{"id":227109,"date":"2008-12-02T00:00:00","date_gmt":"2008-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sankar-vs-state-on-2-december-2008"},"modified":"2017-11-09T13:06:28","modified_gmt":"2017-11-09T07:36:28","slug":"sankar-vs-state-on-2-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sankar-vs-state-on-2-december-2008","title":{"rendered":"Sankar vs State on 2 December, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Sankar vs State on 2 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 2\/12\/2008\n\nCORAM\nTHE HONOURABLE MR. JUSTICE R. REGUPATHI\nand\nTHE HONOURABLE MR. JUSTICE R. SUBBIAH\n\nCriminal Appeal No.273 OF 2002\n\n1.  Sankar\n2.  Veeraiyan\t\t\t...\tAppellants\n\nVs\n\nState\nrep. by The Inspector of Police\nThanjavur (South P.S.).\t\t...\tRespondent\n\n\tCriminal Appeal under Section 374 of Cr.P.C., to call for the records in\nS.C. No.160 of 2000, on the file  of the II Additional District and Sessions\nJudge, Thanjavur and set aside the order of conviction and sentence dated\n12\/12\/2001 against the appellants.\n\n!For appellant ... Mr.C.Mayilvahana Rajendran\n^For respondent... Mr.P.N.Pandithurai          \t\n\t\t   Addl.Public Prosecutor\n- - - - -\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was made by
\nR. REGUPATHI, J)<\/p>\n
\tThis Criminal Appeal has been filed against the order of conviction and
\nsentence, dated 12\/12\/2001, passed in Sessions Case No.160 of 2000 by the II
\nAdditional District and Sessions Judge (Protection of Civil Rights), Thanjavur.\n<\/p>\n
\t2. The appellants\/A.1 and A.3 are friends.  Initially, the
\nrespondent\/Police charge sheeted one Murugan (A.2) and the appellants herein and
\npending trial, A.2 died; therefore, the trial proceeded as against the
\nappellants\/A.1 and A.3.  The allegation is that, on 26\/7\/1999 at 4.45 p.m., at
\nVilar Road, Thanjavur, the deceased quarrelled with the sister of A.1 by name
\nMalliga, therefore, A.1 developed enmity against the deceased  and, with the
\ncommon intention to commit the murder of the deceased,  on the same day at 5.00
\np.m., all the accused joined together and at Pookara Vilar Road near flower
\nmarket, Thanjavur,  A.1 beat the deceased on face and head with wooden log while
\nA.2 assaulted on the back with wooden log and the third accused kicked the
\ndeceased on the chest; and as a result, the deceased succumbed to the injuries,
\nresulting in registration of the case.\n<\/p>\n
\tLearned trial Judge framed two charges against the accused and, as per the
\nfirst charge, the first and second accused armed with wooden log assaulted the
\ndeceased on the head, face and back and the third accused kicked the deceased on
\nthe chest and thereby, committed an offence under Section 302 r\/w. 34 IPC.  As
\nper the second charge, the appellants\/accused threatened P.W.1, brother of the
\ndeceased, who attempted to prevent them from attacking the deceased  and thereby
\ncommitted an offence under Section 506 (ii) r\/w. 34 IPC.
\n\tInitially, when the accused were questioned, they denied the commission of
\nthe offence and pleaded innocence and  therefore, the trial against them was
\ntaken up.  The prosecution, to substantiate its case, examined P.Ws.1 to 12,
\nmarked Exs.P.1 to P.18 and produced M.Os.1 and 2.   The learned trial Judge, on
\nconclusion of the trial, found the accused\/appellants guilty and sentenced them
\nto undergo life imprisonment for the offence under Section 302 r\/w. 34 IPC and
\nto undergo simple imprisonment for three years for the offence under Section 506\n<\/p>\n
(ii) r\/w. 34 IPC.  The sentences imposed were ordered to run concurrently.
