BALAGURU vs STATE BY

Crl.A.No.707 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.09.2026
PRONOUNCED ON : .10.2026
CORAM
THE HON'BLE MR JUSTICE M. NIRMAL KUMAR
Crl.A.No.707 of 2021
CNR: {HCMA011647082021}
Balaguru [M/43],
S/o.Panner Selvam,
No.6/8, Besanth School Road,
Triplicane,
Chennai-600 005.
..Appellant(s)
Vs
State By:
Inspector of Police,
D-3, Ice House Police Station (L & O),
Chennai-600 005.
[Crime No.188 of 2018].
..Respondent(s)
PRAYER: Criminal Appeal is filed under Section 374 of Code of Criminal
Procedure, to set aside the judgment dated 15.12.2021 in S.C.No.200 of 2019
passed by the Court of the learned XVIII Additional Sessions Judge, City Civil
Court, Chennai in so far as convicting the appellant/accused under S.304(ii) of
IPC and sentencing him to undergo 10 years Simple Imprisonment and imposed
with a fine of Rs.1,000/- in default to undergo further period of 1 month Simple
Imprisonment.
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For Appellant(s): Mr.V.Paarthiban for
Mr.Mushtaq Ahmed and Mr.M.Nallathambi,
Legal Aid Counsel
For Respondent(s): Ms.Sharada Vivek,
Additional Public Prosecutor
JUDGMENT
The appellant was convicted by judgment dated 15.12.2021 in
S.C.No.200 of 2019 by the learned XVIII Additional Sessions Judge, City Civil
Court, Chennai (trial Court), and sentenced to undergo ten years of Simple
Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo Simple
Imprisonment for one month, for the offence under Section 304(ii) IPC.
Challenging the said conviction and sentence, the appellant filed present appeal.
2.Case of the prosecution is that, on 05.07.2018, at about 5.30 p.m., near
Ram Nagar Junction, the appellant went to a tea shop along with his son. At
that time, the deceased made offensive remarks on the appellant's physical
disability. The appellant warned the deceased not to insult him in public, which
led to a verbal dual between them. Thereafter, appellant got some biscuits for
his son, left his son at home, returned to the scene of occurrence with a wooden
log (MO1), and attacked the deceased on the back of his head. The deceased
fell down, rushed to the hospital in 108 ambulance. PW2, the paternal aunt of
the deceased, a nearby food vendor present at the scene of occurrence, informed
PW3 to inform PW1, the mother of the deceased. After injured was taken in
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Crl.A.No.707 of 2021
ambulance, PW2 left the place. On receiving the information, PW1 rushed to
Kasturba Gandhi Hospital, where she was informed that her son given first aid,
and for further treatment referred to Rajiv Gandhi Government General
Hospital, Chennai. PW1 then proceeded to the Government Hospital and found
her son undergoing treatment. The respondent Police after getting information
came to the hospital, but PW1 not unwilling to lodge a complaint, for the reason
her son was responding well and was able to speak. Three days later, on
08.07.2018, at about 11.40 a.m., the deceased succumbed to injuries.
Thereafter, PW1 approached the respondent Police and lodged complaint
(Ex.P1) with PW16, the Investigating Officer.
3.On receipt of complaint (Ex.P1), PW16 registered FIR (Ex.P8) in
Crime No.188 of 2018 for offence under Section 302 IPC against the appellant.
PW16 visited the scene of occurrence, prepared Observation Mahazar (Ex.P2)
and Rough Sketch (Ex.P10) in presence of PW9 and PW10, examined PW1 to
PW7 viz., the mother/PW1 and paternal aunt/PW2 and other persons, and
recorded their statements. The statement of PW14, another eyewitness, also
recorded. Since CCTV camera available near the scene of occurrence, PW11, a
Technician, called to download CCTV footage in a pendrive. Thereafter, PW16
conducted inquest on the body of the deceased, prepared inquest report (Ex.P9)
and sent the body for postmortem through PW15, Head Constable. Meanwhile,
on receiving information about the appellant, PW16 arrested the appellant in the
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presence of PW13, recorded his confession (Ex.P6), and seized wooden log
(MO1). PW12, Postmortem Doctor conducted the postmortem and issued
Postmortem Certificate (Ex.P5). On completion of investigation, charge sheet
filed. During trial, prosecution examined PW1 to PW16, marked Exs.P1 to
P13, and produced wooden log (MO1). On the side of defence, no witnesses
examined, but one defence document (Ex.D1) marked through Investigating
Officer. On conclusion of trial, the trial Court convicted appellant as stated
above.
