Madras High Court
Jayapal vs State Represented By
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl. Appeal Nos.263 and 270 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 20.11.2023
Delivered On : 11.12.2023
Coram
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl. Appeal Nos.263 and 270 of 2017
Crl.A.No.263 of 2017
Jayapal .. Appellant/Accused–1
Vs.
State represented by
Inspector of Police,
Chinna Salem Police Station,
Villupuram District,
Crime No.40 of 2016 .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside the
judgment dated 27.04.2017 made in S.C.No.9 of 2017 on the file of the
learned III Additional Sessions Judge, Villupuram @ Kallakurichi.
For Appellant .. Mr.B.Kumarasamy
For Respondent .. Mrs.G.V.Kashthuri
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis
Crl. Appeal Nos.263 and 270 of 2017
Crl.A.No.270 of 2017
Raja .. Appellant/Accused – 2
Vs.
State represented by
The Inspector of Police,
Chinna Salem Police Station,
Villupuram District,
Crime No.40 of 2016 .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside the
judgment dated 27.04.2017 made in S.C.No.9 of 2017 on the file of the
learned III Additional Sessions Judge, Villupuram @ Kallakurichi.
For Appellant .. Mr.A.G.Rajan
For Respondent .. Mrs.G.V.Kashthuri
Additional Public Prosecutor
COMMON JUDGMENT
Both the Criminal Appeals had been filed under Section 374(2) of Criminal Procedure Code, by the First and Second Accused to set aside the judgment dated 27.04.2017 made in S.C.No.9 of 2017 on the file of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi. 2/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017
2. The point of attack by the learned Counsel for the Appellant in Crl.A.No.263 of 2017 are as follows:-
(1) In the original complaint, the intervening night of 02.02.2015 and
03.02.2015 was suppressed.
(2) No identification parade was conducted by the Prosecution to identify the Accused.
(3) By the time P.W-15 went to the Police Station to lodge a complaint, the Accused Nos.1 to 3 mentioned in the charge sheet were detained in Police Station.
(4) As per the complaint under Ex.P-18 preferred by P.W-15 the names of the Accused are mentioned. It is to be noted that the deceased and P.W.15 are drivers in the same lorry transporting goods from Chennai and the lorry was returning towards Chennai. At that time, the lorry was parked at Chinna Salem near the Bakery where P.W-15 and the deceased co-driver went to purchase Bakery items for their family members at Chennai. The deceased is a resident of a village (Nagakuppam) nearby Chinnasalem where he is familiar with the 3/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 employee of the Bakery. The Accused are strangers to P.W-15. While so, the FIR contains the name of the Accused.
(5) As per the evidence of P.W-15/De-facto Complainant the injured was taken to Government Hospital, Kallakurichi. It is a medico-legal case. Therefore, the Accident Register will be available in the Government Hospital, Kallakurichi. As per the evidence of P.W-15 the injured was taken to Government Hospital, Kallakurichi then taken to Government Hospital, Athur and subsequently, to Mohan Kumaramangalam Medical College Hospital at Salem. On the way from Salem Government Mohan Kumaramangalam Medical College Hospital, the injured suffered seizures and died on the way to Government Hospital, Athur. The body was taken to Government Hospital, Kallakurichi (Refer to PM Report). Therefore, as per the arguments of the learned Counsel for the Appellant in Crl.A.No.263 of 2017, the deceased died due to lack of medical care within the golden hour. After the alleged incident, the injured was taken by P.W-15 to various hospitals and due to the shifting of the injured he died which cannot be fixed on the 4/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 Accused in this case. The conviction of the Accused Nos.1 to 3 by the learned Sessions Judge is found perverse as the learned Judge had lost sight of the fact that the evidence available through P.W-15 itself provides that injured was shifted to three hospitals in the intervening night resulting in the death of the injured – co-driver of P.W-15. (6) It is true that it was a sudden provocation which resulted in the Accused 1 to 3 alleged to have hit the injured person – co-driver of P.W-15 when he intervened when the Accused 1 to 3 picked up quarrel with P.W-15 and assaulted him.
