Kathiravan Vs State Rep.by

judgment dated 27.01.2010 passed in S.C.No.121 of 2011 on the file of the II Additional Sessions Court, City Civil Court, Chennai and to set aside the

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For Appellant(s): Mr.K.Ethirajalu Legal aid Counsel For Respondent(s): Mr.A.Damodaran Additional Public Prosecutor assisted by Ms.Arifa Thasneem

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JUDGMENT (delivered by M.Jothiraman, J.)

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Challenging the judgment dated 27.01.2010 passed in S.C.No.121 of

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2011 on the file of the II Additional Sessions Court, City Civil Court, Chennai, the appellant has preferred the above appeal.

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The brief case of the prosecution is as follows:

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2.1 PW1-Babu, who is the de facto complainant and an auto driver,

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deposed that on 26.09.2010 about 11.00 p.m., the appellant came with a cement plaster stone (M.O.1) and repeatedly attacked Elango on his head; seeing so, when he and PW2 shouted at the appellant, the appellant ran away with the cement plaster stone (M.O.1); Elango is his sister Valli’s son and therefore, he informed the same to Valli and thereafter, he went to Aminjikarai Police Station, informed about the incident and lodged a complaint (Ex.P1); Elango was taken to the hospital in an ambulance,

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where, he was declared brought dead; thereafter, he was enquired by the police with regard to the incident.

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2.2 PW2-Koteeswaran, who is the relative of Elango and an auto driver, deposed that he knew the appellant, who was doing a lock repair work; a day before the occurrence, there was a wordy quarrel between the appellant and Elango, during which, the appellant threatened Elango that he will kill him; Elango told the above incident to PW1, who in turn, told the same to him (PW2); on 26.09.2009 about 10.30 p.m., Elango went to the helmet shop, which was situated opposite to Skywalk Mall, to sleep at night; around 11.00 p.m., the appellant came with the cement plaster stone (M.O.1) and smashed on the head of Elango by abusing him with filthy language and the same was witnessed by PWs.1 and 2, who were standing in the opposite side and they made noise; the appellant fled away from the place with the cement plaster stone (M.O.1) near Koovam river; they went and searched for the appellant in the night and thereafter, when they returned, they were informed that an ambulance has been called for; after the arrival of the ambulance, it was informed that Elango was dead; thereafter, PW1 informed his (PW2’s) aunt and went to the police for lodging the complaint (Ex.P1).

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2.3 PW3-Gopi deposed that he knew the appellant; on 26.09.2010 about 10/11.00 p.m., when he along with one Sukumaran (PW6) were coming near Skywalk Mall, they saw PWs.1 and 2 running and shouting “do not beat, do not beat”; when they came out of Skywalk Mall, they found that Elango was lying with bleeding injuries near the helmet shop; he saw the appellant running with the cement plaster stone (M.O.1) near the Koovam river; on seeing Elango with blood injuries, they were frightened and so, he and PW6 went to their home.

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2.4 PW4-Asokan, who is the father of Elango, deposed that he knew the appellant, who is running a lock repair shop near State Bank of India (SBI) ATM, Poonamallee High Road; he heard that on 18.09.2010, when Elango parked his auto in front of the shop of the appellant, a wordy quarrel occurred between them and he also came to know that the appellant threatened Elango that the appellant will do away with him; on 26.09.2010, in the wee hours, around 1.00 a.m., PW1 came to his house and informed that the appellant smashed his son’s head with the stone and his son was lying in a pool of blood; immediately, he rushed to the place of occurrence and found that his son was dead and so, the ambulance left.

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2.5 PW5-Bhuvaneswari, who is the wife of Elango, deposed that on

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the date of occurrence, she was at her mother’s house; she was informed over phone by her mother-in-law that her husband Elango was lying dead in front of the helmet shop and asked her to come immediately; she rushed to Government Kilpauk Medical College and Hospital and saw her husband at the mortuary. She also deposed that the appellant was a tenant in their house for about 1½ years; at that time, the appellant and her husband Elango used to consume alcohol together and quarrel among themselves; on 18.09.2010 also, a quarrel arose between the appellant and her husband; at that time, the appellant challenged that he will not spare her husband; Elango told the threat made by the appellant to her; on 26.09.2010, around 11.00 a.m., her husband spoke to her over phone; on the same day, she received information about the occurrence at night over the phone.