4.Learned counsel for the appellant submitted that in the present case, the
complaint (Ex.P1) was lodged by PW1, the mother of the deceased, three days
after the occurrence. The alleged occurrence took place on 05.07.2018 at about
5.30 p.m., whereas the complaint (Ex.P1) lodged only on 08.07.2018 at about
3.00 p.m. In this case, PW1, mother of the deceased, is not an eyewitness to the
occurrence. PW1 claimed that her sister-in-law/PW2 informed her about the
incident and at the time of the occurrence, PW1 was at Zam Bazaar. PW1
stated that the respondent Police came to the hospital and since her son was
speaking and responding well, she was not willing to lodge a complaint at that
time. It was only after his death, three days later, she lodged the complaint
(Ex.P1). The explanation given for the delay in lodging the complaint is
unbelievable. The deceased was a notorious person having cases against him
and he was also a drunkard having enemies. Since the deceased found on the
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Crl.A.No.707 of 2021
floor with injuries, the appellant hails from the same area, previously had a
fight, has been falsely implicated.
5.Learned counsel further submitted that PW8, brother of the deceased
confirmed that the deceased was a notorious person against whom several
criminal cases were pending and he had been to jail on several occasions and he
was habituated to consuming alcohol and ganja. PW8 further stated that on one
occasion, the deceased attacked the Police, resulting in registration of criminal
case against him. According to the defence, the deceased had several enemies,
and the appellant falsely implicated in the case merely because he happened to
be present at the scene of occurrence. He further submitted that the presence of
PW2, paternal aunt of the deceased, at the scene of occurrence was highly
doubtful. PW2 deposed that the deceased was having tea at the tea shop run by
PW5. But PW5’s evidence is otherwise. In the Accident Register (Ex.P11), it
is recorded that the deceased was under the influence of alcohol and found
drowsy. PW2 stated that she informed her sister-in-law/PW1 about the incident
and thereafter returned home. PW2 neither accompanied the injured to the
hospital nor visited him for two days. PW2 further stated that the respondent
police arrived at the scene of occurrence within half hour. PW3, who was
running a small tiffin centre near the scene of occurrence, deposed that she was
cutting vegetables inside her shop when she heard a noise and on coming
outside, she saw the deceased lying on the ground. PW3 called 108 ambulance
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Crl.A.No.707 of 2021
using PW2's phone and thereafter went back inside her shop. Thus, according
to the learned counsel, the presence of PW2 at the scene of occurrence was
doubtful when PW3 was admittedly not an eyewitness to the occurrence.
6.He further submitted that PW4 and PW5, a neighbour and owner of the
tea shop, projected as eyewitnesses, both not supported the prosecution case.
PW6 and PW7 were the other two witnesses projected as eyewitnesses. Though
both of them stated that they were present at the tea shop and saw the appellant
attacking the deceased with wooden log (MO1), it is strange that after the
incident both returned home without informing the police or anyone about the
occurrence. They informed the attack three days later when the respondent
police questioned them. Further, both witnesses admit that they were unsure
whether the attack directed from the front or the back of the deceased, unable to
provide any specific details about the wooden log used in the attack. PW8,
brother of the deceased, confirmed that he was informed about the incident only
on the next morning and thereafter went to the hospital to see his brother. PW9
and PW10 are witnesses to the Observation Mahazar (Ex.P2) and the Rough
Sketch (Ex.P10) and they are got-up witnesses. Though PW9 & PW10 stated
that the Police came to the scene, prepared handwritten Observation Mahazar
and Rough Sketch in their presence, and obtained their signatures, the
Observation Mahazar (Ex.P2) was a computer-typed printout. PW10 admitted
that he did not know the contents of the document and he merely signed it.