3. The learned Counsel for the Appellant in Crl.A.No.263 of 2017 submitted that as per the evidence of P.W-15 who was the co-driver along with the deceased on the same lorry, as per his deposition before the trial Court immediately after the Deceased suffered injury in the alleged occurrence, the deceased was taken to nearby Government Hospital at Kallakurichi from where he was referred to Athur, from there they had taken him to the Mohan Kumaramangalam Medical College and Hospital at 5/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 Salem. The injured was taken back from Salem Medical College Hospital and on the way he died of seizures. Therefore, the injured was taken to three different hospitals within a short time due to which he died. The Prosecution had not placed all the materials available before the trial Court. There was suppression of material facts in the intervening night between 02.02.2016 and 03.02.2016. P.W-15 lodged the complaint. It is to be noted that Accused are strangers to the Complainant. While so, the Complainant mentioned about the names of the Accused and the F.I.R contains the names of the Accused. The F.I.R under Ex.P-18 was registered only by 9 a.m. Therefore, evidence before the trial Court that P.W-15 had lodged complaint only after the owner of the lorry reached the Police station on the next day morning. Therefore, there was delay in filing F.I.R in lodging the complaint. The earliest complaint was not placed before the trial Court. There was suppression of materials before the trial Court by the Prosecution. Earliest document in the case arising on medical related case has to be come from the Kallakurichi Government Hospital, which was not placed before the trial Court. The person who wrote the complaint was the owner of the lorry one 6/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 Palanikumar, who was not at all examined by the Prosecution. There were very many loopholes in this case as projected before the trial Court. It is to be noted that the Accused were strangers to the Complainant. There is evidence before the Court during trial through P.W-15/Complainant that he had seen the Accused only after the occurrence. The Investigation officer had not conducted any identification parade to identify the Accused.
4. It is further submitted that P.W-1 to P.W-4 before the trial Court were the employees of the Bakery from where the P.W-15 and the Deceased were alleged to have purchased bakery items on the fateful night. Also in the cross examination, P.W-15 would admit, by the time he went to lodge the complaint, the Accused-1 to Accused-3 were detained in the Police Station before ever complaint was received by P.W-16, the Sub-Inspector of Police, Chinna Salem Police Station. The Accused were secured by the Police. It was the case of the defence that immediately after the occurrence, the villagers from the nearby village protested by holding road block. Therefore the Police was forced to act on to prevent further deterioration of law and 7/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 order situation. The persons who were not at all involved in this case were arrested to satisfy the agitators and the case had been investigated and laid Final report before the Court fixing the Accused for occurrence, for which there were too many doubts raised by the defence in the prosecution case. The learned III Additional Sessions Judge, Villupuram @ Kallakurichi had convicted the Accused based on the evidence of P.W-15 alone which is perverse. Therefore the same is to be set aside.
5. The learned Counsel for the Appellant in Crl.A.No.263 of 2017 invited the attention of the Court to the evidence of P.W-16 and P.W- 17/Investigation Officer in the cross examination and P.W-18 as the Investigation Officer who laid the final report.
6. The learned Counsel for the Appellant in Crl.A.No,270 of 2017 submitted that the Appellant was convicted for the charges under Section 341 and 323 of I.P.C.
8/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017
7. The learned Counsel for the Appellant in Crl.A.No.270 of 2017 invited the attention of the Court to the charges framed by the learned Trial Judge and the prosecution witnesses, P.W-1 to P.W-18. The submission of the learned Counsel for the Appellant that the alleged incident as per the prosecution case was that on 02.02.2016 by around 10.15 p.m. When the complainant/P.W-15 and the Deceased were proceeding towards Chennai from Salem, they stopped the lorry at Chinna Salem. The deceased came to the rescue of Complainant/P.W-15 who was assaulted by three persons while crossing the road. At that time, when the deceased intervened, the Accused persons were alleged to have hit the Deceased with stone and he had suffered injuries. He was bleeding from his nose. Therefore he was taken by the Complainant/P.W-15 to the nearby Government Hospital at Kallakurichi. Subsequently he was taken to the Government Hospital, Athur from where he was referred to Government Medical College at Salem and on the way, he died.
8. It is the submission of the learned Counsel for the Appellant that 9/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 the deceased died due to seizures. The deceased as well as the Complainant and the Accused were strangers. In the F.I.R, the names of the Accused had been mentioned. The Deceased alleged to have died due to lack of medical care, as he was taken by P.W-15/Complainant to three different hospitals within a short time. Therefore only he died and not due to the alleged assault of the Accused .
