Crl.A(MD)No.340 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.11.2019
CORAM
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
Crl.A(MD)No.340 of 2009
Ashok Kumar @ Anthony Samy .. Appellant
Vs.
State through
The Inspector of Police,
Sivalaperi Police Station,
Tirunelveli,
Tirunelveli District.
Crime No.89/2007 .. Respondent
PRAYER: Criminal Appeal filed under Section 374 of the
Criminal Procedure Code to call for the records relating
to the judgment in Session Case No.181 of 2008, dated
26.10.2009, on the file of the learned Sessions Judge
(Mahalir Court), Tirunelveli and set aside the same.
For Appellant : Mr.T.Lajapathi Roy
For Respondent : Mr.K.K.Ramakrishnan,
Additional Public Prosecutor
*****
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JUDGMENT
This Criminal Appeal is preferred by the appellant /
sole accused as against the conviction and sentence
imposed by the learned Sessions Judge (Mahalir Court),
Tirunelveli, in S.C.No.181 of 2008, dated 26.10.2009.
2. The appellant / accused was charged for the
offence under Section 306 IPC and the trial Court, in
conclusion of the trial, found this appellant guilty for
the offence under Section 306 IPC, convicted and sentenced
him to undergo rigorous imprisonment for seven years and
to pay a fine of Rs.2500/-, i/d to undergo simple
imprisonment for three months. As against the conviction
and sentence imposed by the trial Court, the appellant has
preferred the instant appeal.
3. The facts of the case, as projected by the
prosecution, are as follows:
3.1. The victim, Tamilselvi and the appellant /
accused loved each other and by promising to marry her,
the accused had physical relationship with the victim.
But, he refused to marry her and therefore, a complaint
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was lodged by the victim girl. In that complaint, the
appellant was acquitted from the charges framed against
him. The victim girl was on distress out of the verdict of
her earlier complaint.
3.2. While so, on 05.10.2007, when the victim girl
went to the public water tap to take water, the
appellant / accused abused her that what she succeeded by
lodging the case against him and also invited her to be a
concubine to him. This was also witnessed by the Aunt
[PW3] of the victim. Frustrated over the same, the victim
girl, when she was alone, consumed poison and when she
along with her father [PW1] were on the way to the police
station, the victim girl got fainted. Immediately, she was
admitted in the Government Hospital, Palayamkottai.
3.3. Dr.Krishnamurthy [PW12], who attended the victim
girl at the Government Hospital, Palayamkottai, admitted
her in the Hospital and also gave the first aid treatment.
He also sent a medical intimation to the Sivalaperi Police
Station. The Sub-Inspector of Police [PW8], on receipt of
the medical intimation, deputed the Constable [PW9] for
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recording the statement of the victim and accordingly, PW9
went to the Government Hospital, Palayamkottai. But, in
the meantime, the deceased died in the Hospital on
07.10.2007 at about 05.25 am. Thereafter, PW9 reached the
Hospital and recorded the statement from the father of the
victim [PW1] on 07.10.2007 at about 10.00 am in Ex.P1 and
returned to the Police Station and registered the case in
Crime No.89 of 2007 under Section 174 Cr.P.C on 07.10.2007
at about 11.00 am.
3.4. The Inspector of Police [PW13], on receipt of
the intimation, went to the Hospital around 12.30 noon and
conducted inquest in the presence of the panchayatars. The
inquest report is marked as Ex.P10. Thereafter, he sent
the body of the deceased for postmortem.
3.5. Dr.Shyamsundar Singh [PW11] conducted the
postmortem on 07.10.2007 at about 02.40 pm and noted down
the presence of 100 ml brown colour fluid with pungent
odour and preserved the viscera and sent for chemical
analysis. The Inspector of Police [PW13] went to the place
of occurrence around 05.00 pm on the same day and prepared
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the observation mahazar [Ex.P2] and rough sketch [Ex.P11]
in the presence of witnesses PW4 and another. He arrested
the accused on 08.10.2007 at about 09.30 pm near
Sivalaperi to Kaliyavur Road Paper Mill and remanded him
to judicial custody. He also examined the other witnesses
and completed the investigation and filed the final report
on 01.01.2008.