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7.Learned counsel further submitted that, according to PW11, Technician,
he went to Ram Nagar Junction on the request of Police and copied the CCTV
footage from the digital video recorder (DVR) for the period between 16.20
hours and 16.29 hours on 05.07.2018. PW11 subsequently transferred the
footage to a pen drive and handed it over to the police. It was contended that
the pen drive contained secondary evidence and there was no evidence
regarding ownership of the CCTV camera, the identity of its owner, or whether
the CCTV camera and DVR were in working condition in the normal course,
without any intervention. PW11, a complete stranger to the occurrence,
collected the footage at the instance of the Police, hence, the certificate issued
under Section 65B of Indian Evidence Act (Ex.P4) not valid. Added to it,
CCTV footage not sent to a forensic expert for examination of its contents.
PW12, Postmortem Doctor conducted autopsy and issued postmortem report
(Ex.P5), in which six injuries recorded. According to the projected
eyewitnesses, the appellant attacked the deceased only once with wooden log on
the forehead. However, apart from the injuries to the skull, injuries also noted
on the front of the left foot, front of the left knee, root of the nose, back of the
left hand, outer aspect of the left knee, and the left elbow, right parietal region
and the left posterior parietal region. In view of the above, the injuries
sustained by the deceased could not be caused by a single blow and the
evidence of projected eyewitnesses consequently unreliable. Thus, the ocular
evidence was inconsistent with the medical evidence.
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8.Learned counsel further submitted that PW13, witness to arrest and
confession (Ex.P6), admitted that the confession was handwritten, whereas the
document was, in fact, computer-typed. PW13further admitted that he did not
know contents of Ex.P6 and merely signed the document. PW13 further
confirmed that he was a relative of the deceased and spoke about the deceased's
involvement in several previous criminal cases.
9.He further submitted that PW14, another projected eyewitness to the
occurrence, stated that he went to the tea shop of PW5, where he saw the
deceased near the public toilet. The appellant arrived there with his son and had
a quarrel. Thereafter, appellant went back home and brought MO1, and
attacked the deceased. PW14 not identified the appellant in the dock. On the
contrary, throughout his testimony, PW14 referred to the person who quarrelled
and attacked the deceased as one Balamurugan. The appellant's name was
Balaguru, son of Panneerselvam and not Balamurugan. The prosecution neither
got clarified from PW14 during his examination nor produced any material to
show appellant, Balaguru, was also known and called as Balamurugan.
10.He further submitted that PW16, Investigating Officer, admitted that
he received the complaint (Ex.P1) from PW1 only on 08.07.2018 at about 11.30
a.m., visited the scene of occurrence at about 06.30 p.m. on the same day,
prepared Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P10). According
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Crl.A.No.707 of 2021
to PW16, he first conducted inquest and thereafter visited the scene of
occurrence. PW16 arrested the appellant at about 08.00 p.m. on the same day.
PW16 admitted that no complaint lodged by PW1 immediately after the attack
on 05.07.2018. In fact, PW1 confirmed that when the respondent Police visited
the hospital and sought a complaint, she refused to lodge the complaint, which
is the explanation given for the delay. PW16 also confirmed that information
had been received from the Government Hospital on 05.07.2018.
11.Learned counsel further submitted that Ex.D1, which marked through
the Investigating Officer, recorded the cause of the incident as a road traffic
accident (RTA), indicating that the deceased died as a result of a road traffic
accident. Thus, the deceased was a person with several criminal cases against
him and attacked the Police on one occasion and had several enemies.
According to the defence, the appellant made as scapegoat in the present case.
