Rajendran v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Third day of September Two Thousand Twenty PRESENT The Hon`ble Mr.Justice K.KALYANASUNDARAM and The Hon`ble Mrs.Justice T.KRISHNAVALLI IN CRL A(MD) No.480 of 2018 RAJENDRAN ... PETITIONER/1st APPELLANT Vs STATE REPRESENTED BY:

THE INSPECTOR OF POLICE SIPCOT POLICE STATION, THOOTHUKUDI, THOOTHUKUDI DISTRICT, (CRIME NO.349/2015) ... RESPONDENT/RESPONDENT Petition praying that in the circumstances stated therein and in the petition filed therewith the High Court will be pleased to enlarge the petitioner on bail by suspending the sentence imposed upon him in SC. No.117/2017 on the file of the Learned II Additional District and Sessiions Judge, Thoothukudi, Thoothukudi District, by Judgment dated 13.08.2018 pending disposal of the main Criminal Appeal.

Order : This petition coming on for orders upon perusing the petition filed in support thereof and upon hearing the arguments of M/S.A.THIRUVADI KUMAR, Advocate for the petitioner and of Mr.R.ANANDHARAJ, Additional Public Prosecutor on behalf of the Respondent, the court made the following order:- [Order of the Court was made by K.KALYANASUNDARAM, J.] The petitioner along with one Selvaraj and Nimal @ Kakkaiyan were tried before the learned II Additional District and Sessions Court, Thoothukudi, in S.C.No.117 of 2017, for the offence under Sections 302 and 341 I.P.C. The Trial Court, by Judgment dated 13.08.2018, found them guilty for the said offence. The conviction and sentence imposed on the petitioner herein (A1) is as follows: 1/5

Section of Law Sentence of imprisonment 302 I.P.C.

To undergo life imprisonment and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three (3) months.

341 I.P.C.

To undergo one (1) month simple imprisonment.

2. Aggrieved over the conviction and sentence, A1 (petitioner herein) A2 and A3 have preferred the present criminal appeal. Pending appeal, the petitioner (A1) has filed this criminal miscellaneous petition seeking to suspend substantive sentence of imprisonment imposed on him by the Trial Court in the above sessions case.

3. The case of the prosecution is that the deceased Arumugam and the petitioner (A1) had been engaged in real estate business and they purchased 22 1⁄2 Acres of land in Pudukkottai - Sirupadu Road in the name of Seethalakshmi, wife of the deceased. Since dispute arose between them, a suit in O.S.No.30 of 2011 was instituted by the petitioner (A1), before the I Additional District Judge, Thoothukudi and the suit was decreed in his favour. Aggrieved over the Judgment and Decree, the deceased Arumugam is said to have preferred an appeal. Since the deceased was not coming for compromise, it is the case of the prosecution that on 27.09.2015, at 07.00 a.m., while the deceased was going for his morning walk along with his son Vignesh (P.W.1), all the accused waylaid them and attacked the deceased Arumugam with weapons and he succumbed to the injuries on 29.09.2015.

4. Mr.A.Thiruvadikumar, learned counsel for the petitioner, would submit that the earlier two applications filed by the petitioner were not considered on merits and the first application was dismissed on the ground that it was too early and when the second application was taken up for hearing, this Court felt that the main appeal itself can be taken up for hearing and hence, the second application was dismissed as withdrawn. The learned counsel further contended that even though P.Ws.1 to 3 have been cited as eye-witnesses to the occurrence, but, admittedly, P.Ws.2 and 3 have turned hostile and hence, the entire prosecution case hinges on the evidence of P.W.1.

5. The learned counsel for the petitioner further contended that the evidence of P.W.4 and the evidence of the Investigating Officer (P.W.17) would reveal that P.W.1 would not have been present in the scene of occurrence and he was planted by the prosecution deliberately to lodge a false case against the accused. In support of the said contention, the learned counsel drew the attention of this Court to the Accident Register (Ex.P22), wherein it is stated that the deceased was attacked by an unknown person. It is also 2/5

contended that as per the Accident Register (Ex.P22), the occurrence had taken place at Palpandi Nagar, but, as per the prosecution case, the place of occurrence is Millarpuram. It is further submitted that the petitioner (A1) is suffering from heart ailment and he has to undergo bypass surgery and hence, prays for suspension of sentence imposed on the petitioner (A1).