\nAggrieved against the order of the trial Court, the present Criminal Appeal has
\nbeen filed.\n<\/p>\n
\t 3.  The case of the prosecution, as spoken to by its witnesses, is
\nbriefly narrated below:-\n<\/p>\n
\tP.W.1 is the brother of the deceased. The deceased was earlier employed by
\nthe elder brother of the first accused to sell arrack and when the deceased was
\nconfined under preventive detention, the brother of the first accused failed to
\nmaintain the deceased’s family, and in that background,  there was enmity
\nbetween the deceased and A.1.  Whileso, on 26\/7\/1999 at 5.00 p.m., when P.W.1
\nwas proceeding in his tricycle near Pookara Street, he found A.1 and A.2, armed
\nwith wooden logs beating the deceased and on the deceased falling down, A.3
\nstamping him on the chest with legs.  When P.W.1 questioned their act, the first
\naccused threatened him that he would break his lame leg.  On P.Ws.3 and 4
\nraising alarm, the accused ran away from the scene of occurrence.  The deceased
\ntold P.W.1 that he unknowingly dashed against the sister of the first accused,
\nas a result, the accused assaulted him.  With the assistance of P.Ws.3 and 4,
\nthe injured was taken in an autorickshaw to Thanjavur Medical College Hospital.
\n\tP.W.2 did not support the prosecution case, therefore, he was treated
\nhostile.  P.Ws.3 and 4 corroborate the evidence of P.W.1 and they have spoken to
\nabove the overtacts of the accused.  On the injured being brought to the
\nhospital, he was admitted by P.W.5, the Medical Officer to whom the wife of the
\ninjured told that her husband was assaulted by two persons.  On examining the
\ninjured, he issued Ex.P.2 Accident Register, wherein he found four injuries.
\n\tOn receipt of intimation from the hospital at 9.15 p.m., P.W.10 the  Head
\nConstable attached to Thanjavur South Police Station proceeded to the Hospital.
\nAs the deceased was unable to speak, he went to the house of P.W.1 and took him
\nto the Police Station, where a statement under Ex.P.1 was obtained from him.
\nThe Head Constable registered a case in Crime No.250 of 1999 under Sections 324
\n& 506 (ii) IPC and prepared Ex.P.6 First Information Report.  On the next day at
\n7.00 a.m., he visited the scene of occurrence and prepared Observation Mahazar
\nEx.P.4 and  rough sketch Ex.P.7.  On receiving death intimation\/Ex.P.11 from the
\nhospital at 2.45 p.m., he altered the penal provision as one under Section 302
\nIPC, prepared Ex.P.8 Express Report and despatched the same to the higher-ups.\n<\/p>\n
\tP.W.8, Grade – I Constable attached to Thanjavur South Police Station,
\nafter receiving the Express  Report in Crime No.250 of 1999, delivered the same
\nto Judicial Magistrate No.1, Thanjavur at 8.00 p.m.<\/p>\n
\tP.W.12 the Inspector of Police, Thanjavur (South) Circle, after receiving
\na copy of the Express Report through P.W.8, took up investigation and proceeded
\nto the scene of occurrence along with P.W.10, who conducted preliminary enquiry
\nin the case.  The Inspector verified the correctness of the  Observation Mahazar
\nand rough sketch prepared by the Head Constable.   On 28\/7\/1999, he conducted
\ninquest over the dead body in the presence of Panchayatdars between 7 a.m. and
\n10 a.m. Ex.P.12 is the inquest report.   Thereafter, he sent the dead body
\nthrough P.W.9 Head Constable along with the requisition  for post-mortem.\n<\/p>\n
\tP.W.11,  the Professor of Forensic Medicine attached to Thanjavur Medical
\nCollege, conducted autopsy on the dead body of the deceased at 2.30 p.m., on
\n28\/7\/1999 and issued Ex.P.9 Post-mortem certificate  wherein, she noted down the
\nfollowing:-\n<\/p>\n
External injuries:-\n<\/p>\n
\t1.  An inverted ‘U’ shaped surgical sutured wound measuring 25 cms seen
\ninvolving the right fronto tempero perietal regions of the scalp with intact
\nsilk sutures.\n<\/p>\n
\t2.  Abrasion 2 1\/2 x 1 cm seen over the right perietal region.\n<\/p>\n
\t3.  Abrasion 4 x 2 cms seen over the left tempero perietal region.\n<\/p>\n