The prosecution failed to establish its case beyond all reasonable doubt. The
finding of the trial Court that the deceased picked a quarrel with the appellant
and the appellant, in a fit of rage and anger, attacked the deceased, thereby
warranting his conviction under Section 304(ii) IPC, is unsustainable. Hence,
the appellant to be acquitted and the appeal to be allowed.
12.Learned Additional Public Prosecutor strongly opposed the
contentions raised by the appellant and submitted that the appellant and the
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deceased hailed from the same locality and were known to each other. On
05.07.2018, at about 5.30 p.m., the appellant went to purchase some biscuits for
his son. At that time, the deceased, who was standing nearby, insulted and
body-shamed the appellant by making derogatory remarks about his limb. The
appellant became furious. As his son was with him, he took his son home, left
him there, and thereafter returned to the scene of occurrence with the wooden
log (MO1), questioned the deceased and attacked him with wooden log. The
attack witnessed by PW2, paternal aunt of the deceased, who came there to
purchase milk. PW3, running a tiffin centre nearby, was cutting vegetables
inside her shop when she heard the noise, came out, saw the deceased lying on
the road. PW2 gave her phone to PW3 and asked her to inform PW1, the mother
of the deceased, who was at Zam Bazaar at that time. By then, 108 ambulance
arrived to the scene and took injured to Kasturba Gandhi Hospital, where
Dr.Rajitha gave first aid and issued Accident Register (Ex.P11). Thereafter, the
injured referred to Rajiv Gandhi Government General Hospital, Chennai. On
receiving information, PW1 rushed to Kasturba Gandhi Hospital and thereafter
went to Rajiv Gandhi Government General Hospital, Chennai.
13.She further submitted that the respondent Police, on receiving
information about the incident, went to Rajiv Gandhi Government General
Hospital, Chennai and requested PW1 to lodge complaint. However, PW1
informed them that her son was speaking responding to treatment and she was
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Crl.A.No.707 of 2021
not inclined to lodge complaint at that stage. Consequently, the Police returned
without recording her complaint. Three days later, on 08.07.2018, at about
11.40 a.m., the deceased succumbed to his injuries. The death recorded in the
death report dated 08.07.2018 at 11.40 p.m. (Ex.D1). Thereafter, PW1
approached the respondent Police station and lodged complaint (Ex.P1) with
PW16, Investigating Officer. On receipt of the complaint (Ex.P1), PW16
registered FIR (Ex.P8), visited scene of occurrence, prepared Observation
Mahazar (Ex.P2), Rough Sketch (Ex.P10), conducted inquest over the body of
the deceased, prepared inquest report (Ex.P9), sent the body for post-mortem
through PW15, Head Constable, who identified the body to PW12, postmortem
doctor. PW12 conducted autopsy and issued Postmortem Report (Ex.P5),
confirming that the deceased died due to the head injuries sustained by him.
Thereafter, the appellant was arrested on the same day, and his confession
statement was recorded (Ex.P6). Pursuant to the confession, wooden log (MO1)
seized. On receipt of toxicology report (Ex.P12) and serology report (Ex.P13),
charge sheet filed before the trial Court. During trial, prosecution examined
PW1 to PW16, marked Exs.P1 to P13, and produced MO1. On the evidence
and materials on record, the trial Court finding that the deceased provoked the
appellant and picked a quarrel with him, and the appellant inflicted a single
blow on the deceased, convicted the appellant for offence under Section 304(ii)
IPC. The trial Court duly considered the evidence and materials on record and
rightly convicted the appellant. Hence, the impugned judgment of conviction
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Crl.A.No.707 of 2021
and sentence does not warrant any interference by this Court and the appeal to
be dismissed.
