Madras High Court
Dasarathan vs State Rep By on 19 October, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.210 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.10.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.210 of 2018
Dasarathan ... Appellant/A1
Vs.
State rep by
Inspector of Police,
Pernambet Police Station,
Vellore
crime No.237 of 2016 ... Respondent
PRAYER:
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure, to aside the conviction and sentence imposed upon the appellant by
the Principal Sessions Judge, Vellore, Vellore District in Sessions Case No.113
of 2016 and to allow the appeal.
For Appellant : Mr.V.Karthik,
Senior Counsel
for Mr.A.E.Ravichandran
For Respondent : Mr.A.Gopinath,
Government Advocate(crl.side)
https://www.mhc.tn.gov.in/judis
1/14
Crl.A.No.210 of 2018
JUDGMENT
This criminal appeal is directed as against the judgment passed in SC.No.113 of 2016 on the file of the learned Principal Sessions Judge, Vellore, Vellore District thereby convicted the appellant for the offence punishable under Section 304(Part II) of IPC.
2. The case of the prosecution is that the first accused is the son of the second accused. Both are residing at Sarangal Village, Masigam Post, Pernambut Taluk, Vellore District. The father of the first accused and the father of the deceased are brothers. There was enmity previously among them. While being so, on 16.04.2016 at about 04.30 p.m., when the defacto complainant was proceeding through the ridge belong to the second accused, they scolded him with filthy language and also torn his shirt. It was informed to his family members and at about 05.30 p.m. on the same day, the deceased, the defacto complainant along with their mother went to the house of the accused persons and questioned about the act of the second accused. Both the accused enraged over this and with the intention to the cause death, they pelted stones on the deceased. The first accused pelted stones on the instigation of the second accused to commit murder by intentionally and knowingly, caused death of the https://www.mhc.tn.gov.in/judis 2/14 Crl.A.No.210 of 2018 deceased by forcibly beat his head with half brikelin by saying 'die'. Again, he beat on his head and chest. Immediatly, he was taken to hospital and while he was on the way to hospital, he passed away. On the complaint lodged by the defacto complainant, the respondent registered FIR in crime No.237 of 2016 for the offence punishable under Section 302 of IPC r/w Section 114 of IPC. After completion of investigation, the respondent filed final report and the same has been taken cognizance by the trial court in SC.No.113 of 2013.
3. On the side of the prosecution, they examined PW1 to PW15 and marked Ex.P1 to Ex.P16. The prosecution also produced material objects i.e. MO.1 to MO.6. On the side of the defence, they examined DW1 and marked Ex.D1 and Ex.D2. On perusal of oral and documentary evidence, the trial court found the appellant guilty for the offence under Section 304 (Part II) of IPC and sentenced him to undergo rigorous imprisonment for five years. The second accused was found not guilty and acquitted her. Aggrieved by the same, this criminal appeal has been filed.
4. The learned Senior Counsel appearing for the appellant would submit that the defacto complainant and the deceased along with their mother went to the house of the appellant. Therefore, there was absolutely no motive or https://www.mhc.tn.gov.in/judis 3/14 Crl.A.No.210 of 2018 intention to do away the life of the deceased. The word 'die' uttered by the appellant was implicated to strengthen the case of the prosecution. PW1 to PW3 are interested eye witnesses. PW4 to PW7 are independent witnesses. They categorially deposed that at the time of occurrence, both the parties i.e. the deceased family and the appellant family pelted stones on each other, due to which the deceased sustained head injury and chest injury, thereby he died. Admittedly, the deceased and his family members i.e. PW1 to PW3 went to the house of the appellant and they only pelted stones on the appellant. In order to protect himself, the appellant pelted stones on them. When it being so, the prosecution completely suppressed the said fact and laid final report only as against the appellant.
4.1 He further submitted that no charge was framed as against the deceased. In order to prove the same, the appellant examined DW1 who treated the appellant's mother for the injury sustained in the occurrence and marked medical document as Ex.D1. She also pointed out that PW4 to PW6 categorically deposed that the deceased also pelted stones on the appellant's mother and due to which she sustained injuries. In support of his contention, he https://www.mhc.tn.gov.in/judis 4/14 Crl.A.No.210 of 2018 relied upon the judgment of the Hon'ble Supreme Court of India in the case of Lakshmi Singh and Others Vs. State of Bihar reported in (1976) 4 SCC 394.