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2.6 PW6-Sukumaran, deposed that on 26.09.2010 at about 11.00 p.m., he along with Gopi (PW3) were coming out of Skywalk Mall; at that time, PW1 and 2 were running towards the helmet shop by shouting “do not beat, do not beat”; the appellant smashed the head of Elango, who was lying and after hitting Elango, the appellant ran away towards Koovam river by holding the stone (M.O.1).

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2.7 PW7-Manikandan, who is an auto driver, deposed that on 18.09.2010 at about 5.00 p.m., Elango parked his auto near the lock repair shop of the appellant; the appellant asked Elango to move away the auto; at that time, there was a wordy altercation held between Elango and the appellant; while so, the appellant challenged Elango that his life is in his hands.

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2.8 PWs.8 and 10 deposed that on 26.09.2010 around 2.30 a.m. they found that the appellant lying in a pool of blood in front of the helmet shop; the Inspector of Police visited the scene of occurrence and prepared observation mahazar (Ex.P2) and recovered bloodstained cement plaster (M.O.2), cement plaster (M.O.3) and broken pieces of brick stone (M.O.3) under recovery mahazar (Ex.P3) and they signed as witnesses and enquired by the Inspector of Police.

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2.9 PW18-Seenidurai, Sub-Inspector of Police, Aminjikarai, deposed that he has received the complaint (Ex.P1) from PW1 on 26.09.2010 about 1.30 a.m. during night and registered a case in Crime

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No.1186 of 2010 under Section 302 IPC and prepared the printed FIR (Ex.P10). He forwarded the FIR (Ex.P10) along with the complaint (Ex.P1) to the jurisdictional Court through the Head Constable (PW17); he also sent the case diary to the Inspector of Police for investigation.

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2.10 PW20-Anantharaman, Investigating Officer, deposed that after receiving the FIR (Ex.P10), he took up the case for investigation and proceeded to the place of occurrence on 27.09.2010 at 2.30 a.m. and he has prepared the observation mahazar (Ex.P2) and drawn rough sketch (Ex.P16). He also recovered M.Os.2 to 4 from the place of occurrence under recovery mahazar (Ex.P3) in the presence of PWs.8 and 10; he also took up the photograph from the place of occurrence with the help of a photographer one Velmurugan, which were marked as M.O.7; thereafter, he conducted inquest over the body of Elango in the presence of Panchayatars and prepared inquest report (Ex.P17) and sent the body of Elango to the Government Kilpauk Medical College and Hospital through a Head Constable for conducting postmortem; thereafter, he examined the witnesses and recorded their statements.

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2.11 PW9-Dr.M.Baskar, who was attached to the Government

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Kilpauk Medical College and Hospital, deposed that on 27.09.2010 around 5.35 a.m., the body of Elango was brought to the hospital and he issued accident register (Ex.P2A) and noted the following injuries:

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(1)laceration over right parietal area 3 cm x 1 cm x bone depth

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(2)laceration over left parietal area 4 cm x 1 cm x bone depth with bleeding from both nostrils and both ears

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2.12 PW15-Dr.Hari Santhasivan, deposed that on receipt of the requisition from PW20, he conducted autopsy on the body of Elango on 27.09.2010 around 3.00 p.m. and he noticed the following injuries:

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“1) lacerated injury over the right parietal area 3 cm x 1

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cm x bone depth

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2) lacerated injury over left parietal area 4 cm x 1 cm x bone depth with bleeding from both nostrils and both ears

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3) on dissection of head, extensive sub scalp haematoma on both sides of the scalp 20 cm x 10 cm, the underlying right and left parietal, temporo, mastoid broken at multiple sites, the underlying membranes torn with B1 temporal parietal sub arachnoid hemorrhage. Both cerebral hemispheres contused diffusely with intra ventricular hemorrhage. Base of the skull in anterior and posterior cranial fossa broken irregularly, hyoid bone is intact. Larynx and trachea empty. Heart is normal in

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size; c/s chambers empty. Lungs normal in size; c/s pale stomach contains 150 ml of white colored fluid without any specific smell. Liver spleen and both kidneys normal in size. c/s pale, intestines contains brownish chyme. Bladder is empty; spine and pelvis intact and normal.”

