lawyers by profession. They were living in the same area. It is their defence that Jayaraman had usurped a public well and therefore, as public spirited persons, they intervened. Thus, an ordinary slum dweller is pitted against two advocates and their group. Had Thulasiraman (A1) and his brother Suresh @ Munikutty (A2) desired to retrieve the well from the alleged possession of Jayaraman, the first thing they should have done is to have resorted to judicial remedies. Evidence on record shows that Jayaraman was allotted plot No.96A (door No.16A/33), where there was no well, whereas, the defence witnesses, who were examined by the appellants say that plot No.97 had a well. The layout (Ex.D2) clearly shows that there is no well in plot No.96. The Board has bifurcated plot No.96 and has allotted plot No.96A to Jayaraman. The allotment of plot No.96A (door No.16A/33) was made in the year 1995 and since then, Jayaraman has been living in that plot in a hut. The appellants never took any step to cancel the allotment that was made to Jayaraman by the Board through Court intervention. The work of a lawyer is in his office, Courts and Tribunals, except of course at times when he acts as a lawful arbitrator or mediator. Instead of resorting to the judicial process, by a show of sheer brute force, these two accused lawyers attempted to take possession of the property of the deceased and were harassing him continuously. http://www.judis.nic.in 33/40 CRL.A.Nos.112 and 136 of 2019
44. During the course of arguments, learned defence counsel himself admitted that Jayaraman had even filed a caveat, fearing that these two lawyers may get an order of injunction against him from putting up his house. Instead of resorting to lawful methods, these two lawyers took law into their hands, arranged a group of henchmen and did everything possible to forcibly take possession of Jayaraman's plot.
45. As stated above, the last straw on the camel's back was on 07.11.2016, when they physically mounted an attack and damaged the shed. The police also did not act promptly by registering an F.I.R. on Jayaraman's complaint immediately on 07.11.2016 and instead, registered the case in Crime No.1804 of 2016 only on 08.11.2016. It is Jayaraman, who, in his complaint has stated that Thulasiraman (A1) and his group brandished knives and warned him that they would liquidate his family, if possession is not given the next morning. A helpless slum dweller was pushed to the wall and he fell into a state of fear and despondency on the night on 07.11.2016, as could be seen from the evidence of Manikandan (PW1) and ultimately, decided to end his life on 08.11.2016 at 08.30 a.m. in the plot, which was the subject matter of aggression by the appellants.
46. Thus, the facts and circumstances and the evidence on record in this case, clearly satisfy the test laid down by the Supreme Court in Ude Singh http://www.judis.nic.in 34/40 CRL.A.Nos.112 and 136 of 2019 (supra). This Court has no hesitation in coming to the conclusion that Thulasiraman (A1) and his group had pushed Jayaraman to the brink and had thus, abetted his suicide.
47. Learned defence counsel placed reliance on Masaddar Ali (supra) and contended that when the trial Court had acquitted some of the accused, then the conviction of the rest would be illegal.
48. In the opinion of this Court, Masaddar Ali (supra) does not lay down this proposition as a thumb rule. In that case, the dying declaration was the only piece of evidence against the accused. In this case, apart from the dying declaration of the deceased, there are other evidences viz. the evidence of Manikandan (PW1), Devika (PW2), Kavitha (PW3) and Chandrasekar (PW5). In Gangadhar Behera (supra), the Supreme Court has held as follows :
“15. ... ... Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. ... ... “ Therefore, acquittal of some of the accused will not necessarily mean, that the others should also be acquitted.
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49. Learned defence counsel contended that, after the incident that took place on 07.11.2016, Jayaraman committed suicide only on 08.11.2016 and not immediately and therefore, other factors would have intervened and triggered the suicide. Learned defence counsel further elaborated it by submitting that the Investigating Officer has admitted in the cross-examination that he came on 08.11.2016 in the morning to the house of Jayaraman in connection with Crime No.1799 of 2016 and interrogated Jayaraman, which could have also been a reason for him to commit suicide. The evidence on record shows that, after the incident that took place on 07.11.2016 at 10.30 a.m., Jayaraman was in a state of shock. He did not have the courage to go to the police station and lodge a complaint against Thulasiraman (A1) and his group. Only in the night, he went to the police station and lodged the complaint. The police did not register an F.I.R. and instead, entered the complaint in the community service register and assigned C.S.R.No.277 of 2016. They did not take any action on the complaint.
50. Manikandan (PW1), in his evidence, has clearly stated that after the incident, his father Jayaraman was very sad and frightened because, Thulasiraman (A1) and his group had told him that he should hand over possession the next morning. Hence, there is no material to infer that Jayaraman committed suicide for other reasons.
