Partly allowed

P.Shanmugam @ Shanmuga v. State, Rep.by the Inspector of

Madras HC10 Mar 2014CRL RC/1426/2013

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Madras set aside charges of riot causing death and culpable homicide, holding evidence insufficient for these grave offences. The Court remanded the case to frame charges afresh for the lesser offence of voluntarily causing hurt.

What did the court decide?

Criminal revision allowed; charges under sections 147 and 304(ii) IPC set aside; matter remanded to frame charges for lesser offence under section 323 IPC.

P.Shanmugam @ Shanmuga Vs State, Rep.by the… — Murder and Culpable Homicide | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 10.03.2014

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Coram

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THE HONOURABLE MS. JUSTICE K.B.K.VASUKI

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Crl.R.C.No.1426 of 2013 and M.P.Nos.1 and 2 of 2013

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1.P.Shanmugam @ Shanmugasundaram 2.A.Ramesh 3.V.Durai @ Duraisamy 4.R.Rajamani 5.Thangamuthu .. Petitioners Vs. State rep. by the Inspector of Police, Mudis Police Station, Valparai Circle, Coimbatore. .. Respondent

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Prayer :- Criminal Revision filed under Section 397 r/w 401 of Cr.P.C. praying to call for the records in S.C.No.156/2013 on the file of the IV Additional District Sessions Judge, Coimbatore and set aside the charges framed against the petitioners/accused on 9.10.2013.

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For Petitioners : Mr.AR.L.Sundaresan, S.C for M/s.S.Sithirai Anandam For Respondent : Mr.C.Iyyapparaj, GA (Crl. Side) O R D E R

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The present criminal revision is filed by A1 to A5 to set aside the charges framed against them for the offences under sections 304 (ii) and 147 IPC in SC.No.156 of 2013 on the file of IV Additional District Sessions Judge, Coimbatore.

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2.The prosecution case is as follows:

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The first petitioner P.Shanmugam @ Shanmugasundaram is the Security Officer of RSV Group of Educational Institutions and one Kisa @ Ananthakumar since deceased was one of his employees. During December 2010, the first petitioner requested Kisa @ Ananthakumar to white wash his house and at that point of time, 1½ sovereign of gold articles and cash of Rs.10,000/- were found missing from the house of the first petitioner and the first petitioner suspected Kisa @ Ananthakumar for missing valuables. While so, the first petitioner asked Kisa @ Ananthakumar to come to his friend Rajamani's farm house

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on 17.5.2012. When Kisa @ Ananthakumar reached there, the petitioners 1 to 4 beat him with bamboo sticks at the hand palm and foot and they obtained his signature in blank paper and thereafter Kisa @ Ananthakumar was taken to his house at Murugalli Mattum Village at 4.00 am on 18.5.2012 in a hired Qualis Car which was driven by A5 Thangamuthu and after reaching his house, Kisa @ Ananthakumar went inside his house to bring back the valuables and he was again beaten by the petitioners 1 to 5 in the presence of his family members and other neighbours. While so, Kisa @ Ananthakumar left the place for answering natural calls, from where he ran away and the petitioners 1 to 5 left the place in the same Qualis Car. After sometime, Kisa @ Ananthakumar returned back to his house and he complained of body pain and he was taken to the Government Hospital, Valparai Town, where he was admitted as in-patient for treatment and he was discharged from the hospital on his own on the next day i.e., on 19.5.2012. While he was at home, he vomited and he was soon taken to Sheikalamudi Garden Hospital, Murugalli Estate, where, he was, after examination, declared to be dead and dead body was handed over to the relatives of Kisa @ Ananthakumar. The same was followed by the complaint by his wife and the same was registered as FIR in Crime No.50 of 2005 for the offences under sections 294(b) and 323 IPC against A1 to A4. Thereafter, FIR was altered into one for the offence under sections 147, 148 and 302 IPC. After investigation, final report was filed against A1 to A5 for the offences under sections 147 and 304 (ii) IPC. The same was taken up on file and was committed to Sessions court, where the charges were framed against the accused for the offences under sections 147 and 304(ii) IPC.

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3.The present Criminal revision is filed for setting aside the charges so framed against the petitioners. The learned senior counsel for the petitioners contended that the materials available in the form of Section 161 Cr.P.C statement recorded and other documents collected during the course of investigation do not make out any case constituting the offence punishable under sections 147 and 304(ii) IPC and the charge if any prima facie disclosed is for the offence under Section 323 IPC, which is lesser in nature. Whileso, the charges framed for the larger offence are likely to result in failure of justice and the accused persons are likely to be deprived of full and fair trial in accordance with the principles of natural justice.

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4.Whereas the learned Government Advocate (Crl.Side) would oppose the relief both in law and on facts. In law, the maintainability of this criminal revision is questioned. On facts, the learned Government Advocate (Crl.Side) relied on the materials collected during the course of the investigation to derive the veracity of the charges framed against the accused.

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5.Heard the rival submissions made on both sides.