3.6. During the trial, thirteen witnesses were
examined on the side of the prosecution and eleven
documents were marked.
4. The available evidence from the prosecution
witnesses is as follows:
i) PW1 is the father of the victim girl, who lodged
the complaint [Ex.P1]. He speaks about the earlier
complaint and the steps taken for filing an appeal as
against the order of acquittal passed in the earlier case.
ii) PW2 is the mother of the victim girl and she also
speaks about the earlier complaint. She is a hearsay
witness to the occurrence said to have taken place on
05.10.2007.
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iii) PW3 is the sister of PW2 and the maternal aunt
of the deceased. She has stated that on the date of
occurrence, ie., on 05.10.2007, she was also present at
the place of occurrence and in her presence, the accused
has abused the victim girl that what she achieved by
lodging the complaint against him and also invited her to
be a concubine for him.
iv) PW4 is the witness for observation mahazar and
the sketch prepared in the place of occurrence.
v) PW5 is examined as a witness to the previous
incident, but, he turned hostile.
vi) PW6 is the Doctor, who treated the deceased and
also intimated the death to the police station.
vii) PW7 is the Constable, who identified the body of
the deceased to the Doctor for postmortem.
viii) PW8 is the Sub-Inspector of Police, Paalam
Police Station, Tirunelveli City, who received the
information from the Government Hospital, Tirunelveli and
passed on the information to the Sivelaperi Police Station
on 07.10.2007 at about 10.00 am.
ix) PW9 is the Special Sub-Inspector of Police, who
registered the case in Crime No.89 of 2007.
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x) PW10 is the Scientific expert of the Forensic Lab
and according to her, she has not found any poisonous
substance or any toxins in the viscera sent for
examination.
xi) PW11 is the Doctor, who conducted the postmortem
on the body of the deceased.
xii) PW12 is the Doctor, who admitted the deceased in
the Hospital and provided the initial treatment.
xiii) PW13 is the Inspector of Police, who conducted
the investigation and filed the final report.
5. After the prosecution evidences were closed, the
incriminating materials were put to the appellant /
accused under Section 313 Cr.P.C and he denied the same.
Though the appellant / accused stated that there are
witnesses to support his case, neither a witness nor a
document was marked on the side of the defence. In
conclusion of the trial, the learned trial Judge has found
the appellant / accused guilty and has convicted him as
stated supra. As against the conviction and sentence, the
appellant / accused has preferred the instant appeal.
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6. Heard Mr.T.Lajapathi Roy, learned Counsel
appearing for the appellant / accused and
Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor
appearing for the respondent / State.
7. Mr.T.Lajapathi Roy, learned Counsel for the
appellant / accused has raised the following points for
the consideration of this Court:
7.1. In the very first document, namely, the
complaint [Ex.P1], there is no averment that any incident
was taken place as projected by the prosecution that the
victim girl was abused by the accused at the public water
tap on 05.10.2007.
7.2. Even according to the father of the victim girl
[PW1], she was on frustration out of the acquittal and on
account of the same, she committed suicide.
7.3. The prosecution has failed to prove that the
death was due to poison. The Doctor [PW11], who conducted
postmortem, has preserved the organs and sent the viscera
to the Scientific Expert [PW10]. The chemical analysis
report was also marked as Ex.P6, through PW10 and as per
the same, as well as the evidence of the scientific expert
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[PW10], on examination of the Stomach, Intestine, Liver,
Kidney and other preservatives, neither the presence of
Rodenticide nor other poisonous substance were detected.
7.4. He has also referred to the postmortem
certificate [Ex.P8], wherein, the Doctor [PW11] who
conducted postmortem has reserved his opinion as to the
cause of death pending the chemical analysis report of
viscera. Therefore, the entire case of the prosecution is
failed.
