Criminal Appeal against conviction for offences under Sections 294(b) and 304(ii) IPC. Court set aside conviction as perverse, relying on witness silence of 53 days and delay in hospital treatment despite head injuries.
Accused acquit. Bail bond cancelled. Fine imposed on accused refunded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.A.734 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.12.2023
CORAM:
The Honourable MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.A.No.734 of 2018
Mariappam ...Appellant/ Accused -VsState. Inspector of Police Salem Town Police Station Salem District Crime No.164 of 2016 ...Respondent / Complainant
...Respondent / Complainant
Prayer:- Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code, 1973 to call for the records made in S.C.No.411 of 2016 on the file of the learned III Additional Sessions Court, Salem by order dated 31.10.2018.
For Appellant : Mr.A.Padmanaban For Respondent : Ms.G.V.Kasthuri Additional Public prosecutor
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J U D G M E N T
Crl.A.734 of 2018
The Criminal Appeal has been filed to set aside the judgment of conviction passed by the learned III Additional Sessions Judge, Salem in S.C.No.411 of 2018 dated 31.10.2018.
Salem had convicted the Accused for offences under Section 294(b) and 304(ii) of I.P.C.
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imprisonment. Aggrieved by the same, the Accused had preferred this Appeal seeking to set aside the judgment of conviction and sentence of imprisonment imposed by the learned III Additional Sessions Judge, Salem in S.C.No.411 of 2016 dated 31.10.2018.
4. Brief facts which are necessary for the disposal of this Criminal Appeal are as follows:-
4.1. On 03.05.2016, by around 9.15 p.m. the Deceased had gone to TASMAC outlet near Anandha Bridge near Kamala Hospital for consuming alcohol. The Appellant, in this case, who was the acquaintance of the Deceased sought a share from the alcohol that was consumed by the Deceased. Since he refused to part with the share of the liquor, the Appellant/Accused in this case, had entered into quarrel with the Deceased thereby he is alleged to have pushed him to ground. After he fell down, the Accused was alleged to have hit the head of the Deceased on the cement slab of the platform causing head injuries to the Deceased.
4.2. The Deceased was taken home by his acquaintance. From
home, the son of the deceased/P.W-1 and P.W-2 were alleged to have taken him to the Government Hospital, Salem. From the Government Hospital,
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Salem, P.W-1 had discharged his father, the injured person (since deceased) and brought him to Manipal Hospital, Salem. Since the fee charged by the Manipal Hospital is beyond the paying capacity of P.W-1, he again brought him back to the Government Hospital for treatment. Subsequently, the injured (since deceased) died on 07.05.2016. The case
was registered, based on the complaint given by P.W-1/Son of the Deceased. At that time, the case was registered as Suspicious under Section 174 of Cr.P.C. Subsequently on investigation after about 53 days from the date of the alleged occurrence, P.W-4 was alleged to have given the statement to the Investigation Officer that he had seen the Deceased being hit by the Accused. Therefore after 53 days of the occurrence, the Investigation Officer had altered the offence under Section 294(b) and 304(ii) of I.P.C and arrested the Accused. The Accused was alleged to have given confession statement to the V.A.O. The V.A.O was examined as P.W-6.
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Section 294(b) and 304(ii) of I.P.C.
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the evidence of P.W-4 was unbelievable and cannot be trusted. Ex.P-8 was the earliest document, which mentions that the Deceased had fallen from the cycle on the ground of consuming Alcohol. The said suggestion was put to the witnesses by the learned Counsel for the defence. The Investigation officer/P.W-12 in this case had not explained the reason for the delay of 53 days by the P.W-4 and ignored the statement.
Crl.A.734 of 2018
to his residence. He was the neighbour of the Deceased and acquaintance of the deceased. Therefore it was the submission of the learned Counsel for the Appellant that the learned III Additional Sessions Judge, Salem convicting the Accused, based on the evidence of P.W-4 who claims to be an eye witness was unacceptable and perverse.
attention of this Court to the reported decision, wherein the similar situation, the Hon'ble Supreme Court had rejected the evidence relied by the trial Court stating that there was delay of the said witnesses who happened to be living in the vicinity of the place of the residence of the deceased and who was acquaintance with the deceased, who had not reported the matter at the earliest opportunity to the Investigation officer. It is the submission of the learned Counsel for the Appellant that in the reported ruling, those are the facts where the witnesses remained silent for a period of 10 days. But in this case, the witness P.W-4 remained silent for more then 53 days. Therefore on the strength of the reported ruling, the learned Counsel for the Appellant seeks to set aside the judgment of conviction recorded by the learned III Additional Sessions Judge, Salem in S.C.No.411 of 2016 dated 30.10.2018.
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this Court to the suggestion put by the learned Counsel for the defence to the Doctors who were examined as P.W-5, P.W-10 and P.W-11. They had denied the suggestion that falling from the cycle with the influence of the alcohol will not cause this much of injury. Therefore the judgment of conviction recorded by the learned III Additional Sessions Judge, Salem is not perverse and it is a well reasoned order does not warrant any interference by this Court. The learned Additional Public Prosecutor submits that the Appeal lacks merit and is to be dismissed.
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Point for Consideration:
Whether the judgment of conviction recorded by the learned III Additional Sessions Judge, Ssalem in S.C.No.411 of 2016 dated 30.10.2018 is to be set aside as perverse.
his father's treatment was not affordable to him and it was beyond his
Crl.A.734 of 2018
paying capacity. Therefore the Injured was again brought back to the Government Hospital, Salem. It is to be noted that the injuries suffered by the Deceased was in the head and he had already lost his consciousness. At that stage, the first one hour of treatment for the injuries is treated as golden hour by the Doctors to give better treatment. By the time the Injured was taken to the private Hospital and returned back, that golden hour was lost in transporting the grievously injured and unconscious man. Subsequently the injured died.
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Counsel for the Appellant, the evidence of P.W-4 was not trust worthy. Also, it is to be noted that the precious time/golden hour was lost in taking the Deceased to the Hospital while he was under the influence of alcohol, having suffered injury on his head shifted from Government Hospital to private Hospital and once again brought back to Government Hospital. The Investigation Officer having proceeded with the investigation on the strength of the statement of P.W-4 had altered the offence under Section 294(b) and 304(ii) of I.P.C. The evidence available before the learned III Additional Sessions Judge, Salem was not against the Accused except P.W-
for the trial Judges that if there is possibility of acquittal, naturally the Accused is entitled to acquittal. Here even though, the records are otherwise, the learned Judge had convicted the Accused. It is found perverse. Therefore the same is set aside. The judgment of conviction recorded by the learned III Additional Sessions Judge, Salem in S.C.No.411 of 2016 dated 30.10.2018 is found perverse and set aside.
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Appellant
Appellant and against the prosecution. In the result, the Appeal is
allowed . The Appellant/Accused is acquitted.
The Bail bond if any executed by the Accused is to be cancelled, The fine imposed on the Accused is to be refunded.
11.12.2023
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Index : Yes/No Speaking/Non-speaking order
To
SATHI KUMAR SUKUMARA KURUP, J.,
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Crl.A.No.734 of 2018
11.12.2023
1 issue framed by the court
Whether the judgment of conviction recorded by the trial judge is perverse and based on unworthy evidence.
3 provisions across 2 enactments
Mariappam
State of Tamil Nadu
Sathi Kumar Sukumara Kurup
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