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6.Regarding the maintainability of the criminal revision, the revisional jurisdiction of the Court can be invoked for questioning the correctness of the charges. In the event of the petitioners being able to help the Court to decide whether it is necessary to proceed to conduct the trial and if the case ends there, it gains a lot of time of the Court and saves much human efforts and cost. The Hon'ble Apex Court in the decision reported in (1996) 3 Crimes 85 (Satish Mehra v. Delhi Administration) held so, while dealing with the power of the court under section 227 Cr.P.C. The Hon'ble Apex Court has gone to the extent of saying that the Sessions Judge would be within his power to consider even materials, which the accused may produce at the stage contemplated in Section 227 of the Code. What is to be seen at the stage of framing charge is that the court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. The Hon'ble Supreme court has also in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76 held that at the time of framing charges, having regard to sections 227 and 228 Cr.P.C, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose, sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case. That being so, the objection raised regarding the maintainability of this Criminal revision filed against the correctness of the charges framed against the accused, deserves no merits and acceptance.

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7.On merits, the prosecution in order to establish their case, examined as many as 19 witnesses, besides preparing and collecting FIR, Section 161 Cr.P.C statements, observation mahazar, rough sketch, seizure mahazar, wound certificate, confession statement, post mortem report and charge sheet. Out of 19 witnesses, 15 witnesses are independent witnesses and 16^th and 17^th witnesses are doctors, who treated the deceased and 18^th and 19^th witnesses are the Sub Inspector and Inspector of Police associated with the registration of FIR and investigation of the case. The reading of section 161 Cr.P.c statements of independent witnesses would not, as rightly pointed out by the learned senior counsel for the petitioners support the prosecution case regarding the alleged act of assault of the deceased by A1 to A4 in the farm house belonging A4 Rajamani. That part of the evidence of the witnesses is only hearsay. It is deposed by each witness that he or she as the case may be was informed so by the deceased Kisa @ Ananthakumar. All the witnesses would categorically say that the deceased informed them about his being taken to Rajamani's farm house and his being beaten up with

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bamboo stick in his hand palm and foot by A1 to A4. It is nobody's case that A5 driver of the Qualis car Thangamuthu participated in the act of assault allegedly taken place inside the farm house. Even as per the statement of prosecution side witnesses, Qualis Car having A5 as its driver, was hired by A1 to A4 to bring back Kisa @ Ananthakumar to his house. Therefore, there is no assembly, much less unlawful assembly of 5 persons inside the farm house of Rajamani.

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8.Further, as per hearsay evidence of the witnesses, Kisa @ Ananthakumar was beaten up by A1 to A4 by using bamboo stick at his hand palm and foot. The next place of act of assault was in front of the house of Kisa @ Ananthakumar, wherein, A1 to A5 are alleged to have shouted at him in filthy language and assaulted Kisa @ Ananthakumar by using their hands. It is nobody's case that Kisa @ Ananthakumar was beaten by A1 to A5 by weapons much less serious weapons. On both occasions, the fact that the deceased did not sustain any injury, is evident from the oral statement of LW17 Dr.Prabhu attached to the Government Hospital, Valparai, where the injured was first taken on 18.5.2012. He was admitted in the hospital at 11.30 am and discharged on 4pm on 19.5.2012 on his own. The wound certificate produced herein would not reveal any serious injuries on the body of the deceased. He was admitted in the hospital for his complaining of body pain and he was put on medicine and he was discharged, as he was normal and returned home. Thereafter, the deceased complained off chest pain and he was again admitted in the hospital, where, he was declared to be dead. The post mortem report does thus disclose simple injury on the dead body as per final opinion, the deceased was reported to have died of alcohol intoxication and the injury noted on the post mortem certificate is not sufficiently serious enough to cause death.

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9.Thus, the facts stated above, as rightly argued by the learned senior counsel for the petitioners, would disclose no evidence to establish prima facie case of act of assault on the deceased by A1 to A4 in the farm house of A4 Rajamani and alleged act of assault in front of the house of the deceased by A1 to A5 is only by using hands and the deceased did not sustain any serious injury and the injury sustained by him is only simple in nature. He complained of chest pain, for which he was already on treatment and he died of alcohol intoxication and the injury is not sufficient enough to cause his death. Thus, the fact emerges from the materials available herein is that no ingredient is made out to constitute the offence punishable under Sections 147 and 304(ii) IPC, as such, the charges framed against the accused for the serious offences as referred to above are lacking in evidence, much less material evidence and the same are liable to be set aside. As the facts made available herein, if viewed in the light of the discussions held above, would disclose the commission of lesser offence under section 323 IPC it is a fit case to remand back the case for framing charges afresh.

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10.In the result, this Criminal Revision is allowed by setting aside the charges framed against the accused for the offences under sections 147 and 304(ii) IPC in SC.No.156/2013. The matter is remanded back for framing charges afresh on the basis of the materials available herein for lesser offence and to proceed with the case in the manner known to law. Consequently connected Miscellaneous petitions are closed.

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Sd/-
Asst. Registrar[cs.v]
Dt/-02/05/2014 .
/true copy/
Sub Asst. Registrar.
rk
To
1.The IV Additional District Sessions Judge, Coimbatore.
2.The Inspector of Police, Mudis Police Station,
Valparai Circle, Coimbatore.
3.The Public Prosecutor, High Court, Madras.104.
Crl.R.C.No.1426 of 2013
ppa[co]
gp/2.5.

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P.Shanmugam @ Shanmuga v. State, Rep.by the Inspector of

Case brief

What is this about?

What did the court decide?

P.Shanmugam @ Shanmuga v. State, Rep.by the Inspector of

Case brief

What is this about?

What did the court decide?

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