\t4.  Sutured laceration 2 cms long seen over the outer end of right
\neyebrow.  On dissection it was 1\/2 cm broad and bone deep with surrounding
\ncontusion.\n<\/p>\n
\t5.  Abrasion 3 x 2 cms seen over the left side of nose.\n<\/p>\n
\t6.  Abrasion 1 x 1\/2 cm seen over the outer aspect of upper 3rd of left
\nforearm.\n<\/p>\n
\t7.  Abrasion 5 x 3 cms seen over the postero medical aspect of left elbow.\n<\/p>\n
\t8.  Two linear scratch abrasions seen over the back of upper 3rd of left
\narm and back of left shoulder measuring 5 x 1\/2 cms and 3 x 1\/2 cms
\nrespectively.\n<\/p>\n
\t9.  Abrasion 2 x 1 cms over the front of left knee.\n<\/p>\n
\t10.  Abrasion 2 x 1 cms seen over the back of lower 3rd of right forearm.\n<\/p>\n
\t11.  Scratch abrasion 5 x 1\/2 cms seen over the antero medical aspect of
\nright elbow.\n<\/p>\n
\t12.  Abrasion 9 x 4 cms seen over the back of right shoulder blade region.\n<\/p>\n
\t13.  Two abrasions each measuring 3 x 1 cms and 5 x 4 cms seen over the
\nright infra scapular region.\n<\/p>\n
Internal injuries:-\n<\/p>\n
\t14.  On reflucting the scalp subscalpal contusion involving the scalp
\nexcept over the occipital region.\n<\/p>\n
\t15.  Surgical removal of bone 8 x 6 cms involving the right fronto perieto
\ntemporal bones (surgical creniotomy)<\/p>\n
\t16.  Depressed fracture over an area of 3 1\/2 x 3 cms seen over the right
\nside of the frontal bone close to the coronal suture with sutural separation of
\ncoronal suture on both sides with a linear fracture of 6 cms long involving the
\nright temporal bone.\n<\/p>\n
\t17.  A linear fissured fracture seen involving the left frontal bone
\nmeasuring 5 cms found to join the coronal suture at its medial end.\n<\/p>\n
\t18.  On opening the skull cap – extradural haemorrhage seen underneath the
\ncoronal sutural line on both sides.  Surgical suturea seen on the dura
\ncorresponding to surgical removal of bone.\n<\/p>\n
\t19.  Laceration with surrounding contusion over an area of 10 x 7 cms x 2
\ncms seen over the right fronto parietal lobe of brain.  Diffuse subdural
\nhaemorrhage and subarach-noid on both cerebral hemispheres intra cerebral
\nhaemorrhage in both sides sub dural basal blood clots on both sides noted.\n<\/p>\n
The Doctor has opined that the deceased would appear to have died due to head
\ninjuries.\n<\/p>\n
\t On 29\/7\/1999 at 3.00 p.m., P.W.12  arrested A.2  and recorded his
\nconfession statement and  the admissible portion thereof is Ex.P.13.  A.2
\nproduced  a wooden log concealed under a bush near Arasamarathu Pillaiyar Temple
\nand the same was seized as M.O.2 in the presence of witnesses under Ex.P.14.  On
\nthe same day at 5.00 p.m., the Investigating Officer arrested A.1,  who
\nvoluntarily gave a confession statement and the admissible portion is Ex.P.15.
\nA.1 produced the wooden log M.O.1 and the same was recovered under Ex.P.16 in
\nthe presence of witnesses.  The accused were sent for remand and the Material
\nObjects were forwarded under Form 95 (Exs.P.17 and 18).  After receipt of
\nmedical and forensic reports and examination of the witnesses, the Investigating
\nOfficer filed final report against the accused on 20\/9\/1999 for offences under
\nSections 302 and 506 (ii) r\/w. 34 IPC.\n<\/p>\n
\t4.  When questioned under Section 313 Cr.P.C., the accused denied their
\ncomplicity in the crime and pleaded innocence.  Neither oral nor documentary
\nevidence was let in by the defence.  The learned Trial Judge, on a perusal of
\nthe oral and documentary materials and after hearing both sides, convicted and
\nsentenced the appellants as aforementioned; hence the present appeal.\n<\/p>\n
\t5. The learned counsel for the appellants submits that P.W.1  is none else
\nthan the brother of the deceased and he is said to have witnessed the occurrence
\nwhile he was coming in that street in a tri-cycle; that being so, it is quite
\nstrange that he did not accompany the deceased to the hospital.  P.W.1 is a
\nchance witnesses and on a perusal of his evidence, it is seen that he gave the