6. Per contra, Mr.R.Anandharaj, learned Additional Public Prosecutor, would oppose the petition contending that the motive for the occurrence is the land dispute and the same was proved through the evidence of P.W.1. It is further argued that P.W.1 first informed the injuries sustained by his father to P.Ws.4 and 5 and thereafter, he had gone to his house to inform his mother. So, the deceased was taken to the Hospital by P.W.4, who has stated that the deceased was attacked by an unknown person. According to the learned Additional Public Prosecutor, there is no discrepancy in the evidence of the prosecution witnesses with regard to the place of occurrence and hence, prayed for dismissal of the application.

7. Heard the learned counsel on either side and perused the materials available on record.

8. In the matter on hand, it is not disputed that the prosecution projected P.Ws.1 to 3 as eye-witnesses to the occurrence, however, P.W.2 and P.W.3 turned hostile and they did not support the case of the prosecution. It is to be noted that the Investigating Officer (P.W.17) has admitted in his cross-examination that during the course of investigation, P.W.1 implicated one Parisuthakumar, but, no charge sheet was filed against him. In the chief-examination, P.W.1 has deposed that when he and his father were going for morning walk, the accused attacked his father. But, in the cross-examination, he deposed that when he was alighting from the bike, the occurrence had taken place. P.W.4, in his crossexamination, has deposed that he and P.W.1 had gone together to the Hospital.

9. We have called for a report to ascertain the health condition of the petitioner during the earlier hearing. In response, the Medical Officer, Central Prison, Palayamkottai, sent a report dated 03.08.2020 stating that at present his health condition is stable. The medical reports furnished by the petitioner would indicate that periodically, he is taking treatment for his cordial problem.

10. Considering the above facts and circumstances of the case, we are inclined to suspend the substantive sentence of imprisonment imposed on the petitioner (A1). Accordingly, the criminal miscellaneous petition is allowed and the substantive sentence of imprisonment imposed on the petitioner (A1) alone is suspended, subject to the following conditions:

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i.

The petitioner (A1) is directed to be enlarged on bail on executing a bond for Rs.10,000/- (Rupees ten thousand only) with two sureties, of whom, one should be a blood related surety, each for a like sum to the satisfaction of the learned Judicial Magistrate No.I, Thoothukudi.

ii.

The sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Committal Court may obtain a copy of their Aadhar card or Bank passbook to ensure their identity. iii. The petitioner shall appear before the learned Judicial Magistrate No.I, Thoothukudi, at 10.30 a.m. on the first working day of every English Calendar month until further orders. iv. On any particular date, if the petitioner is not able to appear, leave is granted to the petitioner to file an application under Section 317 Cr.P.C. and appear before the Committal Court on any other day, as determined by the Committal Court, in lieu of the day on which they would absent.

sd/- 03/09/2020 / TRUE COPY / / /2020 Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.

Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned TO 1.THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, THOOTHUKUDI, THOOTHUKUDI DISTRICT.

2.DO THROUGH THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TOOTHUKUDI.

3.THE JUDICIAL MAGISTRATE NO.I, THOOTHUKUDI.

4.DO THROUGH THE CHIEF JUDICIAL MAGISTRATE, THOOTHUKUDI.

5.THE SUPERINTENDENT, CENTRAL PRISON, PALAYAMKOTTAI, TIRUNELVELI DISTRICT.

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6.THE INSPECTOR OF POLICE SIPCOT POLICE STATION,THOOTHUKUDI, THOOTHUKUDI DISTRICT 7.THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.

+1. C.C. to M/S. A. THIRUVADI KUMAR Advocate SR.No.6232

ORDER

IN IN CRL A(MD) No.480 of 2018 Date :03/09/2020 KRK PK/AKM/SAR-1/07.09.2020 : 5P/9C 5/5