7.5. The only evidence available as against the
accused is the evidence of PW3, who is the maternal aunt
of the deceased. She is residing in a nearby village. She
is happened to be a chance witness in this case. According
to her statement, she went along with the deceased to the
water tap, where the accused met the deceased and has
abused her on 05.10.2007, on account of which, the
deceased is said to have consumed poison and died. But,
the presence of PW3 at the place of occurrence on
05.10.2007 itself is very doubtful, for the reason that
PW3 belongs to another village.
7.6. Moreover, according to the statement of PW3
before the Inspector of Police [PW13], she was standing
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near that place and at that time, the victim girl came
there for taking water and that the occurrence was taken
place. But, she has deposed in her evidence as if she also
accompanied the deceased to the water tap on the date of
occurrence. Therefore, the evidence of PW3 is not
trustworthy to believe the case of the prosecution.
7.7. Apart from the evidence of PW3, there is no
other evidence to corroborate the case of the prosecution
that there was an incident took place on 05.10.2007 and it
is not proper to convict the accused based on the
available evidence of PW3 alone.
Therefore, the learned Counsel prays for
interference.
8. Per contra, Mr.K.K.Ramakrishnan, learned
Additional Public Prosecutor would contend that though the
Doctor [PW11], who conducted postmortem, has not assigned
any reason for the cause of the death in the postmortem
certificate [Ex.P8], after the receipt of the scientific
evidence from the expert, gave the final opinion in Ex.P6
that the the deceased would appear to have died of
poisoning, as the postmortem appearances are consistent
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with that of death due to poisoning. Though the scientific
expert could not identify the nature of poison, which the
accused took, the Doctor who conducted the postmortem has
given the final opinion that it is a case of death due to
poisoning. Moreover, the evidence of PW3 is very cogent
that the accused has abused the victim girl and driven her
to commit suicide by consuming poison. Her evidence is
cogent and trustworthy and it need not be disbelieved for
the sole reason that she was residing in the neighbouring
village. Therefore, the learned Additional Public
Prosecutor prays for dismissal.
9. This Court has paid it’s anxious consideration to
the rival submissions as well as to the materials placed
on record.
10. The victim girl died in the Hospital on
07.10.2007. When she and her father [PW1] were on the way
to the police station, she got fainted and therefore, her
father took her to the Government Medical College
Hospital, Tirunelveli and admitted her on 06.10.2007 at
about 11.00 am. When she was undertaking treatment at the
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Government Medical College Hospital, Tirunelveli, she died
on 07.10.2007 at about 05.25 am and based on the medical
intimation, the respondent Police went to the Hospital and
recorded the statement of PW1 and registered the case in
Crime No.89 of 2007.
11. The Doctor [PW11], who conducted the postmortem
on 07.10.2007 at about 02.40 pm, has issued the postmortem
certificate [Ex.P8], wherein, he has not assigned any
reason for the cause of death, however, reserved the final
opinion pending the chemical analysis report. The viscera
in this case was preserved and sent for chemical analysis.
The Scientific Expert [PW10], Forensic Lab, on her
analysis of the Stomach, Intestine, Liver, Kidney and
other preservatives, has given a opinion [Ex.P6] that they
have not detected any Rodenticide or any other poisonous
substance on the organs which were forwarded for chemical
analysis. Based on the report of the Scientific Expert,
the Doctor [PW11] gave his final opinion in Ex.P6 that the
deceased appears to have died of poison, however, the
nature of poison could not be identified in the chemical
analysis.
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12. When the Doctor’s [PW11] evidence is very much
available that the deceased died due to poison and that
the nature of poison could not be deducted in the chemical
analysis, it cannot be construed that the deceased died on
account of some other materials. Even at the time of
admitting the deceased in the Hospital, it was treated as
a case of poisoning and for that, initial treatment was
given. Therefore, the prosecution has proved that the
deceased died due to poisoning.
