Murder – Challenge to acquittal order – Deceased died due to heart attack – No proof that due to assault by accused deceased suffered attack – Delay in lodging FIR – Acquittal, proper. (Madras)justice n.ananth venkadesh

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A.Karthik v. C.Subramanian, (Madras)(DB)(Madurai Bench) : Law Finder Doc Id # 1655405
MADRAS HIGH COURT
(DB)(Madurai Bench)

Before:- S.Vaidyanathan and N.Anand Venkatesh, JJ.

Crl.A.(MD)No. 338 of 2017. D/d. 14.11.2019.

A.Karthik – Appellant

Versus

C.Subramanian and others – Respondents

For the Appellant:- Mr.M.Karthikeya Venkatachalapathy, Advocate.

For the Respondent No.8:- Mr.S.Chandrasekar Additional Public Prosecutor

For the Respondent Nos.1 and 7:- Mr.V.Kathirvelu, Senior Counsel and Mr.V.Ilanchezhian, Advocate.

IMPORTANT

Murder – Challenge to acquittal order – Deceased died due to heart attack – No proof that due to assault by accused deceased suffered attack – Delay in lodging FIR – Acquittal, proper.

Indian Penal Code, 1860, Sections 299, 302, 147, 149 and 294(b) – Appeal against acquittal – Accused persons allegedly on account of previous enmity assaulted deceased with blow of hands on chest and wooden log on knees resulting in his death – Medical evidence establishing that deceased died due to heart attack – Plea that attack was caused only due to the single blow that was attributed to accused, who had punched the deceased in his chest with his hands, not accepted – Delay in lodging FIR and reaching to Court showing that FIR deliberately lodged covering entire family members as accused persons – Failure of prosecution to prove its case beyond reasonable doubt – Acquittal, proper.

[Paras 9, 11 and 23]

JUDGMENT

S.Vaidyanathan, J. – This Criminal Appeal has been filed by the victim against the de-facto complainant, aggrieved by the Judgment of the I-Additional District Court (PCR), Trichirappalli, made in S.C.No.58 of 2016, dated 03.02.2017, acquitting the accused persons (A1 to A7) from all charges.

2. The brief facts of the prosecution case is that the deceased Arunagiri and the accused persons had previous enmity with regard to the property and a civil suit was also pending. On 13.05.2014, at about 2.10 p.m., A1 to A7 and their men are said to have entered into the property and damaged the shed that was put up inside the property by the deceased. This message was conveyed to the deceased and he came along with P.W.1 to P.W.3 and saw the accused persons loading the tiles of the shed in a TATA ACE van (M.O.2). He immediately questioned the accused persons. He was scolded in filthy language and he was attacked with hands by A2 and A3. He was caught hold by A5 and A4 is said to have attacked the deceased with a wooden log in his knees. A1 is said to have given a blow with his hands on the chest of the deceased and the deceased collapsed and fell down and he died thereafter.

3. P.W.1 is the son of the deceased and he is said to have given the complaint to the Sub Inspector of Police (P.W.18) on 13.05.2014, at about 6.00 p.m. On receipt of the compliant, P.W.18, registered an FIR in Crime No.105 of 2014, for the offence under Sections 147, 148, 341, 323, 294(b), 427 and 302 IPC. The express FIR was sent through the Head Constable (PW.17). The Head Constable had submitted the express FIR before the Judicial Magistrate No.V, Trichy, on 14.05.2014 at 10.00 a.m.

4. The investigation was taken up by the Inspector of Police (P.W.19) and he went to the scene of occurrence at about 7.00 p.m., on 13.05.2014 and prepared the observation mahazer Ex.P.21 and the rough sketch. He conducted the inquest on the body of the deceased in the presence of panchayatars and prepared the inquest report (Ex.P.22). The investigation officer also arrested A7 and recovered M.O.7, under seizure mahazer Ex.P.23 and Ex.P.24. He also recovered the blood stained dress of the deceased and M.O.1 and sent the material objects to the Court. On 20.05.2014, he arrested A2 and A5 and recorded their confession statement. He was transferred from the station and therefore, he handed over the investigation to the new incumbent (P.W.20).

5. The new investigation officer continued with the investigation and recorded the statement of the witnesses under Section 161(3) of Cr.P.C. He also recovered certain material objects. After collecting the postmortem certificate (Ex.P.16), opinion of the Doctor (Ex.P.17 and Ex.P.18) and also the serological report (Ex.P. 27), he completed the investigation and filed the final report before the Judicial Magistrate on 25.03.2015.

6. The case was committed to the file of the I-Additional District Judge (PCR), Tiruchirappalli, and the same was taken on file in S.C.No.58 of 2016. After the documents were served to the accused persons under Section 207 of Cr.P.C., the trial Court proceeded to frame charges against the accused persons under Sections 147, 294(b) and 302 r/w149 of IPC and Section 3(1) of TNPPDL Act. The prosecution examined P.W.1 to P.W.20 and marked Ex.P1 to Ex.P28 and exhibited M.Os.1 to 7. On the side of the accused persons Ex.D1 to Ex.D3 were marked.