\ncomplaint to the Police at 7 p.m., whereas, P.W.10 the Head Constable deposed
\nbefore Court that the complaint was given at 1 a.m., at the Hospital.  According
\nto the learned counsel, P.W.1 is an interested and chance witness and his
\nevidence being  self-contradictory,  the same cannot be acted upon and has to be
\nrejected.\n<\/p>\n
\tP.W.2 has been cited as an independent eye witness, but, he did not
\nsupport the case of the prosecution.  P.Ws.3 and 4 are admittedly Boot-leggers
\nand on a close reading of their evidence, it could be inferred that they were
\nforced by the Police to depose in favour of the prosecution.  Under such
\ncircumstances, the evidence of P.Ws.1, 3 and  4 are un-reliable and the entire
\ncase of the prosecution resting on the testimonies of these witnesses falls to
\nground. It is further submitted that non-examination of the wife of the deceased
\nby name Kasturi, who brought the deceased to the hospital, casts a doubt on the
\nprosecution case.  P.W.5 who gave admission to the deceased in the hospital on
\n26\/7\/1999 at 7.50 p.m., noted down that the deceased was assaulted by two
\npersons.  P.W.6, the auto driver, who took the deceased to the Hospital, did not
\nsupport the case of the prosecution and therefore, he was treated hostile.  The
\ncomplaint was received belatedly and further, the First Information Report
\nreached the Magistrate on the next day at 8.00 p.m;  therefore, it is apparent
\nthat the First Information Report would not have come into existence in the time
\nand manner as put forth to by the prosecution and that a false case has been
\nfalsely foisted on the accused.\n<\/p>\n
\tIn so far as the second appellant\/A.3 in the case is concerned, he did not
\noriginally accompany the other accused and the allegation against him is that
\nhe stamped the deceased when he fell down on the ground.  There is no
\ncorresponding injury on the chest.  The death of the deceased was caused only
\ndue to the alleged  assault made by the first appellant\/A.1 and the second
\naccused (since died).  Admittedly, the second appellant was not armed with any
\nweapon.  There was no animosity or nexus between the second appellant and the
\ndeceased and even so, the second appellant is in no way concerned with the
\nalleged act of the first accused.  Under such circumstances, it is submitted
\nthat the second appellant has been falsely implicated and the order of
\nconviction and sentence passed against him is liable to be set aside.
\n\tIn so far as the first accused is concerned, it is submitted that the
\ndeceased misbehaved with the sister of A.1 and abused her in filthy language and
\nwhen the second accused questioned the same, the deceased indulged in quarrel
\nwith him also.  The first accused went to the scene of occurrence only for the
\npurpose of questioning the conduct of the deceased and he did not carry any
\ndangerous weapon.  Admittedly, the weapon of offence is wooden log.   Learned
\ncounsel  submitted that it was the deceased who used filthy language against the
\nsister of the first accused and quarrelled with her and only in that background,
\nthe occurrence is said to have taken place and in such circumstances, the
\noffence under Section 302 r\/w. 34 IPC is not attracted.\n<\/p>\n
\t6.  Per contra, learned Additional Public Prosecutor  submits that the
\noccurrence took place at 5 p.m. in the presence of P.Ws.1 to 4.  The evidence of
\nP.Ws.1, 3 and 4 is consistent and convincing.  Though P.W.1 is the brother of
\nthe deceased, his evidence is quite natural and only because of the reason he is
\nan handicapped person, he could not accompany the deceased to the Hospital.
\nTherefore, with the help of P.Ws.3 and 4, the deceased was taken to the
\nHospital. P.W.10 who recorded the complaint from P.W.1, initially went to the
\nHospital and since the deceased was not in a position to speak, proceeded to the
\nresidence of P.W.1, brought him back to the Hospital and recorded Ex.P.1.  Thus,
\nthere was no delay in recording\/lodging the complaint.
