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304(ii) IPC. In the result, this Criminal Appeal is partly allowed with the above modifications.         We place on record our appreciation to Mr.M.Dhamodharan (Enrl.No.691/1983) and direct the Tamil Nadu State Legal Services Authority, Chennai, to pay him remuneration of Rs.10,000/- as a special case.   [P.N.P., J.]            [T.K.R., J.]                                                                                              27..09..2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgement Reserved on       : 16..09..2022

Judgement Pronounced on : 27..09..2022

Coram

The Honourable  Mr. Justice P.N.PRAKASH and

The Honourable Mr. Justice RMT.TEEKAA RAMAN

Criminal Appeal No.641 of 2019

Mani

….. Appellant/Sole Accused

-VersusState Rep. by its

Inspector of Police,

B-2, R.S.Puram Police Station Coimbatore.

[Crime No.37 of 2018]

…. Respondent /Complainant

 

Appeal filed under Section 374(2) of Cr.P.C. against the judgement and order of conviction and sentence dated 11.01.2019 made by the learned I Additional Sessions Judge, Coimbatore, in S.C.No.166 of 2018.

For Appellant           : Mr.M.Dhamodharan,

Legal Aid Counsel

For Respondent        : Mr.M.Babu Muthumeeran,

Addl. Public Prosecutor

JUDGEMENT

P.N.PRAKASH, J.

Challenging the judgement of conviction and sentence dated

11.01.2019 made by the learned I Additional Sessions Judge, Coimbatore, in

S.C.No.166 of 2018, convicting the appellant for offence under Section 302 IPC and sentencing him to undergo Imprisonment for Life and to pay a fine of Rs.1000/-, in default of payment of fine to undergo simple imprisonment for a further period of three months, the sole accused has come up with the present Criminal Appeal.

  1. The case of the prosecution runs thus:- The appellant Mani and the deceased Vicky were good friends and both were rag-pickers at Milk

Market area in R.S.Puram, Coimbatore, and were known to Sathish (P.W.1), Velliangiri (P.W.2) and Ganesan (P.W.3). On 10.01.2018, around 06.20 in the evening, the appellant and the deceased quarrelled in public and the appellant abused and appellant the deceased saying  that, 10 days back, he (the deceased) had stolen money from his (appellant’s) pocket. In the quarrel, the appellant punched  the deceased on his ribs and after the deceased fell down, he took a stone (M.O.1) and dropped it on the leg of the deceased.  This was witnessed by P.W.1, P.W.2 and P.W.3. The deceased Vicky was sent by an ambulance to the Government Hospital, Coimbatore where Dr.Raghuramaiah (P.W.14) examined him at 07.10 p.m. on 10.01.2021 and as the deceased was not conscious, he was admitted as inpatient.   A copy of the Accident Register has been marked as Ex.P.12. The history of the patient, noted in the copy of the Accident Register disclosed  that a known person had attacked him with stone near the market around 06.20 in the evening. Dr.Vijayaraj (P.W.9) gave further treatment to the deceased but, in vein as the deceased succumbed to the injuries and died at 01.50 a.m. on 11.01.2018.  On a written complaint (Ex.P.1) given by Sathish (P.W.1), Balachandar (P.W.15), the Sub Inspector of Police, registered a case in R.S.Puram Police Station Crime No.37 of 2018 under Section 302 IPC against the appellant and prepared the printed FIR (Ex.P.13), which reached the jurisdictional Magistrate on 11.01.2018 at

11.00 a.m. as could be seen from the endorsement thereon.

  1. The investigation of the case was taken over by Jothy (P.W.17),Inspector of Police, who went to the place of occurrence, prepared an observation mahazar (Ex.P.2) and rough sketch (Ex.P.17). From the place of occurrence, he seized a stone (M.O.1) and a blood stained cotton swab (M.O.2.) under the cover of a mahazar (Ex.P.3). The appellant was arrested on 11.01.20218 and a blood stained shirt of the appellant (M.O.3), a blood stained Dhoti of the appellant (M.O.4) that were worn by him were seized under the cover of a mahazar (Ex.P.4). The investigating officer (P.W.17) conducted inquest on the body of the deceased and prepared an inquest report (Ex.P.18). Dr.Nandhakumar (P.W.10), who performed autopsy on the body of the deceased issued Post-mortem certificate (Ex.P.8). No head injury was found. However, 5th to 8th Ribs were found fractured. The viscera report (Ex.P.9) showed that 193 mg of ethyl alcohol was detected in the stomach; 166 mg of ethyl alcohol was detected in the intestine; and 138 mg of ethyl alcohol was detected in the liver and kidney. In the final opinion Ex.P.8 -Post-mortem Certificate and Ex.P.10 – separate final opinion on the basis of viscera report,  the Doctor (P.W.10) has stated as follows:-