13. The relevant facts to be considered in this case
is the date of acquittal on the earlier complaint
instituted by the victim girl. The victim girl, according
to the prosecution, was 19 years old at the time of
incident. She prosecuted the accused for the offence under
Section 376 IPC that the accused, by promising her to
marry, had physical relationship with her. The prosecution
instituted by the deceased ended in acquittal on
29.08.2007.
14. According to the prosecution, the victim girl was
challenged by the accused on 05.10.2007 that what she
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achieved by lodging the complaint against him and the
accused has also went to the extent of abusing her by
inviting her to be a concubine and has also asked her to
go and die. On frustration, the victim girl has consumed
poison. This incident took place on 05.10.2007 is
supported by the evidence of PW3. But, it is the
contention of the learned Counsel for the appellant that
PW3 could not be a natural witness, as she is living in a
nearby village and her presence in the place of occurrence
at the relevant point of time could not be believed, as
there are certain contradictions in her statement and her
evidence is an exaggerated one.
15. No doubt, PW3 is a close relative of the victim
girl. She is the sister of the victim girl’s mother [PW2].
She is also a resident of an adjacent village. According
to her evidence, since the victim girl was on frustration,
she also accompanied her on the date of occurrence and in
her presence, the accused abused the victim.
16. In short, it is the contention of the defense
that PW3 is a cooked up witness to create a story by the
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prosecution. According to both the parties, due to the
order of acquittal in the earlier complaint, the victim
girl was in distress. The order of acquittal was on
29.08.2007 and the alleged occurrence took place on
05.10.2007. If really the victim was affected only because
of the verdict of acquittal, she would have committed
suicide soon thereafter. But, between 29.08.2007 and
05.10.2007, there was no issue. According to the
prosecution, there was an incident on 05.10.2007 near the
public water tap and only thereafter, the victim has taken
the extreme step. It is also represented that the
prosecution is taking steps to prefer an appeal as against
the order of acquittal in the earlier complaint. Moreover,
the statement of PW3 was also recorded by the Inspector of
Police on 08.10.2007, ie., immediately after the
complaint. In the given circumstances of the case, the
theory of the defense that PW3 is a cooked up witness to
suit the prosecution is not acceptable.
17. The learned Counsel for the appellant has also
contended that if really an incident took place on
05.10.2007 as alleged by the prosecution, then the same
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would have been reflected in the complaint [Ex.P1]. But,
it is a settled position of law that a complaint is not an
encyclopedia, where each and every minute details have to
be stated. The version of prosecution that the deceased
consumed poison due to the incident took place on
05.10.2007 is supported by the evidence of PWs 1 to 3 as
well as the inquest report [Ex.P10].
18. The learned Counsel for the appellant further
contended that the deceased lost the earlier case and on
frustration, committed suicide and when she has committed
suicide out of frustration, it cannot be termed that the
accused attributed the commission of offence to attract
the offence under Section 306 IPC. To attract the offence
under Section 306 IPC, the intention of the accused to aid
or instigate or abet the deceased to commit suicide is
necessary and in this case, there is no evidence that the
accused has abetted the deceased to commit suicide.
19. The accused was convicted for the offence under
Section 306 IPC. For better appreciation, Section 306 IPC
is extracted thus:
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“306 – If any person commits suicide, whoever
abets the commission of such suicide, shall be
punished with imprisonment of either description
for a term which may extend to ten years, and
shall also be liable to fine.”
20. As per the above, whoever abets a person to
commit suicide is liable to be prosecuted. The word
‘abetment’ is defined under Section 107 IPC and for better
understanding, the same is extracted thus:
“107 – Abetment of a thing:- A person abets
the doing of a thing, who-
First:- Instigates any person to do that
thing; or
Secondly:- Engages with one or more other
person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly:- Intentionally aids, by any act or
illegal omission, the doing of that thing.
Explanation 1:- A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to
instigate the doing of that thing.”
