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2025 DIGILAW 2339 (MAD)

Arun @ Arunkumar v. State

2025-04-28

M.S.RAMESH, N.SENTHILKUMAR

body2025
JUDGMENT : N.SENTHILKUMAR, J. Challenging the conviction passed by the Learned Additional District & Sessions Court, Chengalpattu in S.C.No.148 of 2012 dated 30.08.2019, the present appeal has been filed by the appellants 1 and 2. 2. The learned Additional District & Sessions Court, Chengalpattu in S.C.No.148 of 2012, has convicted the appellants and sentenced them as follows:- Offence Sentence Section 302 IPC Imprisonment for life and a fine of Rs.5,000/-, in default to undergo 6 months rigorous imprisonment 3. The case of the prosecution is that the deceased and the accused persons had participated in a puberty function, a day prior to the date of occurrence i.e., 05.05.2011. The appellants picked up a wordy quarrel with the deceased in the function. At about 3.30AM on the next morning, the appellants and four other persons knocked the doors of the deceased, took him along with them and committed murder of the deceased. 4. Originally, a case was registered in Crime No.865 of 2011 for the offence under Section 302 IPC as against A1, A2 and others. Before the Trial Court, the prosecution had examined PW1 to PW16, marked Exs.P1 to P25 and M.O.1 to M.O.19. The Trial Court had acquitted A3 to A9 for the offence under Sections 147 and 302 IPC as the prosecution failed to prove the case against them beyond reasonable doubt. The Trial Court had acquitted A1 & A2, the appellants herein for offence under sec.147 IPC and convicted them for offence under Sec.302 IPC and sentenced to undergo life imprisonment. 5. Learned counsel appearing for the appellants disputed the presence of PW2, the wife of the deceased, PW3, the sister and PW1, the mother of the deceased in the house of the deceased. Learned counsel further submitted that PW4 and PW5 who had spoken about the motive behind the occurrence, turned hostile and therefore, motive for committing the crime was not established by the prosecution. 6. Learned counsel for the appellants contended that the contradiction in the statements of PW1 to PW3 would clearly show that PW1 and PW3 did not stay at the house of the deceased after the puberty function. The next contention of the learned counsel is that there is no clarity with regard to the identification of the body of the deceased. PW13, who stood as recovery witness had turned hostile. The next contention of the learned counsel is that there is no clarity with regard to the identification of the body of the deceased. PW13, who stood as recovery witness had turned hostile. In the absence of any recovery from the accused, the case of the prosecution is not established and the chain of events does not point out the guilt as against accused. 7. Learned counsel for the appellants submitted that the post mortem report marked as Ex.P5 would show that, there was 100ml of undigested food material in the stomach of the deceased and the time of death was 10 to 13 hours prior to the post mortem as per Ex.P5. 8. Learned counsel for the appellants relied upon the judgment in the case of Naresh Kumar vs. State of Delhi reported in 2024 SCC OnLine SC 1641. The relevant portion is extracted hereunder: “24. It is evident from the afore-extracted paragraph from the judgment of the Trial Court that the said conclusion that appellant had shared the common intention to commit murder of the deceased Arun Kumar was based only on the aforesaid two incriminating circumstances which were not put to the appellant while being questioned under Section 313, Cr. P.C. When the very charge framed against him, as referred as above, would reveal that there was no charge of commission of an offence under Section 300, IPC, punishable under Section 302, IPC, simplicitor against the appellant whereas the said charge thereunder with the aid of Section 34, IPC. In such circumstances, when the finding of common intention was based on the twin incriminating circumstances and when they were not put to the appellant while he was being questioned under Section 313, Cr.P.C., and when they ultimately culminated in his conviction under Section 302, IPC, with the aid of Section 34, IPC, and when he was awarded with the life imprisonment consequently, it can only be held that the appellant was materially prejudiced and it had resulted in blatant miscarriage of justice. The failure as above is not a curable defect and it is nothing but a patent illegality vitiating the trial qua the appellant.” The above judgment relied on by the learned counsel for the appellants is not applicable to the present case. 9. The failure as above is not a curable defect and it is nothing but a patent illegality vitiating the trial qua the appellant.” The above judgment relied on by the learned counsel for the appellants is not applicable to the present case. 9. Per contra, the learned Additional Public Prosecutor submitted that PW1, the mother of the deceased had categorically deposed that the accused persons had knocked the doors of the deceased and she opened the door. The deceased was taken by the accused and PW1 witnessed the same. Therefore, the last seen alive theory invoked by the prosecution by relying upon the evidence of PW1 cannot be disputed. 10. Heard the learned counsels on either side and perused the materials available on record. 11. Admittedly, it is a case of circumstantial evidence. PW1 to PW3 happened to be the witnesses who had last seen the deceased alive when the appellants took the deceased along with other accused persons. PW1 had set the law in motion by preferring a complaint which was marked as Ex.P1. In the said complaint, PW1 had clearly stated that the appellants herein along with three other persons knocked the doors of the deceased at about 3.30 a.m. on the date of occurrence. When PW1 opened the doors, the deceased was asked to accompany A1 and A2 along with other accused. Though PW1 tried to stop the deceased, he accompanied the accused persons. At that point of time, PW2 and PW3 were also present in the house. 