“Opinion: The deceased would appear to have died due to Multiple injuries and its complications.”

“Final Opinion: As the cause of death is already given in the Post-mortem certificate. The deceased was consumed ethyl alcohol prior to death.”

  1. After examining various witnesses and collecting the reports of the experts, the investigating officer completed the investigation and filed a final report in P.R.C.No.04 of 2018 in the Court of the Judicial Magistrate-I, Coimbatore, u/s 294(b) and 302 IPC against the appellant.
  2. On appearance of the appellant, the provisions of Section 207 of

Cr.P.C. were complied with and the case was committed to the Court of Session, Coimbatore in S.C.No.166 of 2018 and thereafter, it was made over to the I Additional Sessions Judge, Coimbatore, for trial.

  1. The trial court framed charges under Sections 294(b) and 302 IPCand when questioned, the appellant pleaded not guilty. To prove the case, the prosecution, examined 17 witnesses, marked 19 documents and 8 material objects. When the appellant was questioned under Section 313 of Cr.P.C. on the incriminating circumstances appeared against him, he denied the same. However, no explanation whatsoever was offered by him.  No witness was examined nor any document marked from the side of the appellant.
  2. After considering the evidence brought on record, the trial court, by judgement dated 11.01.2019, convicted the appellant/accused as stated in the first paragraph of this judgement. Challenging the conviction and sentence imposed on him by the trial court, the present appeal has been filed by the sole accused through the counsel nominated by the Tamil Nadu State Legal Services Authority.
  3. Heard Mr.M.Dhamodharan, learned Legal Aid Counsel for the appellant and Mr.M.Babumuthumeeran, learned Additional Public Prosecutor for the respondent/State.
  4. The learned counsel for the appellant contended that, P.W.1, P.W.2 and P.W.3 are not eye-witnesses and they have been planted subsequently, by the police. He also contended that the police had failed to retrieve the CCTV footages from the area. The evidence of W.10-Dr.Nandhakumar who conducted the postmortem shows that the deceased died of multiple injuries but, whereas the alleged eye-witnesses have spoken about only 2 punches that were given by the appellant to the deceased.
  5. Per contra, the learned Additional Public Prosecutor refuted the aforesaid contentions.
  6. W.1-Sathish in his evidence has stated that he is a resident of Thiyagarayar Pudhu Veedhi in Coimbatore area; he knows the appellant and the deceased; on 1.01.2018, he returned home and was talking to his friends at the milk market junction; at that time, he saw the appellant and the deceased quarrelling in public loudly, thereafter, they went into a lane in Lingappachetty Street and were shouting at each other; at that time, he along with his friends Magudeeswaran (not examined), Iyyappan (not examined), Velliangiri (P.W.2) and Ganesan (P.W.3) went into the lane to see what it was all about and at that time, they saw the appellant punching the deceased on his ribs and, thereafter, the appellant took a stone and dropped it on the leg of the deceased, due to which, the leg of the deceased started bleeding;  his friend Magudeeswaran  called 108; the ambulance came in 10 – 15 minutes and  the deceased Vicky was sent to Government General Hospital, Coimbatore, for treatment.  At night, he received an information that the deceased died and so, he gave a complaint (Ex.P.11) to the police. The evidence of P.W.2 and P.W.3 substantially corroborates the evidence of P.W.1.
  7. The learned counsel for the appellant brought to the notice of this court the following statement of P.W.1 in the cross examination:-

“rk;gt ,lkhf nghyp!hh; fhz;gpj;j ,lj;jpypUe;J bjd; fpHf;fpy; fpHf;F ghh;j;j tPl;il jtpu kw;w tPLfSf;F fjt[fnsh. $d;dnyh tlf;F ghh;j;J mikatpy;yiy vd;why; rhpjhd;.”

