Dismissed

Elangovan v. the Inspector of Police

Madras HC6 Jul 2018CRL A/182/2010

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentence of the appellants for culpable homicide not amounting to murder. The court acquitted the accused due to lack of corroboration of eye witness testimony and discrepancies in the chemical examination report regarding blood groups found on recovered materials.

What did the court decide?

Conviction and sentence set aside; appellants acquitted; bail bond cancelled; fine refunded.

Elangovan Vs the Inspector of Police — Murder and Culpable Homicide | Madras HC (2018)

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BAIL SLIP

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The Accused 1 & 2 namely Elangovan (M/26yrs) S/O.Kannappan and Kannappan(M/54 yrs) S/O. Palani Gounder were released on bail made in Crl Mp.No.1/2010 dated 12.04.2010 (SC.No.5/2010 on the file first Additional District & Sessions Judge) in Crl A.No.182 of 2010.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 06.07.2018

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CORAM : THE HON'BLE MR. JUSTICE R.PONGIAPPAN Crl.A.No. 182 of 2010

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Elangovan [A1] 2. Kannappan [A2] .. Appellants Vs. State by: Inspector of Police, M-5, Vadavalli Police Station, Coimbatore District. (Crime No:724/08) ..Respondent

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Prayer: Appeal filed under Section 374 (2) of Cr.P.C., to set aside the conviction and sentence dated 10.03.2010 made in S.C.No.5 of 2010 by the learned First Additional District and Sessions Judge, Coimbatore.

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For Appellants : Mr.A.Nagarajan For Respondent : Mrs.T.P.Savitha Government Advocate(Crl.Side)

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JUDGMENT

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The appellants are arrayed as first and second accused in S.C.No.5 of 2010 on the file of the learned First Additional District and Sessions Judge, Coimbatore. They stood charged for the offence under Section 302 IPC by judgment dated 10.03.2010. The Trial Court convicted them under Section 304(2) IPC and sentenced to undergo 5 years Rigorous Imprisonment and imposed a fine of Rs.2,000/- each in default to undergo 1 year Simple Imprisonment. Now challenging the said conviction and sentence, the appellants are before this Court with the present criminal appeal.

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The case of the prosecution in brief is as follows: (i). On 08.02.2008 when PW1's son Ponnusami was sitting in the Vinayagar Temple in their village, both the accused came and due to the previous enmity by using M.O.1 and M.O.2 stout

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stick attacked him on the head. At the same time, PW1 and PW2 and one Ramakrishnan were talking together, near to the place of occurrence. On hearing the hue and cry of the deceased Ponnusami, PW1, PW2 and Ramakrishnan rushed to the scene of occurrence. On seeing them, the appellants ran away from the place of occurrence. Immediately, they took the deceased Ponnusami and admitted in the Ramachandra Hospital. Thereafter, PW1 lodged a complaint before the SubInspector of Police, Vadavalli, Police Station under Ex.P.1. Based on the complaint given by PW1, a case has been registered in Cr.No.724 of 2008 under Section 307 IPC. PW2 is the grandson of one Kappinigounder.

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(ii). After registering the case, PW13, the then Head constable forwarded the F.I.R to the Inspector of Police for investigation. Ex.P.13, is the printed F.I.R.

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(iii). On receipt of the FIR, PW14, Mr.Rajagopal, the then Inspector of Police, Vadavalli Police Station visited the scene of occurrence and prepared the Observation Mahazar under Ex.P.3. Further, he drawn the rough sketch under Ex.P.14. On 09.12.2008 early morning at about 7 hours near Najna Gounden Palayam Bridge, he arrested the appellants. After made arrest, the second appellant voluntarily gave a confession before the PW14 and the same was recorded by him in the presence of PW6 Subramaniam. In the confession statement, the second appellant has stated that he is willing to hand over the wooden logs used in the crime now hidden underneath to the bridge in Natha Gounden Palayam.

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(iv). Pursuant to the confession, the accused produced the wooden logs and the same was recovered by PW14 under the cover of mahazar. Admitted portion of confession statement was marked as Ex.P.5. The Seizure mahazar is exhibited as Ex.P.6. Further, the investigation Officer recovered a shirt (M.O.5) which was worn by the deceased through the Mahazar Ex.P.7. During the time of preparing the observation mahazar, he recovered the blood stained soil M.O.3 and soil without blood M.O.4 from the scene of occurrence. On the same day at about 13 hours, he received the death intimation of Ponnusamy from the Ramachandra Hospital. Thereafter, he altered the Section of law as 302 IPC under Ex.P.15.

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(v). After receiving the death intimation, he rushed to the hospital and prepared an inquest report in the presence of the witnesses and panchayatars. The inquest report is exhibited as Ex.P16. Thereafter, he sent a requisition letter to the Hospital authorities, Coimbatore Medical College Hospital for conducting autopsy over the dead body of the deceased Ponnusami.

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(vi). After receiving the request, on the same day at about 10.15 hours P.W.11 Dr.Malliga attached with the Coimbatore Medical College and Hospital, conducted autopsy on the body of the deceased and found the following ante mortem injuries:

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"Reddish abrasion seen over back of right shoulder 11x2 cm and left forehead 7x5 cm.