7. The trial Court questioned the accused persons under Section 313 (1) (b) of Cr.P.C., by putting all the incriminating materials before them, collected during the course of trial and they denied the same as false.

8. The trial Court after considering the facts and circumstances of the case and after analysing the oral and documentary evience, came to a categorical conclusion that the prosecution has miserably failed to prove the case and has proceeded to acquit all the accused persons from all charges.

9. The learned counsel for the appellant submitted that the Court below had failed to take into consideration the evidence of P.W.1, who was the son of the deceased. He had clearly explained about the incident and his evidence has been corroborated by the evidence of P.W.2 and P.W.3. The learned counsel further submitted that the motive behind the crime has been clearly spoken by P.W.1 to P.W.4 and the same has not been taken into consideration by the Court below. The learned counsel further submitted that even-though the postmortem Doctor has stated in his evidence that the death of the deceased was caused due to heart attack, such an attack was caused only due to the single blow that was attributed to A1, who had punched the deceased in his chest with his hands.

10. The learned counsel further submitted that even assuming that the case for murder has not been made out in this case, it is clear from the postmortem certificate that the deceased had sustained injuries in the attack. Therefore, the accused persons must have been punished atleast for the injuries that was sustained by the deceased for a minor offence and they should not have been acquitted from all charges. The learned counsel therefore submitted that the judgment passed by the trial Court requires interference and the accused persons will have to be punished for appropriate offences.

11. Per contra, Mr.V.Kathirvelu, learned Senior Counsel appearing on behalf of the respondents 1 to 7 submitted that the so called eyewitnesses could not have seen the incident and their version was falsified by the evidence of P.W.18, who was the Sub Inspector of Police, who had registered the FIR in this case. The learned Senior Counsel submitted that there was a delay in registering the FIR and there was also a delay in the express FIR reaching the Court and all the family members have been roped in after deliberation and there is no ground to interfere with the judgment of the trial Court. The learned Senior Counsel further submitted that the postmortem certificate and also the opinion given by the Doctor clearly shows that the deceased has died only due to heart attack and therefore, the prosecution failed to prove any of the charges against the accused persons.

12. Mr.S.Chandrasekar, learned Additional Public Prosecutor, appearing on behalf of the State supported the arguments made by the learned counsel for the appellant.

13. This Court has carefully considered the submissions made on either side, facts and circumstances of the case and also analysed the oral and documentary evidence.

14. This is an appeal filed against the judgment of acquittal. As against the judgment of acquittal, this Court, exercising its appellate jurisdiction cannot interfere with the findings of the trial Court unless the same is wholly unreasonable or perverse or it is not based on the evidence on record or it suffers from serious illegality. This Court, sitting in appeal, cannot substitute its view to the view that has been expressed by the trial Court based on appreciation of evidence.

15. In the present case, the prosecution has heavily relied upon the evidence of P.W.1, who is the son of the deceased. He has stated in his evidence that he went along with the deceased after hearing the news that the accused persons are removing the shed from the property. According to him, the deceased was attacked by the accused persons with hands and legs and this incident had taken place on 13.05.2014, at about 02.00 p.m.

16. The prosecution had examined P.W.2 and P.W.3 as eyewitnesses. P.W.3 has almost spoken in line with what P.W.1 has stated in the evidence. P.W.2, who was also examined as an eyewitness did not support the case of the prosecution.

17. The postmortem Doctor was examined as P.W.15 and he has stated in his evidence as follows:

ghpNrhjid Kbe;j gpwF ,wg;gpw;fhd fhuzj;jpw;fhd ,Wjp fUj;ij njhptpj;Njd;. ,we;j egh; jd;Dila ,Ujaj;jpy; cs;s uj;jf;Foha;fspy; Vw;gl;l mgha vy;iyf;F tpiue;J nry;fpw Mgj;jhd Nehapdhy; ,we;jpUff; $Lk; vd;Wk; NkYk; mtuJ clypy; gyjug;gl;l rpuha;g;G fhaq;fs; ,Ue;jd vd;Wk; fUj;J ,Wjp mwpf;if toq;fpNdd;. ehd; toq;fpa gpNuj ghpNrhjid mwpf;if m.j.rh.M.16. ehd; toq;fpa ,Wjp fUj;J m.j.rh.M.17. 20.08.2014k; Njjpad;W NrhkurkN; gl;il fhty; Ma;thsh; Nfl;l ,uz;L Nfs;tpfSf;F rpwg;G epGzhpd; fUj;jhf gjpy;fs; toq;fpapUf;fpd;Nwd;. ehd ; toq;fpa fUj;Jiw m.j.rh.M.18. xU egiu neQ;rpy; Xq;fp ifahy; Fj;Jtjhy; typ Vw;gl;L ,wf;f tha;g;G cz;lh vd;why; mjw;fhd tha;g;G FiwT. ,J rk;ge;jkhf Ma;thsh; vd;id tprhhpj;jhh;. vjph; jug;G FWf;F tprhuiz: xU egUf;F ,Uja Neha; ,UfF; k;gl;rj;jpy; ,we;J NghdtUf;F ,Ue;jjhf mwpf;ifapy ; nrhy;ypAs;s ,Uja khw;wq;fs; ,Uf;f tha;g;Gz;L. Nkw;gb egh; mtuJ tNahfj;jpd; fhuzkhf rhjhuz epiyapy; Jhf;fj;jpy; $l khuilg;G Vw;gl;L ,wf;f tha;g;Gz;L

