Allowed

Ranjith @ Ranjithkumar, v. State Rep. by

Madras HC17 Nov 2016CRL A/653/2016

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in a murder case where the appellants were convicted under Section 302 IPC. The Court set aside the conviction and acquitted the appellants, holding that the prosecution failed to prove their guilt due to the suppression of an earlier complaint by the deceased's wife and the failure to examine relevant witnesses or seize crucial material evidence like blo

What did the court decide?

Conviction and sentence set aside; appellants acquitted; fine amount refunded.

Ranjith @ Ranjithkumar, Vs State Rep. by — Murder and Culpable Homicide | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 17.11.2016

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CORAM:

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THE HONOURABLE MR.JUSTICE A.SELVAM

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and

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THE HONOURABLE MR.JUSTICE P.KALAIYARASAN

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Criminal Appeal No.653 of 2016

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and Crl.M.P.No.9040 of 2016

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1.Ranjith @ Ranjithkumar 2.Kumar 3.Kakka Ashok @ Ashok 4.Mohan @ Vellai Mohan ... Appellants/Accused 1 to 4

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vs.

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The State rep.by Inspector of Police(L & O), D3 Ice House Police Station, Chennai ... Respondent/Complainant (Crime No.959/2014)

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Criminal Appeal filed under Section 374(2) of Cr.P.C., against the conviction and sentence made in Sessions Case No.35 of 2015 dated 27.06.2016 on the file of the XVII Additional Sessions Judge, Chennai.

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For appellants : Mr.V.Krishnamoorthy for Mr.R.Thirumoorthy for A2 and A4 Mr.R.Kishorekumar for A1 and A3

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For Respondent : Mr.E.Raja Additional Public Prosecutor.

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JUDGMENT (Judgment of the Court was delivered by A.SELVAM.J.)

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This Criminal Appeal has been directed against the conviction and sentence, dated 27.06.2016, passed in Sessions Case No.35 of 2015, by the XVII Additional District and Sessions Court, Chennai.

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https://hcservices.ecourts.gov.in/hcservices/

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The case of the prosecution is that the defacto complainant, by name, Anusuya, is the wife of the deceased by name Raja. So many criminal cases are pending against the accused 1 to 4 and deceased. On 09.07.2014, the deceased, his wife and sisters and the accused 1 to 4 have attended a funeral ceremony of one Thiagu. During the course of the same, a tussle has taken place between the accused and deceased. The defacto complainant has taken her husband away from the place of occurrence. On the same day, at about 17.30 hours, all the accused have wrongfully restrained the deceased with deadly weapons and indiscriminately attacked him on his person and due to their overt acts, he passed away and after occurrence, the wife of the deceased has given a complaint and the same has been registered in Crime No.959 of 2014. The complaint given by the defacto complainant has been marked as Ex.P1.

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On receipt of Ex.P1, the investigating officer, viz., P.W.19 has taken up investigation, examined connected witnesses and also made arrangements for conducting autopsy on the body of the deceased and accordingly, P.W.11Dr.D.S.Saravanan has conducted postmortem and he found the following external and internal injuries:

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"Injuries (1) Irregular dark red abrasions a) 3 x 2 m on the outer aspect of upper third of the right forearm. b) 2.5 X 0.5 cm on outer aspect of left knee.

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Cut wound of 3 x 0.5 x 0.5 cm on the outer aspect of middle third of right chest;

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Cut wound of 1 x 0.5 cm on outer aspect of middle third right arm;

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Cut wound of 5 x 1 cm x skin deep on back of left elbow.

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Surgical sutured cut wound of 5 cm with 3 intact sutures on back of left hand;

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Surgical sutured cut wound of 13 cm with 4 intact sutures on out aspect of upper third of left arm to front of middle third of left arm; on removal of the sutures the wound has 0.5 cm width and 0.5 cm depth and the wound margins were regular and gaping.

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Surgical sutured cut wound of 5 cm with 1 intact suture on out aspect of upper third of left chest; on removal of the sutures the wound has 0.5 cm width and 0.5 cm depth and the wound margins were regular and gaping.

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Surgical sutured cut wound of 4 cm with 1

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intact suture on outer third of left clavicular region. On removal of the sutures, the wound has 0.5 cm width and 0.5 cm depth and the wound margins were regular and gaping.