4.2 There is no evidence on record to show that a wordy quarrel occurred at 4.30 p.m. on 16.04.2016 between PW1 and A2, and PW1, PW2, PW3 and the deceased have assumed the role of aggressors by going to the house of A1 to pick up quarrel. As per the evidence of PW4 and PW5, there was throwing of bricks by both the parties, wherein A2 had sustained bleeding injuries on her right arm which is also admitted by PW1, PW2, PW4. However, PW15 has not conducted any investigation regarding the same. There is inconsistency regarding the version of the complaint being registered and the non examination of the scribe of the complaint is fatal to the prosecution. Further, the FIR was sent to the concerned Magistrate only on the next day i.e. 17.04.2016 at 12.30 p.m. Though the deceased was declared dead by PW9 as early as 6.00 p.m., the deceased was not taken to the hospital but was taken home and the complaint was given only after two hours. As per PW1, on 16.04.2016, he saw the accused in the police station, after the case was registered and the body of the deceased was taken, whereas PW15 has shown the arrest of A1 and A2 only on 17.04.2016 at 12.00 p.m. which only shows https://www.mhc.tn.gov.in/judis 5/14 Crl.A.No.210 of 2018 that the alleged confession and recovery are all stage managed by the prosecution. There is total contradiction and inconsistency in the deposition of PW1, PW2, PW3 as to whether A1 had hit the deceased with a brick on his forehead and chest or whether he threw the brick which fell on the deceased. No conclusive opinion given by PW14 on the injuries sustained by the deceased and whether it was sufficient to cause death of the deceased.
5. Per contra, the learned Government Advocate(crl.side) appearing for the respondent / police submitted that in order to prove the charge for the offence under Section 302 of IPC, the prosecution examined PW1 to PW15 and marked Ex.P1 to Ex.P16. The prosecution also produced material objects i.e. M.O.1 to M.O.6. PW1 to PW3 were eye witnesses to the occurrence. The brother of the deceased was examined as PW1, who categorically deposed that when he was proceeding to his house from his land, the second accused scolded him with filthy languages and also torn his shirt. It was informed to his family members and all went to the house of the appellant to question the same. Both the accused i.e. A1 and A2 enraged over this and in furtherance with common intention to do away the life of the deceased, the first accused, on the instigation of the second accused, by intentionally pelted half brikelin on the head of the deceased. He also hit the chest of the deceased by the same half brikelin, due to https://www.mhc.tn.gov.in/judis 6/14 Crl.A.No.210 of 2018 which the deceased sustained injuries and on the way to hospital, he died. It is also corroborated by PW2 to PW6. The doctor who conducted autopsy on the deceased was examined as PW14 and he found injuries on the deceased and the injuries are corroborated the evidence of PW1 to PW6. However, there was no material to attract the offence under Section 302 of IPC and as such, the trial court rightly convicted the appellant for the offence under Section 304(Part II) of IPC and acquitted the second accused.
6. Heard, Mr.V.Karthik, learned Senior Counsel appearing for the appellant and Mr.A.Gopinath, learned Government Advocate (crl.side) appearing for the respondent / police.
7. The deceased and the appellant are cousin brothers. There was previous enmity between them. On the date of occurrence, when the PW1 was proceeding in front of the house of the appellant, the appellant's mother scolded him and also torn his shirt. It was informed to the family members of PW1 and all went to the house of the appellant to question the same. When it was questioned to the appellant and his mother, there was a quarrel between them. According to PW1 to PW3, the appellant on the instigation of his mother, had beaten the deceased on his head by half brikelin. Again, by the same brikelin, https://www.mhc.tn.gov.in/judis 7/14 Crl.A.No.210 of 2018 he also beat the deceased on his chest. Therefore, the deceased sustained head injury as well as injury on his chest, due to which he died.