9. Also the learned Counsel for the Appellant invited the attention of the Court to the judgment of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi in S.C.No.9 of 2017 dated 27.04.2017. Particularly in the concluding Paragraphs of the judgment, “In the result, this Court is of the opinion that, the prosecution has failed to prove the charges u/s.294(b) and 323 of IPC against the accused 1 to 3 beyond all reasonable doubt and accordingly, the accused 1 to 3 found not guilty u/s. 294(b) and 323 of IPC and acquitted from the said charges, in terms of Sec.235(1) of Cr.P.C., and the prosecution has clearly established the charge u/s.341 of IPC against the accused 1 to 3 and Sec.323 of IPC against the 2nd and 3rd accused and Sec.304(I) of IPC against 10/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 the 1st accused beyond reasonable doubt and accordingly, the accused 1 to 3 found guilty u/s.341 of IPC and the 2nd and 3rd accused found guilty u/s. 323 of IPC and the 1st accused found guilty u/s.304(I) of IPC and the accused 1 to 3 are convicted u/s.341 of IPC and sentenced to undergo simple imprisonment of one month and to pay a fine of Rs.500/-, in default, to undergo further period of simple imprisonment of 15 days.” Therefore, he seeks to set aside the judgment of conviction recorded against the Appellant in Crl.A.No.270 of 2017.
10. By way of reply, the learned Additional Public Prosecutor submitted that P.W-18 had cogently proved the case of the Prosecution. The learned Additional Public Prosecutor would submit that P.W-1 to P.W-4 were employees of the Bakery had clearly stated the names of the Accused. Also, the learned Additional Public Prosecutor submitted in the cross examination, P.W-15 himself had stated that at the time of the attack of the Deceased by the Accused-1 to Accused-3, each of them calling other Accused's name. Therefore he had given out the names of the Accused in the Complaint. Also, the learned Additional Public Prosecutor denied the 11/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 submission of the learned Counsel for the Appellant in Crl.A.Nos.270 and 263 of 2017 stating that there had been suppression of materials.
11. The learned Additional Public Prosecutor invited the attention of the Court to the Ex.P-24 which was the copy of the Accident Report copy of the Government Hospital, Kallakurichi marked through P.W-18. The Investigation officer had laid the Final Report. Also the Additional Public Prosecutor invited the attention of the Court to the evidence of the Doctor P.W-9 who conducted autopsy on the body of the deceased. The Doctor had denied the suggestion of the Prosecution in his cross examination also.
12. The learned Additional Public Prosecutor invited the attention of the Court to the discussion of the evidence by the learned III Additional Sessions Judge, Villupuram @ Kallakurichi regarding the defence of the Accused. The learned III Additional Sessions Judge, Villupuram @ Kallakurichi had rejected the defence of the Accused and arrived at a conclusion based on the proper appreciation of the evidence through P.W-1 12/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 to P.W-8 and Ex.P-1 to Ex.P-24 and M.O-1 to M.O-8.
13. It is the further submission of the learned Additional Public Prosecutor that the learned III Additional Sessions Judge, Villupuram @ Kallakurichi had on proper appreciation of evidence arrived at a conclusion, the same cannot be set aside even though the Appellate Judge may arrive at different conclusion on the same set of materials. This appeal lacks merit and has to be dismissed. The judgment of conviction recorded by the learned III Additional Sessions Judge, Villupuram @ Kallakurichi is to be confirmed.
14. By way of rejoinder, the learned Counsel for the Appellant in Crl.A.No.263 of 2017 would submit in the case before arriving at a conclusion of confirming the judgment of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, the Court may instead of sentencing the Accused to imprisonment may order release of the Accused on Probation of Offenders Act, based on the ruling of the Hon'ble Supreme Court in 1976 13/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 Criminal Law Journal 1987 Page 1 in the case of Nusakhan -Vs- State of Maharashtra.
15. Also the learned Counsel for the Appellant in Crl.No.263 of 2017 relied on the judgment of the Court in Crl.A.No.16 of 2019 wherein a similar case, where on sudden provocation, the Appellants in the Appeal were alleged to have stabbed the deceased. This Court had in the light of the ruling 1976 Criminal law Journal 1987 had released the Appellants on Probation. Therefore the learned Counsel for the Appellant seeks in case of confirming the judgment, release the Appellant on probation.