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He issued postmortem report (Ex.P9) and also opined that, “the deceased would appear to have died of cranio cerebral injuries”.

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2.13 PW12-Karunakaran, who is the Junior Engineer in the Electricity Department, issued a report (Ex.P6) stating that the street lights were glowing on the date of occurrence.

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2.14 PW20, Investigating Officer, further deposed that in continuation of his investigation on 27.09.2010 about 11.00 a.m., he arrested the appellant, who gave voluntary confession statement, in the presence of PW11 and one Mohan; pursuant to the confession statement, the appellant produced the cement plaster stone (M.O.1) from the hide out place beneath the bridge near Skywalk Mal and the same was recovered under recovery mahazar (Ex.P5); thereafter, on the same day around 12.30 p.m. the appellant produced bloodstained white color shirt (M.O.5) and bloodstained

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blue color lungi (M.O.6), which were worn by him at the time of occurrence, from the back side of his brother’s house and the same were recovered under recovery mahazar (Ex.P5); he also recovered the disc containing CCTV footage (M.O.8) under Form 95 (Ex.P18) from one Alexander; he sent the appellant to the judicial custody; he also collected bloodstained kaki shirt (M.O.9), bloodstained blue color striped lungi (M.O.10), bloodstained blue color innerwear (M.O.11) from the body of Elango through the Head Constable; he has also taken steps to record the statements of PWs.1, 2, 6, 7 and 17 under 164 Cr.P.C.; he also gave request to send the case properties for chemical examination and scientific analysis; he examined the witnesses and recorded their statements; he also examined PW13, Scientific Assistant, who examined the case properties which were sent to the Court after chemical analysis, issued chemical report (Ex.P7).

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2.15 PW14-Vimala Thiyagarajan, Assistant Director, Forensic Sciences Department, issued serology report (Ex.P8).

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2.16 PW19-Thirumagal, learned XI Metropolitan Magistrate, Egmore, recorded statements under Section 164 Cr.P.C.

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2.17 After completing the investigation and based on the evidence collected, the Investigating Officer (PW20) filed a final report in P.R.C.No.19 of 2011 before the V Metropolitan Magistrate, Egmore, Chennai, against the appellant for the offence under Section 302 IPC.

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2.18 On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.121 of 2011 and was made over to the II Additional Sessions Court, Chennai, for trial.

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2.19 The trial Court framed the charge under Section 302 IPC against the appellant herein. When questioned, the appellant pleaded 'not guilty'.

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2.20 To prove the guilt of the appellant, the prosecution examined twenty witnesses and marked eighteen exhibits and eleven material objects.

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2.21 After completion of prosecution side evidence, when the appellant were questioned under Section 313 Cr.P.C. on the incriminating

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circumstances appearing against him, he denied the same. When the police displayed the CD and asked the appellant as to who is the man in the video, the appellant pleaded innocence and stated that he was beaten by the police and a false case has been put upon him. No witness was examined on the side of the appellant, however, during cross-examination, two exhibits were marked.

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2.22 After considering the oral and documentary evidence and upon hearing either side, the trial Court, by judgment dated 27.01.2020 in S.C.No.121 of 2011, has convicted and sentenced the appellant as under:

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*Provision under which convicted*	*Sentence*
Section 302 IPC	Life imprisonment and fine of
	Rs.5,000/-, in default to undergo three months simple imprisonment.

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2.23 Aggrieved over the same, the appellant has preferred the above appeal.