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Incised wound of 6 x 0.5 x 0.5 cm on inner aspect of upper and middle third of right arm with tailing on the lower end;

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Incised wound of 10x0.5x0.5 cm on left lower jaw with tailing on the inner aspect.

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Chop wound of 7 x 0.5 x0.5 cm with 1 stay suture on front of upper third of neck to left lower jaw;

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Chop wound of 18 x 0.5 x 1 cm with 6 stay sutures from chin to left earlobe;

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Chop wound of 5 x 0.5x1 cm below left ear lobe to left mastoid process;

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Chop wound of 8 x 0.5x1 cm with 2 stay sutures from inner aspect of left eye to tip of the nose with inner margins bevelled and overhanging tip.

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Chop wound of 4 x 0.5x0.5 cm on the nose;

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Chop wound of 4 x 1x0.5 cm on the middle of the forehead with inner margins bevelled and overhanging tip.

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Chop wound of 3 x 0.5 x 0.5 cm on front of lower third of the neck.

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Deformity of the left lower jaw; on further dissection irregular complete fracture of the left lower jaw at junction of the medical and lateral incisors with surrounding soft tissue bruising and extravasation of blood found.

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Cut wound of 7 x 0.5 cm scalp deep with 1 intact suture on right parietal bone. On removal of the sutures the wound margins were regular and gaping.

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Cut wound of 11 x 0.5 cm x scalp deep with three intact sutures on right occipital bone. On removal of the sutures the wound margins were regular and gaping.

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Cut wound of 6 x 0.5 cm X scalp deep with 1 intact suture on left parietal bone. On removal of the sutures the wound margins were regular and gaping.

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Cut wound of 5 x 0.5 cm x scalp deep on vertex. On removal of the sutures the wound margins were regular and gaping.

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Cut wound of 7 x 0.5 cm x scalp deep on right frontal bone. On removal of the sutures

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the wound margins were regular and gaping.

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Cut wound of 5 x 0.5 x scalp deep cm with three intact sutures on left frontal bone. On removal of the above sutures the wound margins were regular and gaping. On reflection of the scalp, 18 x 12 cm dark red contusion on left frontal and both parietal regions of the scalp with a) 13 cm oblique fissured fracture on left frontal bone and adjoining right parietal bone; b) 6 cm obligue fissured fracture on left frontal bone below injury (a); (c) 5 cm linear fissured fracture on left parietal bone; d) 6 cm linear fissured fracture hon middle of the occipital bone. On removal of the calvarium, 12 x 18 cm dark red subdural hematoma on both parietooccipital lobes of cerebral hemispheres and both cerebellar hemispheres with thin film of dark red subarachnoid haemorrhage on both parietal lobes of the carebral hemispheres.

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Bast of skull; a) 6 cm fissured fracture on floor of left anterior cranial fossa; b) 5 cm fissured fracture on floor of both right and left posterior cranial fossa. Heart: Normal in size; c/s: All Chambers were empty, Valves: normal, Coronaries: Patent; Great Vessels: Normal. Lungs: Normal in size. C/S.Pale, Larynx & Trachea: Empty. Hyoid Bone: Intact. Stomach: empty; mucosa pale Liver, Spleen and both kidneys: Normal in size, C/s.Pale. Bladder: Empty. Pelvis & Spinal Column: Intact."

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The postmortem certificate has been marked as Ex.P14. The investigating office has continued investigation and after completing the same, laid a final report on the file of the XIII Metropolitan Magistrate, Egmore, Chennai and the same has been taken on file in P.R.C.No.156 of 2014.

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The XIII Metropolitan Magistrate, Egmore, Chennai, after considering the fact that the offences alleged to have been committed by all the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Chennai Division and the same has been taken on file in Sessions Case No.35 of 2015 and subsequently made over to the trial Court.

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The trial Court, after hearing arguments of both sides and upon perusing the relevant documents, has framed first charge against the accused under Section 341 of the Indian Penal Code; second charge against them under Section 302 read with

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Section 34 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.

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On the side of the prosecution, P.Ws.1 to 19 have been examined and Exs.P1 to P.31 and M.Os.1 to 7 have been marked.

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When the accused have been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.

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The trial Court, after hearing arguments of both sides and also upon perusing the relevant evidence available on record, has found all the accused guilty under Section 302 of the Indian Penal Code and sentenced them to undergo imprisonment for life and also imposed a fine of Rs.25,000/upon each with usual default clause. The trial Court has acquitted all the accused in respect of the charge framed under Section 341 of the Indian Penal Code. Against the conviction and sentence passed by the trial Court, the present criminal appeal has been preferred, at the instance of the accused, as appellants.