Point for consideration:
Whether the judgment of conviction and sentence of imprisonment imposed on the Accused 1 and 2/Appellants herein made in S.C.No.9 of 2017 on the file of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, dated 27.04.2017 is to be set aside as perverse?14/25
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16. On consideration of the submission of the learned Counsel for the Appellants and on perusal of the documents and the judgments made in S.C.No.9 of 2017 on the file of the learned III Additional Sessions Judge, Villupuram at Kallakurichi, the submission of the learned Counsel for the Appellant in Crl.A.No.263 of 2017 cannot be accepted in the light of the evidence recorded before the Trial Court. From the available evidence before the Trial Court, it is found that the deceased was a co-driver along with P.W-
15. They used to take a trip transporting materials to Salem. Whenever they used to visit Salem for the transport of goods or fuel, they used to take petroleum tankers also. On the fateful day, a petroleum tanker was driven by P.W-15 and the deceased. Whenever they used to transport goods to Salem on their way returning from Salem, they used to stop the vehicle near this particular Bakery Chennai Cake Shop at Chinna Salem and purchase eatables for their family members. On the fateful day, 02.02.2016, they had purchased similarly. When P.W-15 was crossing the road, the Accused in this case, 1 to 3, drove the two-wheeler bearing Registration No.TN.32-AZ- 8220 and hit P.W-15. There was an attack. By which time, A1 to A3 15/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 gathered to attack P.W-15. Therefore, the deceased in this case intervened as he is from that area. A1 to A3 attacked the deceased. By which time, A1 in this case, Jayapal, is alleged to have picked up a stone roughly weighing 1 or 2 kilograms and hit on the head of the deceased, by which the deceased lost balance and fell down. The passers-by prevented further attacks. They took injured to the roadside, by which time he was bleeding from the nose and mouth. P.W-15 took him to Kallakurichi Government Hospital. Again, he was taken to the Government Mohan Kumaramangalam Medical College Hospital, Salem, and again to Attur Hospital. He died in Attur. The evidence of P.W-15 indicates that the co-driver, the deceased, suffered seizures, which made him take the injured to a better treatment to Government Mohan Kumaramangalam Medical College Hospital, Salem. Seizures indicate damage to the brain caused by the attack of the Accused–1/Jayapal.
17. The submission of the learned Counsel for the Appellant in Crl.A.No.263 of 2017 (Jayapal) that the Accused in this case are strangers. They were framed by the Police as the villagers of Chinnasalem indulged in 16/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 blocking traffic on Chennai High Road near Chinnasalem, forcing the Police to arrest “someone” can be considered only as a defence. From the evidence of P.W-7 in this case, particularly, P.W-15 and the employees of the Bakery, it is found that the injured deceased was a person hailing from the nearby village near Chinnasalem. That is why, the villagers protested against the conduct of the Accused resulting in the death of a person from their village (the deceased). Also, from the evidence of P.W-1 to P.W-4 (employees of the Bakery), it is found that the employees of the Bakery were familiar with the injured person and the Accused. Whereas the Accused are strangers to the injured victim. But the identity of the Accused had been clearly stated by P.W-15, who stated that at the time of the attack, the Accused called each other by names. Therefore, he had mentioned the names of the Accused in the complaint itself. Therefore, the submission of the learned Counsel for the Appellant that the Accused are strangers and they were framed falsely by the Police is found unacceptable and hence, rejected. On sudden provocation, they are alleged to have hit the deceased and therefore, they are entitled to acquittal. The submission that the judgment of the learned Sessions Judge 17/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 convicting the Accused under Section 304(2) of IPC is perverse is also found unacceptable and hence, rejected. The submission of the learned Counsel for the Appellant is not found acceptable in the facts and circumstances of this case that the judgment of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi is not considered perverse. The deceased died only due to injury caused on the vital part of the body, head and brain. The injured suffered bleeding from nose and mouth. Also he suffered seizures. Those are the result of injuries to the brain caused by the attack by the Accused on the head of the injured using a cement slab picked up from the road side. Therefore, the learned III Additional Session Judge, Villupuram @ Kallakurichi had on proper appreciation of evidence convicted the Accused for an offence under Section 304(II) of IPC. It cannot be considered as perverse. Therefore, the argument of the learned Counsel for Appellant that the judgment is perverse is rejected. There are circumstances that the golden hour was lost by transporting the gravely injured patient from one hospital to another, which was lost sight of, by the learned Sessions Judge by appreciating the evidence. Anyhow, the result of the death 18/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 is the injury caused by the Accused.