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The learned counsel appearing for the appellant/accused would submit that there are contradictions between the evidence of PWs.1 and 2, who claim to be the eyewitnesses to the occurrence. The Court below has

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failed to consider the contradictions i.e ., when the appellant had used the stone to hit on the head of Elango. PWs.1 and 2 have not tried to save Elango, but, only shouted at the appellant and also, the place of occurrence was dark in night, but, PWs.3 and 6 stated that they saw Elango lying on the road side with injuries and on fear, they rushed to their house, which is contrary to the evidence of PWs.8 and 10, who were cited by the prosecution to prepare observation mahazar (Ex.P2), rough sketch (Ex.P16) and recovery mahazar (Ex.P3) of material objects from the scene of occurrence. He would further submit that PW1 deposed that the appellant repeatedly attacked Elango with the cement plaster stone (M.O.1), whereas, PW2 deposed that the appellant had put the stone on the head of Elango saying that Elango should die by using unparliamentary words and therefore, the presence of PWs.1 and 2 at the occurrence place is highly doubtful. Though the alleged occurrence had taken place at 11.00 p.m. in night, PW1 has lodged the complaint only at early morning at 1.30 a.m. though the police station is situated within 1 km distance from the alleged place of occurrence. Further, the prosecution has failed to explain the delay in lodging the complaint. He would further submit that though the FIR came to be registered on 27.09.2010 early morning at 1.30 a.m., the FIR reached

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the Court concerned only at 5.00 a.m., but, the reason for the delay has not been explained by the prosecution. Though PWs.1, 2, 8 and 10 have stated that they have seen Elango lying on a pool of blood, they have not chosen to take him immediately to the hospital and though they deposed that an ambulance has arrived at 1.00 a.m. and the person, who came from the ambulance himself declared that Elango has died, but, the prosecution has failed to explain as to who informed the ambulance and as to why the ambulance arrived only at mid night around 1.00 a.m., though the alleged occurrence was held at 11.00 p.m. The prosecution has failed to prove the motive for the occurrence and also failed to prove the case beyond all reasonable doubts. The Court below has failed to consider the reasons for recording statements of the prosecution witnesses under Section 164 Cr.P.C. by the learned IX Metropolitan Magistrate, Egmore, Chennai, which were marked as Exs.P11 to 15. Therefore, the conviction of the appellant without proper appreciation of the evidence by the Court below is unsustainable in law and the same is liable to set aside.

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Per contra , the learned Additional Public Prosecutor would submit that the prosecution witnesses PWs.1 and 2 are the eyewitnesses to

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the occurrence, who clearly deposed that the appellant assaulted Elango using the cement plaster stone (M.O1) and ran away from the scene of occurrence with the cement plaster stone (M.O.1) towards Koovam river. PW8 and 10 also clearly deposed that the appellant ran away from the scene of occurrence with the cement plaster stone (M.O.1), while they were returning from their work to their home. The prosecution has clearly established the motive for the occurrence through the evidence of PWs.2, 4 and 5. Further, PW7 is the eyewitnesses to the parking of the auto of Elango in front of the lock repair shop of the appellant and he categorically deposed that on 18.09.2010 around 5.00 p.m. Elango parked his auto near the shop of the appellant and therefore, the appellant quarreled with Elango and threatened him that his death is in his hands. The prosecution has also clearly proven the recovery from the appellant in pursuance of the confession statement given by the appellant and the material objects have been recovered in the presence of PW11. The evidence of the eyewitnesses PWs.1 and 2 with regard to the injuries sustained by Elango is fully corroborated by the evidence of Dr.M.Baskar (PW9), who issued accident register (Ex.P2A) and PW15 Dr.Hari Santhasivan, who conducted postmortem and issued postmortem certificate (Ex.P9), also opined that

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Elango would have been died of carnio cerebral injuries and in his evidence he has clearly stated that the injuries found on Elango could have been occurred by the cement plaster stone (M.O.1). The prosecution has clearly proved the case beyond all reasonable doubts and there is no reason to interfere with the conviction and sentence imposed by the Court below.

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We have considered the submissions made on either side and perused the materials on record.

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In order to prove the guilt of the appellant, the prosecution has relied upon the following circumstances:

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(1)Motive

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(2)Eye-witnesses

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(3)Medical evidence

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1) Motive:

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(i) As per the evidence of PW4/Asokan, father of Elango, he came to know that on 18.09.2010, when Elango parked his auto in front of the lock repair shop of the appellant, a wordy quarrel arose between them,

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during which, the appellant is said to have threatened Elango that he will do away with him and on 26.09.2010, in the wee hours, around 1.00 a.m., PW1 came to his house and informed that the appellant smashed his son’s head with the stone and his son was lying in a pool of blood and so, immediately, he rushed to the place of occurrence and found that his son was dead and so, the ambulance left.