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On dissection of scalp, sub scalpal contusion noted over entire scalp except right parietal region.

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Multiple crack fractures noted over skull bones except right fronto temporal bones and the dura over parietal region found torn 5x2 cm. Epidural clot weighing 5 gm over superior parietal surface of brain.

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Subdural clot weighing 80 gm over superior surfaces of brain.

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Diffuse Subdural and subarachnoid hemorrhage noted over entire brain surface dense over left parieto temporo occipital surfaces.

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Laceration of brain 3x1x0.5 cm over right occipital lobe, 3x2x0.5 cm over left temporo occipital lobes with hemorrhagic contusion of left temporo occipital lobes 5x2x2-1 cm.

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Intracerebral hemorrhage noted in brain stem region 1x1x1 cm."

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She issued Ex.P.10 post mortem certificate. She opined that the deceased would appear to have died due to Cranio Cerebral injuries sustained by him.

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(vii). After completing the post mortem, PW14 made arrangements for handing over the dead body to the relatives of the deceased. In continuation of the investigation, PW14 sent the M.O's which were recovered during the time of investigation to the Magistrate Court and submitted a requisition letter to the Magistrate for sending the same to chemical examination.

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(viii). Subsequently, PW.14, examined the Doctor and other witnesses, collected post mortem certificate and chemical examination report and on completing the investigation, he laid charge sheet against the accused for the offence under Section 302 IPC.

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(ix). Based on the above incriminating materials, the Trial Court framed the charges and the accused denied the same. In order to prove the case, prosecution has examined as many as 15 witnesses as P.W.1 to P.W.15 and marked 18 documents as Ex.P.1 to Ex.P.10, besides, 7 material objects.

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Out of the said witnesses, P.W.1 is the father of the deceased. He has stated that prior to the occurrence, due to the land dispute, accused filed a civil case against him, later

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the same was ended in his favour. Subsequent to that he sold out the property pertaining to the said civil suit. He has further stated that on 08.12.2008, at about 9 p.m., when the deceased Ponnusami is sitting near to the Vinayagar Temple, by using the wooden logs, both the accused attacked the deceased on his head. After hearing the hue and cry made by the deceased, he went to the occurrence place and found the deceased is in unconscious stage. Subsequently, he took and admitted the deceased in Ramakrishna Hospital and lodged a complaint before the Police.

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P.W.2 is the relative of P.W.1 deposed on 08.12.2008, when he was talking with P.W.1 at about 9 p.m., after hearing the sound of the deceased, he went to the scene of occurrence and on seeing, both the accused by using wooden logs, attacked the deceased. Thereafter, along with P.W.1 he also made arrangements for admitting the deceased in the hospital.

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P.W.3 to P.W.5 alleged to be the eye witnesses to the occurrence has not stated anything in support of the prosecution.

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P.W.6 is the resident of the same village, in which, the occurrence had happened, he has stated on 09.12.2008, P.W.14 arrested the accused and recorded the confession given by the second accused. He has further stated about the recovery of M.O.1 and M.O.2.

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P.W.7 has stated about the filing of the civil suit by the second accused.

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P.W.8 has stated at the time of occurrence, there is no power cut in the occurrence place.

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P.W.9 and P.W.10 are the Doctors attached with the

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Ramakrishna Hospital, Coimbatore has stated about the treatment given to the deceased.

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P.W.11 is the Doctor attached with the Coimbatore Medical College Hospital, has stated about the particulars of injury found during the time of post mortem and with regard to the opinion in respect to the cause of death.

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objects.

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P.W.13 and P.W.14 are the Police Officers has stated about the registration of the case, investigation and filing of final report in this case.

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The learned Trial Court with reference to the incriminating materials adduced by the prosecution questioned

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the accused under Section 313 Cr.P.C., for which, they pleaded not guilty. Further, they did not choose to examine any witnesses nor did he mark any documents on their side.

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Today, when the appeal is taken up for consideration, I have heard the arguments of Mr.A.Nagarajan, learned counsel appearing for the appellants and Mrs.T.P.Savitha, learned Government Advocate appearing for the respondent and also perused the records carefully.

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The first and foremost contention raised by the learned counsel for the appellants is that in the Trial Court, in each and every aspect, the learned Judge gave finding in favour of the appellants, without considering the defence version stated in the Trial Court.

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Now, considering the arguments advanced by the learned counsel for the appellants in the Trial Court the case of the prosecution is projected through the eye witnesses. In fact, on go through the evidence recorded in the Trial Court would establish that PW1, PW2 and PW15 are the witnesses to the occurrence. In the said witnesses, since PW15 has not entirely supported the case of prosecution, he was treated as a hostile witness. Even during the time of cross-examination, he had not stated anything in support of the prosecution. So, the entire evidence given by PW15 is not at all helpful to establish the case of prosecution.