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The sum and substance of the case of the prosecution is that the defacto complainant is the wife of the deceased, viz., Raja. The said Raja and all the accused are having so many criminal cases. On 09.07.2014, the defacto complainant, deceased and his sisters have attended a condolence and the accused have also made their presence and at that time, a tussle has arisen and due to that, the deceased has been taken away to an isolated place. After some time, on the same day, all the accused, armed with deadly weapons, have attacked the deceased indiscriminately and due to their overt acts, the deceased has had instantaneous death.

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The prosecution has set the law in motion only on the basis of Ex.P1-complaint. Even though on the side of the prosecution, P.Ws.1 to 7 have been examined as eyewitnesses, unfortunately P.Ws.4 to 7 have become hostile witnesses. The trial Court has believed the evidence given by P.Ws.1 to 3 and invited conviction and sentence against the appellants/accused.

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The learned counsel appearing for the appellants 1 and 3 has contended that Ex.P1 has reached the Court very belatedly. The defacto complainant has been examined as P.W.1

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and her specific evidence is that after occurrence she has gone to D2 Anna Salai Police Station, but the same has been suppressed on the side of the prosecution. Further, P.W.1 has not stated in Ex.P1 as well as in her evidence about the presence of P.Ws.4 to 7. The specific case of the prosecution is that after occurrence, body of the deceased has been taken to hospital through an ambulance and the driver of the same has not been examined. Even in Ex.P16, copy of Accident Register, it has been specifically mentioned as 'un-known person' (Raja) and further, the author of Ex.P16 has not been examined on the side of the prosecution.

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The learned counsel appearing for the appellants 2 and 4 has contended to the effect that M.Os.3 and 4 have been recovered in the presence of P.Ws.9 and 10 and their specific evidence is that they have not known the contents of recovery mahazar. Further, the specific evidence of P.Ws.1 to 3 is that immediately after occurrence, they have lifted the accused and their clothes have sustained blood stains. But their clothes have not been marked on the side of the prosecution.

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The learned Additional Public Prosecutor has also equally argued to the effect that in the instant case P.Ws.1 to 3, even though related witnesses, have given clinching evidence to the effect that they have seen the occurrence and in the place of occurrence all the accused have indiscriminately attacked the deceased by using deadly weapons and the trial Court, after considering the over all evidence available on record, has rightly found all the accused guilty under Section 302 of the Indian Penal Code and therefore, the conviction and sentence passed by the trial Court do not require any interference.

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As mentioned supra, on the side of the prosecution, P.Ws.1 to 7 have been examined as eyewitnesses. But unfortunately, P.Ws.4 to 7 have become hostile witnesses. The trial Court has believed the evidence given by P.Ws.1 to 3. It is an admitted fact that P.W.1 is the wife of the deceased and P.Ws.2 and 3 are his sisters.

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The only point that arises for consideration in the present appeal is as to whether the evidence given by P.Ws.1 to 3 can be a basis for inviting conviction and sentence against all the accused under Section 302 of the Indian Penal Code.

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It is true that P.Ws.1 to 7 are nothing but independent eyewitnesses. But unfortunately they have become hostile witnesses. Since P.Ws.4 to 7 have become hostile

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witnesses and since P.Ws.1 to 3 are nothing but closely related witnesses, their evidence has to be analysed carefully and also dispassionately.

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It is an admitted fact that the entire case of the prosecution is based upon Ex.P1, complaint, wherein, it has been stated about the overt acts alleged to have been played by all the accused. The specific evidence given by P.Ws.1 to 3 is that in the place of occurrence all of them are present and all the accused have attacked the deceased, by using deadly weapons indiscriminately.

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The main attack made on the side of the appellants 1 and 3 is that during the course of cross-examination, P.W.1 has clearly admitted to the effect that immediately after occurrence, she has given a complaint in D2, Anna Salai Police Station, but the same has been suppressed.

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As rightly pointed out on the side of the appellants 1 and 3, the specific evidence given by P.W.1 is that immediately after occurrence, she has given a complaint in D2 Anna Salai Police station about the occurrence. But for the reasons best known to the prosecution, the same has not been marked. Therefore, it is quite clear that the genesis of the case of the prosecution has been purposely/wantonly suppressed on the side of the prosecution.