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(ii) The wife of Elango viz . Bhuvaneswari (PW5), in her evidence, has stated that the appellant was a tenant in their house for about 1½ years and at that time, the appellant and her husband Elango used to consume alcohol together and quarrel among themselves; on 18.09.2010 also, a quarrel arose between the appellant and her husband and at that time, the appellant challenged that he will not spare her husband; Elango told the threat made by the appellant to her; on 26.09.2010, around 11.00 a.m., her husband spoke to her over phone; on the same day, she received information about the occurrence at night over the phone.

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(iii) PW7-Manikandan, who is an auto driver, also spoken about the incident occurred between the appellant and Elango on 18.09.2010.

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(iv) From the evidences of PWs.4, 5 & 7, the prosecution has

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clearly proved the motive for the occurrence that on 18.09.2010, prior to the occurrence, Elango parked his auto near the lock repair shop belongs to the appellant, in turn, the appellant asked Elango to move away the auto and at that time, there was a wordy altercation held between Elango and the appellant, while so, the appellant challenged Elango that his life is in his hands.

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2) Eyewitnesses:

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(i) PW1-Babu, who is the de facto complainant and an auto driver, in his evidence, has stated that on 26.09.2010 about 11.00 p.m., the appellant came with a cement plaster stone (M.O.1) and repeatedly attacked Elango on his head; seeing so, when he and PW2 shouted at the appellant, the appellant ran away with the cement plaster stone (M.O.1); Elango is his sister Valli’s son and therefore, he informed the same to Valli and thereafter, he went to Aminjikarai Police Station, informed about the incident and lodged a complaint (Ex.P1); Elango was taken to the hospital in an ambulance, where, he was declared brought dead; thereafter, he was enquired by the police with regard to the incident.

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(ii) PW2-Koteeswaran, who is the relative of Elango and an auto driver, in his evidence has stated that a day before the occurrence, PW1 informed him there was a wordy quarrel between the appellant and Elango, during which, the appellant threatened Elango that he will kill him; on 26.09.2009 around 11.00 p.m., the appellant came with the cement plaster stone (M.O.1) and smashed on the head of Elango by abusing him with filthy language and the same was witnessed by PWs.1 and 2, who were standing in the opposite side and they made noise; the appellant fled away from the place with the cement plaster stone (M.O.1) near Koovam river; they went and searched for the appellant in the night and thereafter, when

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they returned, they were informed that an ambulance has been called for; after the arrival of the ambulance, it was informed that Elango was dead; thereafter, PW1 informed his (PW2’s) aunt and went to the police for lodging the complaint (Ex.P1).

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(iii) PW3-Gopi and PW6-Sukumaran, in their evidence, have stated

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that they knew the appellant and on 26.09.2010 about 10/11.00 p.m., when they were coming near Skywalk Mall, they saw PWs.1 and 2 running and shouting “do not beat, do not beat”; when they came out of Skywalk Mall,

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they found that Elango was lying with bleeding injuries near the helmet shop and the appellant was running with the cement plaster stone (M.O.1) near the Koovam river; on seeing Elango with blood injuries, they were frightened and so, they went to their home.

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(iv) The prosecution has proved the case that the appellant assaulted Elango with the cement plaster stone (M.O.1) through the evidence of PWs.1 and 2, who are the eyewitnesses to the occurrence and their evidence has been corroborated by the witnesses PWs.3 and 6.

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(vi) PW11, in his evidence, has stated that on 27.09.2010 around 11.00 a.m., when PW20 arrested the appellant, and on inquiry, the appellant gave voluntary confession statement; pursuance to the confession statement, the weapon used for the crime viz . cement plaster stone (M.O.1) has been recovered from the hide out place under recovery mahazar (Ex.P5); thereafter, the appellant took them to his brother’s house and handed over bloodstained white color shirt (M.O.5) and bloodstained blue color lungi (M.O.6) and photographs (M.O.7) under recovery mahazar (Ex.P4).