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On the other hand, the another eye witness PW1 is the defacto complainant, who alone lodged the complaint before the Police officials. The said complaint was marked as Ex.P.1. In the complaint, with regard to the occurrence, he has stated during the time of occurrence at somayampalayam, the deceased was sitting in the Vinayagar Temple, at that time, the appellants came to the occurrence place with the wooden logs and due to the previous enmity attacked the deceased on his head. After seeing PW1 and PW2, the appellants were ran away from the scene of occurrence. Thereafter, during the time of giving evidence before the Trial Court, he has stated the occurrence as mentioned in the complaint. Accordingly, he corroborated the contents of Ex.P.1.

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However, according to the cross-examination, he came to the scene of occurrence only after hearing the noise. Further in the cross examination he has stated at the time of occurrence, 4 persons assaulted the deceased, further, they are ran away with wooden logs from the scene of occurrence. Further, in one area of the cross examination, he has stated that before reaching the scene of occurrence, the appellants are ran away from there. Further, he specifically stated when at the time of

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seeing the deceased, he did not seen the persons who were all participated in the occurrence. So, the evidence given by the PW1 in the cross examination, certainly prove that his evidence alone is not sufficient to believe the case of prosecution.

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Secondly, in the Trial Court, PW2 has stated in the chief examination, when at the time of occurrence, he casually talking with PW1 and with one Ramakrishnan. Further, he has stated that the distance to the scene of occurrence and to the place on which they are standing is only 50 feet. So it is probable for PW1 and PW2 to seeing the occurrence and for entering into the scene of occurrence, immediately after hearing the noise. Even though PW2 corroborated the evidence given by PW1 in respect to the occurrence, when at the time of giving the evidence in the cross examination he stated that 4 persons were assaulted the deceased. Further, in a certificate issued by Ramachandra Hospital in which the deceased was treated it was mentioned that during the time of occurrence, 4 persons were assaulted the deceased.

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Further, on go through the evidence given by PW1 and PW2, it appears that the alleged occurrence had happened in a village and nearly 10 persons were witnessed the occurrence. But nobody including PW1 and PW2 intervened into the quarrel and attempted to save the deceased. It would create a doubt whether PW1 and PW2 were present in the scene of occurrence or not. Accordingly, the evidence given by the PW1 and PW2 cannot be given much importance in respect to the assault made by the appellants. The learned trial Judge also took the same view in paragraph no.29 of the judgment.

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Secondly, in support of the prosecution, one Ponnusami and Rajasekaran were examined as PW3 and PW4 as eye witnesses to the alleged occurrence. But they are not stated anything in support of the prosecution. The other eye witness PW5 also not in favour of prosecution.

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In the said circumstances, in the Trial Court the witness attested in the Observation Mahazar and recovery mahazar was examined as PW6. In his evidence, he supported the case of prosecution in respect to the preparation of Observation Mahazar and in respect to the confession statement given by the second appellant. He has stated after recording the confession statement, from the scene of occurrence, PW14 recovered the shirt M.O.5 belonged to the deceased under the cover of mahazar (Ex.P7).

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The learned counsel appearing for the appellants further contended that as per the chemical examination report, the blood found in the shirt and the blood group of the deceased

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is entirely different one. The difference of blood group also creates a doubt whether the evidence given by the Investigation Officer is true or not. Now, on considering the said submission in the Trial Court, the medical records of deceased Ponnusami contained in page nos.1 to 33 are marked as Ex.P9, in which, it was mentioned that the blood group of deceased is O positive.

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On the other hand, on going through Ex.P.12, which was the biological reports in which it was mentioned that the blood found in the shirt belongs to A group. So, the evidence given by the Investigating Officer with regard to the arrest of accused is falsified through the result of chemical examination report. Since the shirt containing the A group blood was recovered by the Investigating Officer at the instance of confession statement given by the second accused.

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Accordingly, in this case, doubts arised as above through the evidence of PW1 and PW2, will necessarily create a doubt as whether the PW1 saw the occurrence or not. Since the other eye-witnesses not supported the case of prosecution, believing, the evidence of PW1 and PW2 is not justifiable.

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In the result, this Criminal Appeal is allowed and the conviction and sentence imposed upon the appellants in S.C.No.5 of 2010 dated 10.03.2010 by the learned First Additional District and Sessions Judge, Coimbatore is set aside and the appellants/accused are acquitted of the charges. The bail bond, if any, executed by the appellants/accused shall stand cancelled. The fine amount, if any, paid by appellants/accused shall be refunded to them.

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Sd/Assistant Registrar(Cs-IX) // True Copy// Sub Assistant Registrar msv

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1.The learned First Additional District and Sessions Judge, Coimbatore.

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2.Do-Thro' Chief Judicial Magistrate,

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Coimbatore.

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3.The Inspector of Police, M-5, Vadavalli Police Station, Coimbatore District.

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4.The Superintendent of Police,
Central Prison , Coimbatore,
5.The Public Prosecutor,
Madras High Court,
Madras.
6.The Judicial Magistrate,
No.II Coimbatore.
+1cc to Mr.K.R.Ramesh kumar,Advocate,Sr.no.44765
Crl.A.No. 182 of 2010
SPD(CO)
RMP(28/09/2018)

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Elangovan v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

Elangovan v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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