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21. Mere uttering of words ‘go and die’ itself will
not constitute such abetment. The prosecution has to prove
beyond reasonable doubt that the accused has instigated
the deceased to commit suicide. In similar circumstances,
the Hon’ble Supreme Court in Sontui Rama Krishna v. Sonti
Shanti Sree another, reported in AIR 2009 SC 923, has
held that to constitute the abatement, it should be
established by means of acceptable evidence by the
prosecution that the accused had the animus to drive the
woman to commit suicide.
22. The Hon’ble Supreme Court, in its latest
decision, in Rajesh v. State of Haryana, reported in 2019
SCC OnLine SC 44 has held as follows:
“9. Conviction under Section 306 IPC is not
sustainable on the allegation of harassment
without there being any positive action proximate
to the time of occurrence on the part of the
accused, which led or compelled the person to
commit suicide. In order to bring a case within
the purview of Section 306 IPC, there must be a
case of suicide and in the commission of the said
offence, the person who is said to have abetted
the commission of suicide must have played an18/26
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Crl.A(MD)No.340 of 2009active role by an act of instigation or by doing
certain act to facilitate the commission of
suicide. Therefore, the act of abetment by the
person charged with the said offence must be
proved and established by the prosecution before
he could be convicted under Section 306 IPC. (See
Amalendu Pal alias Jhantu v. State of West Bengal,
reported in (2010) 1 SCCC 707).
10. The term instigation under Section 107 IPC
has been explained in Chitresh Kumar Chopra v.
State (Govt. of NCT of Delhi), reported in (2009)
16 SCC 605 : (2010) 3 SCC (Cri) 367, as follows:
“16. Speaking for the three-Judge Bench in
Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC
(Cri) 1088], R.C.Lahoti, J. (as His Lordship
then was) said that instigation is to goad,
urge forward, provoke, incite or encourage to
do “an act”. To satisfy the requirement of
“instigation”, though it is not necessary that
actual words must be used to that effect or
what constitutes “instigation” must necessarily
and specifically be suggestive of the
consequence. Yet a reasonable certainty to
incite the consequence must be capable of being
spelt out. Where the accused had, by his acts
or omission or by a continued course of
conduct, created such circumstances that the
deceased was left with no other option except
to commit suicide, in which case, an19/26
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Crl.A(MD)No.340 of 2009“instigation” may have to be inferred. A word
uttered in a fit of anger or emotion without
intending the consequences to actually follow,
cannot be said to be instigation.
17. Thus, to constitute “instigation”, a
person who instigates another has to provoke,
incite, urge or encourage the doing of an act
by the other by “goading” or “urging forward”.
The dictionary meaning of the word “goad” is “a
thing that stimulates someone into action;
provoke to action or reaction” (see Concise
Oxford English Dictionary); “to keep irritating
or annoying somebody until he reacts” (See
Oxford Advanced Learner’s Dictionary, 7th
Edn.).”
11. Words uttered in a fit of anger or
omission without any intention cannot be termed as
instigation. [See Praveen Pradhan v. State of
Uttaranchal, reported in (2012) 9 SCC 734]”
23. In the case on hand, the prosecution has proved
that there was an incident took place on 05.10.2007 and
the accused has challenged the deceased what she achieved
by lodging the complaint against him and has also went to
the extent of abusing her by inviting her to be a
concubine and asked her to go and die. As discussed supra,
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the victim has not taken any extreme step immediately
after the pronouncement of the verdict of acquittal in her
earlier complaint, but, only after the alleged incident
took place on 05.10.2007. Therefore, this Court is of the
view that the prosecution has established its case that
the accused has instigated the victim to commit suicide.