\n\t Initially, the case was registered under Sections 324 and 506 (ii) IPC
\nand on receipt of intimation about the death of the deceased at 2.45 p.m.,
\nExpress report Ex.P.8 was prepared, altering the penal provision, and the
\naltered report reached the Judicial Magistrate at 8.00 p.m.  A.1 and A.2
\nrepeatedly attacked the deceased resulting in his death.   Further, the deceased
\nhimself informed P.W.1 about the sequence of events led to the attack on him by
\nthe accused.\n<\/p>\n
\tLearned Additional Public Prosecutor fairly conceded that there is no
\ndirect nexus between the second appellant (A.3) and A.1 for the motive put forth
\nby the prosecution and admittedly, the second appellant is  alleged to have
\nkicked the deceased on the chest after the deceased falling down and receiving
\nfatal blows from the other accused.  Further, there is no corresponding injury
\nfor such overt act.  According to the Additional Public Prosecutor,  the order
\nof conviction and sentence passed by the trial Court as against A.1\/first
\nappellant is based on sound reasonings.\n<\/p>\n
\t 7.  Perused the materials available on record and heard the submissions
\nmade on either side.\n<\/p>\n
\t8.  It is the case of the prosecution that there was animosity between the
\nfamily of the first accused and the deceased.  The deceased was working as an
\narrack seller with the brother of the first accused.  When the deceased was in
\ncustody, it is alleged that the brother of the first accused failed to look
\nafter the family of the deceased.  Under such circumstances, the deceased is
\nsaid to have indulged in quarrel with the brother of the first accused and
\nthere was no direct enmity between the deceased and the first accused.  It is
\nthe admitted case of the prosecution that the deceased was quarrelling with the
\nfamily members of the accused and on an earlier occasion also, he quarrelled
\nwith the sisters of the accused.  Under such circumstances, one of the sisters
\nwas abused in filthy language by the deceased just prior to the occurrence and
\nwhen the same was informed to the first accused,  he came to the scene of
\noccurrence and found the deceased quarrelling with his sister as well as A.2.
\nQuestioning the conduct of the deceased, A.1 and A.2 beat the deceased with
\nwooden logs.  Though there were earlier quarrels between the deceased and the
\nfamily of the accused, A.1 did not, on his own, proceed against the deceased.
\nAdmittedly, it was the deceased, who quarrelled with the sister of the accused,
\nand being informed of the same, A.1 went to the scene of occurrence.\n<\/p>\n
\tFrom the facts and circumstances, we could find that the deceased is an
\naggressor and the occurrence took place only on account of the deceased dashing
\nagainst the sister of A.1 and using abusive and filthy language against her.  It
\ncould also be seen that A.1 went to the scene of occurrence only for the purpose
\nof questioning the conduct of the deceased and under such circumstance, the
\noccurrence had taken place.  Though A.1 along with A.2 beat the deceased, he had
\nno intention to do away with the deceased; therefore,  we are of the considered
\nview that Section 302 r\/w. 34 IPC is not attracted.  Though there was no
\nintention or pre-meditation on the part of A.1 to kill the deceased, looking at
\nthe weapon used and the injuries inflicted on the deceased,  we hold  that the
\nfirst accused has committed the offence under Section 304 (i) IPC.  Therefore,
\nthe  conviction and sentence under Section 302 IPC are set aside, instead, the
\nfirst accused\/appellant is convicted under Section 304 (i) and sentenced to
\nundergo R.I. for five years.\n<\/p>\n
\tIn so far as the second appellant (A.3) is concerned, materials produced
\nby the prosecution are not sufficient and strong enough to convict him under
\nSection 302 r\/w. 34 IPC.  Therefore, the order of conviction and sentence passed
\nby the trial Court as against the second appellant\/third accused is set aside
\nand he is acquitted of both the charges.   Bail  bond,  if any, executed by the
\nsecond appellant shall stand cancelled.  It is reported that A.1\/first accused
\nis on bail.  Therefore, learned trial Judge is directed to take steps to secure
\nthe presence of A.1 and commit him to prison to undergo the remaining period of
\nsentence.\n<\/p>\n
\t9. Criminal Appeal is allowed in part as indicated above.\n<\/p>\n
mvs.\n<\/p>\n
To<\/p>\n
1.II Additional District and Sessions Judge, Thanjavur<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sankar vs State on 2 December, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 2\/12\/2008 CORAM THE HONOURABLE MR. JUSTICE R. REGUPATHI and THE HONOURABLE MR. JUSTICE R. SUBBIAH Criminal Appeal No.273 OF 2002 1. Sankar 2. Veeraiyan … Appellants Vs State rep. by The Inspector of Police Thanjavur (South […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-227109","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSankar vs State on 2 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sankar-vs-state-on-2-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sankar vs State on 2 December, 2008 - 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