Based on the above, the learned counsel for the appellant contended that it was the police, who had shown the place of occurrence to the witnesses or otherwise they would not have known. The learned counsel for the appellant also drew our attention to similar answers given by P.W.2 and P.W.3.

  1. We are not able to countenance the aforesaid submission because, the entire depositions of the witnesses should be read and not an isolated portion. The defence has cleverly put a compound question to the witnesses in order to divert their attention to the location of the houses in the place of occurrence.  In this case, P.W.1 gave the complaint and only thereafter, the police came to the place of occurrence presumably with him otherwise, there is no way by which the police would have known the lane in Lingappatchetty Street where the occurrence had taken place.
  2. W.1 has stated in his cross examination also that the police came to the place of occurrence only after he gave the complaint. In the cross

 

examination, P.W.1 and P.W.2 have stated that after the incident, P.W.1 and

Magudeeswaran tried to catch the appellant, but, he ran away.  Of course P.W.1 in his cross examination has stated that on hearing the sound, when he went into the lane in the Lingappachetty Street, he saw a person running and chased him along with  Magudeeswaran  but, they were not able to catch him and only after he returned, he enquired about the incident and learnt about it.  To this extent,  the evidence of P.W.1 could be considered as hearsay. However, P.W.2 has stated in the cross examination that P.W.1Sathish and  Magudeeswaran  chased the appellant and tried to apprehend him but, they were not able to catch him.  P.W.3 has accepted the suggestion that the appellant and the deceased used to sleep on the concrete platform nearby, thereby lending assurance to his testimony that he knew both of them well.  Thus, we have no reasons to discard the testimony of P.W.2 and P.W.3, who had also witnessed the occurrence though there is some doubt with regard to the identity of the appellant in the evidence of P.W.1, who had also witnessed the occurrence.

  1. As regards non seizure of CCTV footages, the investigating officer has stated that CCTV Cameras were installed only on 01.09.2018 and not at the time when the occurrence in this case took place. It is pertinent to point out that the occurrence in this case had taken place on 10.01.2018.
  2. Now, coming to the charge under Section 302 IPC, we are afraid, we cannot confirm the conviction of the appellant under Section 302 IPC for the following reasons:-
    • The proved facts show that both the appellant and the deceased were good friends;
    • On the fateful day, both of them were drunk;
    • Both of them were quarrelling on a trivial issue;
    • The appellant/accused had only punched the deceased and had dropped O.1-stone on the leg of the deceased and not on any other vital organ; and
    • The death did not occur immediately and had occurred only while the deceased was under treatment in the hospital.

Thus, on the proved facts, the appellant could be convicted only under Section 304(ii) IPC.

  1. For the foregoing discussions, we are of the view that the appeal succeeds in part and the conviction of the appellant for the offence under Section 302 IPC is set aside and instead, he is convicted for the offence under Section 304(ii) IPC and sentenced to undergo rigorous imprisonment for a period of 7 (Seven) years and to pay a fine of Rs.1,000/- (Rupees One Thousand only) in default of payment of fine, he should undergo rigorous imprisonment for a further period of  3 (Three) months.  The fine amount, if any, already paid, by the appellant for the sentence of fine imposed by the trial court for the offence under Section 302 IPC shall be adjusted towards the fine imposed by this court hereinabove for the offence under Section

304(ii) IPC.

In the result, this Criminal Appeal is partly allowed with the above modifications.

We place on record our appreciation to Mr.M.Dhamodharan

(Enrl.No.691/1983) and direct the Tamil Nadu State Legal Services Authority, Chennai, to pay him remuneration of Rs.10,000/- as a special case.

  [P.N.P., J.]            [T.K.R., J.]

                                                    27..09..2022

Index: Yes/No kmk

To

1.The I Additional Sessions Judge, Coimbatore, Coimbatore District 2.The Inspector of Police, B-2, R.S.Puram Police Station, Coimbatore.

3.The Public Prosecutor, High Court, Madras.

P.N.PRAKASH.J.,

AND

RMT. TEEKAA RAMAN.J.,

kmk

Pre Delivery Judgement in

Crl.A.No.641 of 2019

Judgement Pronounced on

27..09..2022

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