24. At this juncture, the learned Counsel for the
appellant contended that the appellant has already
undergone more than 100 days in prison during the trial as
well as appeal. Therefore, as an alternate remedy, prays
for modification of sentence. He also referred to the
judgment of the Hon’ble Supreme Court reported in AIR 2002
SC 3270, in Mohd. Hoshan and another vs. State of A.P.,
wherein, the punishment for the offence under Sections 306
498A IPC was converted to the period of two months
imprisonment already undergone. The relevant portion in
the said decision is extracted as under:
“8. Having regard to the evidence brought on
record and looking to the reasons recorded by the
High Court as indicated in the foregoing
paragraphs, we are of the view that the trial
court committed manifest error in disbelieving the21/26
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Crl.A(MD)No.340 of 2009dying declaration (Exbt P/2) and the evidence of
PWs 3 to 7. We have no hesitation in holding that
the view taken by the trial court in acquitting
the appellants was not a reasonable and
justifiable view which could have been taken
looking to the evidence keeping in view the well-
settled principles. The High Court, in our
opinion, was right and justified in reversing the
order of acquittal and convicting and sentencing
the appellants for the offences under Section 306
and 498-A IPC. We find no good reason to interfere
with the same. However, we think it just and
appropriate to modify the sentence of imprisonment
for the period already undergone and order
accordingly having regard to the fact that both
the appellants were in imprisonment for about two
months; the incident took place on 09.03.1988; the
appellant No. 2 is the mother of the appellant No.
1 and she is aged 60 years; both the appellants
are on bail and it may not be appropriate to send
them to jail again. The appeal stands disposed of
in the above terms. The bail bonds stand
cancelled.”
25. He has also relied upon the judgment of the
Hon’ble Supreme Court reported in 2012 (3) SCC 221, in the
case of Roy Fernandes vs. State of Goa and others,
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wherein, the sentence of imprisonment was modified with a
compensation of Rs.3,00,000/- for the offence under
Sections 323 325 IPC. The relevant portion is extracted
thus:
“46. In the result, we allow this appeal in
part, set aside the conviction and sentence
awarded to the appellant under Section 302 read
with Section 149 IPC and acquit the appellant of
that charge. The conviction of the appellant for
the offences punishable under Section 323 and 325
IPC is affirmed and the appellant is sentenced to
the period of imprisonment already undergone by
him. We further direct that the appellant shall
deposit a sum of Rs.3,00,000/- towards
compensation to be paid to the widow of the
deceased Shri Felix Felicio Monteiro, failing her
to his surviving legal heirs. A sum of
Rs.1,00,000/- shall be similarly deposited towards
compensation payable to Monteiro failing to their
legal representatives. The deposit shall be made
within two months from today failing which the
sentence of one year awarded to the appellant
shall stand revived and the appellant taken in
custody to serve the remainder of the period. The
appeal is disposed of with the above modification
and directions.”23/26
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26. Considering the nature of offence, the available
evidence and the overall circumstances, this Court is
inclined to interfere with the quantum of sentence.
Accordingly, the sentence of imprisonment alone is
modified as that of the period of imprisonment already
undergone and to pay a compensation of Rs.2,00,000/-
[Rupees Two Lakh only], which shall be deposited to the
credit of S.C.No.181 of 2008, on the file of the learned
Sessions Judge (Mahalir Court), Tirunelveli, within a
period of three months, failing which, the sentence of
imprisonment imposed by the trial Court shall be revived
and the appellant shall be taken in custody to serve the
remaining period of imprisonment. The trial Court shall
take necessary steps to communicate this judgment to the
family of the victim and to hand over the compensation
amount to them.
27. In fine,
– This Criminal Appeal is partly allowed.
– The order of conviction passed by the learned
Sessions Judge (Mahalir Court), Tirunelveli in Session
Case No.181 of 2008, dated 26.10.2009, stands confirmed,
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however, the sentence of imprisonment is modified to the
extent indicated supra.
– Bail bonds, if any executed, shall stand
terminated.
Index :Yes/No 19.11.2019
Internet :Yes/No
gk
To
1.The Sessions Judge,
Mahalir Court,
Tirunelveli.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
3.The Section Officer, Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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B.PUGALENDHI, J.
gk
Crl.A(MD)No.340 of 2009
19.11.2019
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