8. The prosecution also examined PW4 to PW6 who were also eye witnesses to the occurrence. On perusal of their evidence, revealed that when the deceased and PW1 questioned about the dispute, the appellant pelted stones on the forehead of the deceased and chest. Immediately, he was taken to hospital. They further deposed that at the time of occurrence, the house of the appellant was locked. Due to the said occurrence, the second accused i.e. the mother of the appellant also sustained injury. Both the parties pelted stones against each other. It is also corroborated by PW6 and PW7. The relevant portion of depositions of PW4, PW5 & PW7 is extracted hereunder:
PW4 rk;gtk; ele;jnghJ 1k; vjphpapd; tPl;L nfl;L g{l;lg;gl;L ,Ue;jJ/ nfl;Lf;Fk;. rz;il ele;j ,lj;jpw;Fk; ,ilna 20 mo J}uk; ,Uf;Fk;/ 2k; vjphpapd; tyJ KH';ifapy; mog;gl;L uj;jf;fhak; Vw;gl;oUe;jJ/ 2k; vjphpaplk;. vg;nghJ mog;gl;lJ vd;gij ehd; nfl;ftpy;iy/ 2k; vjphpf;F vg;nghJ mog;gl;lJ vd;gJ bjhpahJ/ J}h;thrYf;F uj;jf;fhak; Vw;gltpy;iy/ v';fsplk; nghd; ,Ue;jJ/ rz;il ele;jjhf ngh;zhk;gl;L https://www.mhc.tn.gov.in/judis 8/14 Crl.A.No.210 of 2018 fhty; epiyaj;jpw;F nghd; vJt[k; bra;atpy;iy/ ,uz;Lg[wKk; fy; tPrpf;bfhz;lhh;fs;/ vt;tst[ J}uj;jpy;
,Ue;J tPrpdhh;fs; vd;W bjhpahJ/
PW5
,U jug;gpdUk; xUth; kPJ xUth; fw;fis
nghl;Lf;bfhz;lhh;fs;/ 2k; vjphpf;F tyJ KH';ifapy;
uj;jf;fhak; Vw;gl;lij ehd; ghh;ff; tpy;iy/ 2k; vjphpf;F mog;gl;lij ehd; ghh;ff; tpy;iy/ 10 mo J}uj;jpy; ,Ue;j fy;iy vLj;J vwpe;jhh;/ nghyprhh; tprhhpf;Fk;nghJ 1k; vjphp fy;iy vLj;J tprpwp nghl;ljhf brhy;ypapUf;fpnwd;/ vd;dplk; bry;nghd; ,Ue;jJ/ rk;gtj;ij gw;wp nghyprhUf;F jfty; vJt[k; bjhptpf;ftpy;iy/ PW7 vjphpapd; tPlo; w;F nfl;ow;F btspapy; jhd; rz;il ele;jJ/ nfl;L g{l;lg;gl;L ,Ue;jjh vd;gij ehd; ghh;ff; tpy;iy/ 2k; vjphpf;F fy; mog;gl;L uj;jf;fhak; Vw;gl;L ,Ue;jJ/ gpwF kWj;J ehd; mij ghh;ff; tpy;iy/ 5 mo J}uj;jpy; ,Ue;J fy;iy vwpe;Jf;bfhz;lhh;fs;/ fhrpf;Fk;. mth;
mk;kht[fF
; k; mog;gl;lJ/ J}h;thrY kidtpf;Fk; fhak;
Vw;gl;lJ/ fhrpf;F jiyapy; mog;gl;lJ/ gpnukhit fPnH
js;sptpl;lhh;fs;/ mog;gl;ljh vd;gJ bjhpahJ/ ehd; tUtjw;F https://www.mhc.tn.gov.in/judis 9/14 Crl.A.No.210 of 2018 Kd;ng 2k; vjphpf;F mog;gl;L ,Ue;jJ/ 1k; vjphp. J}h;thrYit fy;yhy; moj;jhh;/
9. Thus, it is clear that both the parties pelted stones against each other, due to which the deceased sustained head injury and died. It is also corroborated by DW1, who treated the second accused i.e. the mother of the appellant who deposed that she sustained injury. The medical report was also marked as Ex.D1. However, prosecution completely suppressed the said fact.
10. In this regard, the learned Senior Counsel appearing for the appellant relied upon the judgment in the case of Lakshmi Singh and Others Vs. State of Bihar reported in (1976) 4 SCC 394, wherein the Hon'ble Supreme Court of India held as follows:
12. ........ Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the https://www.mhc.tn.gov.in/judis 10/14 Crl.A.No.210 of 2018 origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. .......
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above.
11. Thus it is clear that the prosecution failed to explain the injuries on the second accused. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosedition one. That apart, even according to the case of the prosecution, the deceased and PW1 to PW3 went to the house of the appellant and started quarrel with them. However, the trial court without considering the facts and circumstances, convicted the appellant for the offence under Section 304(Part II) of IPC though the prosecution failed to prove the case beyond any doubt and as such, the https://www.mhc.tn.gov.in/judis 11/14 Crl.A.No.210 of 2018 appellant is entitled for acquittal for the offence punishable under Section 304(Part II) of IPC.
12. Accordingly, this Criminal Appeal is allowed and the conviction and sentence imposed by the Principal Sessions Judge, Vellore, Vellore District in SC No.113 of 2016 dated 14.03.2018 for the offence under Section 304 (Part II) of IPC are hereby set aside. The appellant/first accused is acquitted of all charges in SC No.113 of 2016 on the file of the learned Principal Sessions Judge, Vellore, Vellore District. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.
19.10.2022 Speaking/non-speaking Index : Yes/No Internet : Yes lok https://www.mhc.tn.gov.in/judis 12/14 Crl.A.No.210 of 2018 https://www.mhc.tn.gov.in/judis 13/14 Crl.A.No.210 of 2018 G.K.ILANTHIRAIYAN, J.
lok To
1.The learned Principal Sessions Judge, Vellore, Vellore District
2.Inspector of Police, Pernambet Police Station, Vellore
3.The Public Prosecutor, High Court of Madras Crl.A.No.210 of 2018 19.10.2022 https://www.mhc.tn.gov.in/judis 14/14