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It is an admitted fact that Ex.P16, copy of Accident Register, has been marked on the side of the prosecution, wherein, as rightly pointed out on the side of the appellants 1 and 3, it has been mentioned against Column of accused as 'unknown' (Raja). If really, the accused have actually involved in the occurrence, definitely, in Ex.P16, it would have been mentioned as 'known persons'. Further, the author of Ex.P16 has not been examined on the side of the prosecution for the purpose of explaining such infirmities found in Ex.P16.

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The learned counsel appearing for the appellants 1 and 3 has contended that after occurrence, the deceased has been taken to hospital by using an ambulance. But the driver of the same has not been examined. Since, immediately after occurrence, the body of the deceased has been taken to hospital, through ambulance, the driver of the same has to be examined on the side of the prosecution. But the prosecution has failed to examine him. On that score also, the Court cannot come to a conclusion that the prosecution has established the guilt of the accused punishable under Section 302 of the Indian Penal Code.

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Now, the Court has to look into the argument put forth on the side of the appellants 2 and 4.

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The specific argument put forth on the side of the appellants 2 and 4 is that P.Ws.9 and 10, recovery mahazar witnesses, have clearly stated that they put their signatures without knowing the contents of mahazar and blood stained clothes of P.Ws.1 to 3 have not been recovered and marked on the side of the prosecution.

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It is seen from the evidence given by P.Ws.1 to 3 that after occurrence, all of them have lifted the deceased and due to that, their clothes have sustained blood stains. But, as rightly pointed out on the side of the appellants 2 and 4, the investigating officer has not recovered anything from P.Ws.1 to 3.

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If really P.Ws.1 to 3 are present at the time of occurrence, and if really they lifted the deceased after occurrence and their clothes have sustained blood stains, definitely, the investigating officer ought to have seized the same and marked them as material objects. In the instant case, for the purpose of proving the presence of P.Ws.1 to 3, their blood stained clothes are very much essential. But, as taunted earlier, the investigating officer has not seized anything from P.Ws.1 to 3. Since, the above lapses are found on the side of the prosecution, it is very clear that P.Ws.1 to 3 are not at all eyewitnesses. Since P.Ws.1 to 3 are not at all eyewitnesses, virtually, on the side of the prosecution, no piece of evidence is available so as to connect all the accused with the crime.

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It has already been pointed out that on the side of the prosecution, the earlier complaint alleged to have been given by P.W.1 has been purposely suppressed. Since the earlier complaint alleged to have been given by P.W.1 has been purposely suppressed and since for the purpose of proving the presence of P.Ws.1 to 3, at the time of occurrence, as indicated above, the investigating officer has not evinced interest in seizing the blood stained clothes of P.Ws.1 to 3, it is needless to say that the prosecution has failed to prove the charges framed against all the accused.

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The trial Court, without considering the vital infirmities found on the side of the prosecution, has erroneously invited conviction and sentence against the appellants/accused and in view of the discussion made earlier, this Court is of the view that the conviction and sentence

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passed by the trial Court are liable to be set aside.

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In fine, this Criminal Appeal is allowed. The conviction and sentence passed by the trial Court in Sessions Case No.35 of 2015, are set aside. The appellants/accused are acquitted and the fine amount, if any, paid by them is ordered to be refunded forthwith. Connected miscellaneous petition is closed.

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Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
msk
To :
1. The Inspector of Police(L & O),
D3 Ice House Police Station,
Chennai
2.the XVII Additional Sessions Judge, Chennai-1.
3 The XIII Metropolitan magistrate
Egmore at Allikulam, Chennai 3
4 -do- Thro The Chief Metropolitan Magistrate,
Egmore, at Allikulam, Chennai 3
5 The Superintendent, Central Prison I
Puzhal, Chennai 66
6 The District Collector
Chennai
7 The Commissioner of Police, Greater Chennai Police
Vepery, Chennai 7
8 The Director General of Police,
Mylapore, Chennai 4

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https://hcservices.ecourts.gov.in/hcservices/

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9.The Public Prosecutor, High Court, Madras

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+1cc to Mr.R. Thirumoorthy, Advocate, S.R.No.66776

nrjk(CO)

md(21/11/2016)

Crl.A.No.653 of 2016

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Ranjith @ Ranjithkumar, v. State Rep. by

Case brief

What is this about?

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Ranjith @ Ranjithkumar, v. State Rep. by

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