18. It will also be relevant to extract the injuries recorded in the postmortem certificate (Ex.P.16):

“Ante mortem injuries:
1. Irregular reddish brown abrasion 4.4 x 2.2 cm., on front and inner aspect of (R) knee;
2. Irregular reddish brown abrasion 1.4 x 0.9 cm., on front of (L) knee;
3. Nail mark abrasions, three in number, each 0.5 x 0.4 cm., on upper part of (L) side of chest;
No other external or internal ante-mortem injuries anywhere on the body.”
19. In the final opinion which was marked as Ex.P.17, it was opined that the deceased had died due to acute coronary artery heart disease with multiple abrasion injuries. An independent opinion was also obtained from the Doctor (PW.18) in this regard.
20. It is clear from the evidence of the Doctor, the postmortem certificate and the final opinion, that the deceased had died only due to heart attack and the same cannot be attributed to the alleged attack made by A1 with his hands.

21. The next question that arise for consideration is as to whether the act of the accused persons will attract any minor offence for which they have to be punished.

22. The learned Senior Counsel appearing on behalf of the accused persons submitted that the version of the eyewitnesses in this case is completely false and for that purpose, he relied upon the evidence of P.W.18. It will be relevant to extract the evidence of P.W.18.

Gfhh; nfhLj;j rkak; Ma;thsh; ntsp mYtypy; ,Ue;jhh;. m.j.rh.M.20 y; rk;gt Neuk; 12 kzp vd;W Nghlg;gl;L 14 kzp vd;W jpUj;jg;gl;Ls;sJ vd;W nrhd;dhy; rhpjhd;. mjd; cs; gf;fj;jpYk; xapl;ldh; itj;J mopj;J 14 kzp vd;W Fwpg;gplg;gl;Ls;sJ. mij tprhuiz nra;j mjpfhhp jpUj;jpapUg;ghh;. Kjy; jfty; mwpf;ifapy; 7 vjphpfspd; ngah;fis Fwpg;gpl;L kw;Wk; milahsk; njhpe;j 5 eghf; s; vd;W Fwpg;gplg;gl;Ls;sJ. rk;gtj;jpy; mUzfphp ,we;J tpl;lhhh; vd;gij tprhhpj;J njhpe;j gpwFjhd; tof;if gjpT nra;Njd;. ehd; rk;gt ,lj;jpw;F NghdNghJ ,we;J Nghdtiu 108 Mk;Gyd;]; %yk; M];gj;jphpf;F nfhz;LNgha; tpl;ljhf nrhd;dhh;fs;. Fhiy 11 kzpf;Nf jfty; fpilj;J rk;gt ,lj;jpw;F NghNdd;. ehd; kl;Lk; NghNdd;. Ch; kf;fis tprhhpj;jjpy; mUzfphp ,we;J tpl;ljhf nrhd;dhh;fs;. mqF; Gfhh; nfhLf;f ahUk; ,y;iy. ehd; ,e;j jftiy vdJ Nky; mjpfhhpfSf;F kjpak; 12 kzpf;F nrhd;Ndd;. Nky; mjpfhhpfs; khiy 5 kzpf;F jhd; fhty;epiyaj;jpw;F te;jhh;fs;. mjd; gpwFjhd; Gfhh; nfhLf;fg;gl;lJ. mr;R Kjy; jfty; mwpf;ifapy; 3tJ fhyj;jpy; jfty; fpilj;j Neuk; 18 kzp vd;W vOjg;gl;Ls;sJ vd;W nrhd;dhy; rhpjhd;

23. A reading of the evidence of P.W.18 clearly shows that there were clear manipulations done in the FIR and he states that he went to the scene of occurrence even at 11.00 a.m., on 13.05.2014 and he had informed the higher authorities at 12.00 noon. Therefore, the version given by the eyewitnesses to the effect that the incident took place at 2.00 p.m., gets completely falsified. The delay in registering the FIR and the delay in the express FIR reaching the Court clearly shows that there was deliberation before the compliant was given and the entire family members were added as accused in this case. One of the accused persons, namely, A4 is aged about 86 years, and she is a lady, who is said to have attacked the deceased with stick in his legs.

24. The trial Court has considered the entire evidence on record and has come to a categorical conclusion that the prosecution has failed to prove the case against the accused persons. This Court does not find any perversity or illegality in the findings of the trial Court and it is only based on the evidence that was available on record. The trial Court had also pointed out several infirmities and has given sufficient reasons to come to a conclusion that the prosecution has failed to prove the case. This Court does not find any justifiable reason to interfere with the judgment of acquittal passed by the trial Court.

25. In the result, this Criminal Appeal is dismissed and the judgment of the trial Court acquitting the accused persons is hereby confirmed.

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