12. Though minor contradictions are found in the statements of PW1 to PW3 with regard to who opened the doors, the remaining statements of PW1 which revealed that the deceased was taken by A1 and A2 along with other accused persons, one of them carried a weapon, therefore, PW1 found them suspicious and started searching the deceased along with other family members are corroborated by the evidence of PW2 and PW3. Though PW1 and PW3 were not residing with the deceased permanently, there cannot be any dispute with regard to the presence of PW1 and PW3 in the house of the deceased on the date of occurrence, as all of them had participated in the puberty function on the previous day. 13. While examining the evidence of PW1, she had clearly stated that, at the puberty function, the deceased had invited the appellants to have dinner. 13. While examining the evidence of PW1, she had clearly stated that, at the puberty function, the deceased had invited the appellants to have dinner. However, the appellants picked up a quarrel with the deceased by saying that the invitee had not invited them for dinner. 14. The accused persons, the Mahazar witnesses and the deceased were all working as painters and are residing in the same locality. Therefore, wordy quarrel between the appellants and the deceased cannot be disputed as an unbelievable theory. Even in Ex.P1 complaint, PW1 had clearly mentioned the names of A1 and A2. The case of the prosecution as projected in the complaint, marked as Ex.P1 and in the evidence of PW1 cannot be doubted for the reason that, even in the cross examination, the defence was unable to discredit the evidence of PW1. 15. While examining the contradictions in the evidence of PW2 and PW3, it is to be noted that, early morning is a time when everyone will be in deep sleep, therefore, minor discrepancies are not fatal to the case of the prosecution. When PW1 to PW3 had identified A1 and A2/ the appellants herein, their presence in the house of the deceased cannot be disputed. 16. PW13 and PW14 are the witnesses to recording of confession, seizure and recovery. As PW13 had turned hostile, it was argued that the prosecution had failed to establish the recovery of murder weapon. While examining the chief examination of PW13 and PW14, it is noted that they had categorically identified the weapon which was recovered from the accused. Therefore, it is sufficient to establish the recovery of murder weapon which was used for committing the crime and the same cannot be ignored or disbelieved. 17. The Doctor who conducted the post mortem was examined as PW9. He had categorically pointed out the external and internal injuries sustained by the deceased and stated that 100ml of undigested food material was found in the stomach. The doctor opined that, the multiple injuries sustained by the deceased, hemorrhage due to head injuries and shock caused the death of the deceased. The post mortem certificate was marked as Ex.P5. As per Ex.P5, time of death is 10 to 13 hours prior to the post mortem. 18. The doctor opined that, the multiple injuries sustained by the deceased, hemorrhage due to head injuries and shock caused the death of the deceased. The post mortem certificate was marked as Ex.P5. As per Ex.P5, time of death is 10 to 13 hours prior to the post mortem. 18. Though much emphasis was made by the learned counsel for the appellants with regard to undigested 100ml food material found in the stomach of the deceased, in the absence of any suggestion made to the Doctor during the cross examination on undigested food material, the said argument cannot be taken into consideration. That apart, the handwritten time of death was also not seriously disputed before the Trial Court. 19. Admittedly, the Doctor who conducted the post mortem is an independent person who did not support the case of the prosecution or the accused persons. The post mortem report is only a medical evidence. Unless and until the defence disputes the cause of death and the time of death which was handwritten in the report, the medical evidence cannot be discredited. 20. The medical evidence with regard to the time of death i.e., 10 to 13 hours prior to the post mortem which commenced at 4pm on the date of occurrence, cannot be disbelieved for the reason that the accused persons had taken the deceased at 3.30 a.m. as per the case of the prosecution. The proximity between the time of death and the time when the deceased was last seen alive cannot be ignored. 21. In a case of circumstantial evidence, the fundamental guiding principles such as, the last seen alive theory, recovery from the accused and other circumstances should point towards the guilt of the accused. 22. In the present case, the evidence of PW1 to PW3 cannot be thrown out or disbelieved due to certain minor discrepancies. Questions were specifically posted by the Trial Court under Section 313 Cr.P.C with regard to all the incriminating circumstances. However, there was no explanation by the accused persons with regard to the time of arrest, place of arrest, recovery, confession and nature of injuries sustained by the deceased and the evidence of PW1 to PW3. The Hon’ble Supreme Court had categorically held that questions under sec. 313 Cr.P.C. is a material portion of the judicial pronouncement as the accused directly answers the incriminating circumstances and materials put forth against him. The Hon’ble Supreme Court had categorically held that questions under sec. 313 Cr.P.C. is a material portion of the judicial pronouncement as the accused directly answers the incriminating circumstances and materials put forth against him. When such specific questions are posted to the appellants, there was no explanation given by the appellants before the Trial Court. 23. In view of the same, the prosecution had established the chain of circumstances pointing out the guilt as against the accused persons. 24. In the result, the Criminal Appeal is dismissed and the conviction passed by the learned Additional District & Sessions Court, Chengalpattu in S.C.No.148 of 2012 dated 30.08.2019 is hereby confirmed.