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51. Now coming to the evidence against each appellant, the names of Thulasiraman (A1), Suresh @ Munikutti (A2) and Sathya (A3) figured in the complaint in Crime No.1799 of 2016 and Crime No.1804 of 2016, the evidence of Chandrasekar (PW5) and in the dying declaration (Ex.P8). Similarly, the role played by Praveenkumar (A4) has been spoken to by Chandrasekar (PW5) and in the dying declaration (Ex.P8). However, the name of Velmurugan (A7) does not figure in the dying declaration (Ex.P8), though his involvement has been spoken to by Chandrasekar (PW5). Similarly, though the name of Murali (A5) figures in the dying declaration, the trial Court had acquitted him, since there was no other corroborative material. Under such circumstances, this Court does not find any infirmity in the judgment and order of the trial Court convicting Thulasiraman (A1), Suresh @ Munikutti (A2), Sathya (A3) and Praveenkumar (A4). In the opinion of this Court, Velmurugan (A7) deserves to be given the benefit of doubt. Coming to the quantum of sentence imposed on A1 to A4, this Court is of the view that interests of justice will be served, if the sentence is reduced from 5 years to 3 years rigorous imprisonment.
52. Thulasiraman (A1) has filed Crl.M.P.No.8302 of 2019 in Crl.A.No.136 of 2019 under Section 391 Cr.P.C. to examine his wife Bhuvaneswari as witness to mark certain materials to show that he was involved in public activities and is a person of sterling character. Suresh @ Munikutty (A2) has filed Crl.M.P.No.7606 of 2019 in Crl.A.No.136 of 2019 under Section 391 http://www.judis.nic.in 37/40 CRL.A.Nos.112 and 136 of 2019 Cr.P.C. to mark the caveat lodged by Jayaraman and some photographs to show that there was a well. Additional evidence at the appellate stage will normally be admitted in cases, where the proposed evidence was not available during trial or though available, the party was not aware of it. That apart, the evidence must pass the test of relevancy. In this case, the evidence which the defence want to adduce were available with them even during the trial and they also do not pass the relevancy test.
53. As regards the petition filed by Thulasiraman (A1), good character of the accused is not relevant in a criminal case, unless the prosecution adduces evidence to show otherwise. Similarly, the caveat petition filed by Jayaraman has been discussed by this Court above. The photographs which the petitioner wants to file now, will not in any manner improve their case because, they have already examined Mr.Shanmugam, I.A.S., Managing Director of the Board as D.W.1 and Arumugam, Head Surveyor of the Board D.W.2 and from their evidence, this Court was able to arrive at the conclusion that a well was there only in plot No.97 and not in plot No.96, which was subdivided as plot No.96A and was allotted to Jayaraman in 1995. Assuming for a moment that there was a well, how does that justify the act of the appellants in taking law into their hands to dispossess Jayaraman?
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54. In view of the above, Crl.M.P.No.8302 of 2019 and Crl.M.P.No.7606 of 2019 will stand dismissed.
55. In the result :
➢ C.A.No.112 of 2019 filed by Velmurugan (A7) is allowed and he is acquitted of all charges. He shall be released forthwith, unless his presence is required in connection with any other case.
➢ C.A.No.136 of 2019 filed by Thulasiraman (A1), Suresh @ Munikutti (A2), Sathya (A3) and Praveenkumar (A4) is partly allowed. While confirming their respective convictions, the substantive sentence of five years rigorous imprisonment alone, is reduced to three years rigorous imprisonment. The sentence of fine and the default sentence stand unaltered. The trial Court is directed to secure the presence of Thulasiraman (A1), Suresh @ Munikutti (A2), Sathya (A3) and Praveenkumar (A4) to undergo the remaining period of sentence, if they are on bail. The Registry is directed to send the original records, if any, to the trial Court forthwith.
To sum up :
➢ C.A.No.112 of 2019 is allowed.
➢ C.A.No.136 of 2019 is partly allowed.
➢ Crl.M.P.No.8302 of 2019 & Crl.M.P.No.7606 of 2019 stand dismissed.
30.08.2019
gya
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CRL.A.Nos.112 and 136 of 2019
P.N. PRAKASH, J.
gya
To
1.The Principal Sessions Judge,
Chennai.
2.The Inspector of Police,
J-5 Shastri Nagar Police Station,
Besant Nagar,
Chennai 600 090.
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar, with a direction to send
Criminal Section, the original records to the
High Court, Madras. trial Court forthwith.
Pre-delivery common judgment in
CRL.A.Nos.112 and 136 of 2019
30.08.2019
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