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(ii) PW20, Investigating Officer, deposed that on 27.09.2010 about

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11.00 a.m., he arrested the appellant, who gave voluntary confession statement, in the presence of PW11 and one Mohan; pursuance to the confession statement, the appellant produced the cement plaster stone (M.O.1) from the hide out place beneath the bridge near Skywalk Mall and the same was recovered under recovery mahazar (Ex.P5); thereafter, on the same day around 12.30 p.m. the appellant produced bloodstained white color shirt (M.O.5) and bloodstained blue color lungi (M.O.6), which were worn by him at the time of occurrence, from the back side of his brother’s house and the same were recovered under recovery mahazar (Ex.P5).

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3) Medical evidence:

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(i) PW9-Dr.M.Baskar, who was attached to the Government

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Kilpauk Medical College and Hospital, deposed that on 27.09.2010 around 5.35 a.m., the body of Elango was brought to the hospital and he issued accident register (Ex.P2A) and noted the following injuries:

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(3)laceration over right parietal area 3 cm x 1 cm x bone depth

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(4)laceration over left parietal area 4 cm x 1 cm x bone depth with bleeding from both nostrils and both ears

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(ii) PW15-Dr.Hari Santhasivan, who conducted autopsy on the

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body of Elango on 27.09.2010 around 3.00 p.m., has noticed the following injuries:

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“1) lacerated injury over the right parietal area 3 cm x 1

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cm x bone depth

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2) lacerated injury over left parietal area 4 cm x 1 cm x bone depth with bleeding from both nostrils and both ears

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3) on dissection of head, extensive sub scalp haematoma on both sides of the scalp 20 cm x 10 cm, the underlying right and left parietal, temporo, mastoid broken at multiple sites, the underlying membranes torn with B1 temporal parietal sub arachnoid hemorrhage. Both cerebral hemispheres contused diffusely with intra ventricular hemorrhage. Base of the skull in anterior and posterior cranial fossa broken irregularly, hyoid bone is intact. Larynx and trachea empty. Heart is normal in size; c/s chambers empty. Lungs normal in size; c/s pale stomach contains 150 ml of white colored fluid without any specific smell. Liver spleen and both kidneys normal in size. c/s pale, intestines contains brownish chyme. Bladder is empty; spine and pelvis intact and normal.”

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He issued postmortem report (Ex.P9) and also opined that, “the deceased would appear to have died of cranio cerebral injuries”.

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(iii) The medical evidence of PWs.9 and 15 corroborated the

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evidence of the eye-witnesses viz . PWs.1 and 2 with regard to the injury sustained by Elango. PW15 has also given opinion to the effect that the injuries found on the dead body of Elango would have caused due to the assault with the cement plaster stone (M.O.1). Therefore, the prosecution has proved that the injuries found in the body of Elango have been caused due to the assault by the appellant using the cement plaster stone (M.O.1).

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The prosecution has proved the motive for the occurrence through the evidence of PWs.4, 5 and 7 and their evidence are cogent, clear and convincing. Similarly, the evidence of the eyewitnesses viz. PWs.1 and 2 with respect to the occurrence are cogent and convincing and there is no reason to disbelieve their evidence. PWs.3 and 6 have also corroborated the evidence of PWs.1 and 2 that the appellant fled away from the place of occurrence by holding the cement plaster stone (M.O.1).

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In light of the foregoing discussions, this Court is of the view that the prosecution has proved its case beyond all reasonable doubts and there is no perversity or infirmity in the findings of the trial Court

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warranting interference and there is no merit in this appeal and therefore, the same is liable to be dismissed.

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In the result, this criminal appeal is dismissed, confirming the judgment dated 27.01.2010 passed in S.C.No.121 of 2011 on the file of the II Additional Sessions Court, City Civil Court, Chennai. The trial Court is directed to secure the custody of the appellant, if he is on bail and send him to prison to undergo the remaining period of sentence. Connected Crl.M.P. is closed.

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(P.V., J.) (M.J.R., J.) 22.01.2026

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nsd Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No

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To