18. Considering those aspects it is found that even for argument sake, if the Accused 1 to 3 alleged to have hit the injured causing injury with a piece of cement slab available on the road side near the vicinity of the occurrence and the injured having suffered bleeding injury in the nose and ears, he ought to have been treated in the same hospital. Considering the fact that he was injured. Instead he was shifted from one hospital to another hospital thereby ample time was lost in treating the injured, for which, the Accused 1 to 3 cannot be held liable for the death of the injured.
19. In the light of the above discussion, Crl.A.Nos.263 of 2017 is partly allowed thereby the judgment of conviction recorded by the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, in S.C.No.9 of 2017, dated 27.04.2017 is modified in respect of sentence alone as against first Accused/Appellant in Crl.A.No.263 of 2017. Instead of sentence of 7 years, it is reduced to three years on condition that he had to deposit Rs.2 19/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 lakhs before the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, within two weeks. The Accused shall be released on probation, considering the extraordinary circumstances available in this case, for a period of three years on executing a bond for good conduct. He shall be under probation by the District Probation Officer. The Investigation Officer in this case, Inspector of Police, Chinna Salem Police Station, Villupuram District, shall consult with the District Probation Officer, and coordinate with the District Probation Officer, and supervise the Accused/Appellant, Jayapal. The Accused/Appellant is released on probation after executing a bond for Rs.10,000/- (Rupees Ten Thousand) with two sureties, each for a like sum to the satisfaction of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi. The learned Sessions Judge shall warn the Accused that if he indulges in any criminal activities, the bond executed by him will be cancelled and he will be detained in prison to undergo imprisonment for 7 years. Also, he shall deposit Rs.2 lakhs on the file of the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, in S.C.No.9 of 2017 dated 27.04.2017. Also, the learned III Additional 20/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 Sessions Judge, Villupuram @ Kallakurichi, is directed to issue notice to the family of the victim through P.W-15 to the wife of the deceased and the amount shall be disbursed to the wife of the deceased as compensation. She shall be summoned through the Inspector of Police, Chinna Salem Police Station.
20. In the result, Crl.A.No.270 of 2017 is allowed. The judgment of conviction recorded by the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, in S.C.No.9 of 2017, dated 27.04.2017 is set aside in respect of second Accused/Appellant in Crl.A.No.270 of 2017.
21. The District Legal Services Authority attached to the Principal Sessions Court, Villupuram, also shall issue notice to the victim of the crime, the widow of the deceased (Iyyasamy) through the Inspector of Police, Chinna Salem Police Station, Villupuram District, conduct enquiry regarding the same under the Victim Compensation Act and consider granting compensation to the minimum of Rs.3,00,000/- (Rupees Three lakhs only). 21/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 The enquiry shall be conducted and disposed of within a reasonable period of two months by the District Legal Services Authority.
22. The first Accused/Appellant in Crl.A.No.263 of 2017 shall deposit Rs.2 lakhs within a period of two months from the date of receipt of copy of this order or from the date of uploading of this order on the website of this Court, failing which all these conditions automatically have to be cancelled and the learned III Additional Sessions Judge, Villupuram @ Kallakurichi, shall detain the first Accused to undergo the period of imprisonment.
23. The Legal Services Authority attached to the Court at Kallakurichi shall summon the legal heirs of the deceased through the Inspector of Police, Chinnasalem Police Station in Crime No.40 of 2016 as per the Victim Compensation Act.
24. The District Collector, Kallakurichi District is requested to provide compensation to the legal heirs of the deceased after holding enquiry 22/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 by the Legal Services Authority concerned under the Victim Compensation Act for the death of the deceased. Considering the plight of the driver of a vehicle, who met with his death in the unfortunate incident, the family of the victim has to be compensated under the Victim Compensation Act.
11.12.2023 cda/srm Internet:Yes/No Index:Yes/No Speaking/Non-speaking order To
1.The III Additional Sessions Judge, Villupuram @ Kallakurichi.
2.The Additional Public Prosecutor, Madras High Court, Chennai.
23/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 SATHI KUMAR SUKUMARA KURUP, J., cda/srm Judgment made in 24/25 https://www.mhc.tn.gov.in/judis Crl. Appeal Nos.263 and 270 of 2017 Crl. Appeal Nos.263 and 270 of 2017 11.12.2023 25/25 https://www.mhc.tn.gov.in/judis