14.Considering the submissions and on perusal of the materials, it is seen
that the deceased had criminal antecedents. The evidence of PW8, brother of
the deceased, and other witnesses from the locality confirm the deceased was in
the habit of consuming alcohol and ganja, frequently picked quarrels with
others, and involved in disputes with the Police, resulting in his arrest and
imprisonment on earlier occasions. The criminal antecedents of the deceased,
by themselves, cannot establish the innocence of the appellant or discredit the
prosecution case. The prosecution evidence must be assessed independently to
determine whether the appellant’s guilt has been established beyond reasonable
doubt. In this background, it is to be seen that the occurrence took place on
05.07.2018 at about 5.30 p.m., when the appellant went to purchase biscuits for
his son from the tea shop. At that time, the deceased, who was standing near
the tea shop, insulted the appellant by making offensive remarks about his
physical disability. The appellant thereafter took his son back home, returned to
the scene of occurrence with a wooden log (MO1), and attacked the deceased on
his head.
15.The evidence of PW2 is that the deceased was standing with his back
when the appellant assaulted him from behind. PW3 is also projected as a
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witness to the occurrence. However, the evidence of PW3 is that PW2 shouted
somebody assaulted the deceased and she came out, saw injured on the floor
and requested PW3 to call 108 ambulance. PW3 using the mobile phone of
PW2, contacted 108 ambulance. Thus, PW3’s evidence does not establish that
she witnessed the occurrence proper. Her testimony is relevant to the events
immediately following the occurrence, but it does not independently corroborate
the identity of the assailant or the manner in which the assault was committed.
PW2 further stated that, though the deceased was her brother’s son, but PW2
not accompanied the injured to the hospital. PW2 claims she returned home and
went to the Government Hospital to enquire the injured two days later. PW2
stated that the Police arrived at the scene of occurrence within half an hour,
questioned her, and thereafter she left the place. Her evidence regarding the
weapon is contradictory to material object produced before the Court.
According to PW2, the weapon was a wooden reaper, whereas MO1 is a
wooden log. These circumstances raise doubts regarding the reliability of her
testimony. Her evidence, when considered as a whole, appears to contain
material inconsistencies and embellishments.
16.PW3’s evidence establishes that she came out of her shop after hearing
a noise and found the deceased lying on the road. She has not witnessed the
occurrence proper. PW4 and PW5, projected eyewitnesses and a local resident
and owner of tea shop, not supported the prosecution case. PW6 and PW7,
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Crl.A.No.707 of 2021
hearsay van drivers, claimed that they witnessed appellant attacking the
deceased with a wooden log, but unable to furnish material details regarding the
assault. Both witnesses admit that they not informed the Police or anyone about
the incident till the Police questioned them three days later on 08.07.2018.
Though the mere failure of a witness to report an incident immediately does not,
by itself, render the testimony unreliable, the unexplained silence of these
witnesses, when considered along with their inability to provide details of the
occurrence and the other discrepancies in the prosecution evidence, assumes
significance in assessing their credibility.
17.PW16, Investigating Officer, admitted that the statements of the
witnesses forwarded to the Court only on 29.04.2019. Thus, the statements
reached the Court after a considerable delay and not forwarded
contemporaneously during the investigation. The delay in forwarding the
statements is a circumstance that requires scrutiny, particularly in view of the
doubts raised regarding the presence and credibility of the projected
eyewitnesses. In the present case, the delay, when considered along with the
material inconsistencies in the evidence of the witnesses, gives rise to doubts
regarding the manner in which their statements recorded and the genuineness of
their claim to have witnessed the occurrence.
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18.PW14 another witness projected as eyewitness, stated that PW2 came
to the scene of occurrence and called 108 ambulance. However, his presence at
the scene is also doubtful. PW14 stated that PW2 appeared to be between 35
and 40 years of age at the time of the occurrence, whereas her age was
approximately 67 years. Further, PW14 admitted that he was unable to furnish
any details about the person whom he identified as Balamurugan and his son.
Throughout his evidence, he referred to the assailant as Balamurugan and not
Balaguru, the name of the appellant. He also failed to identify the appellant in
the dock. The prosecution neither sought any clarification from PW14
regarding the identity of the assailant nor produced any material to establish that
the appellant, Balaguru, was also known and called as Balamurugan. The
failure to establish the identity of the person referred by PW14 assumes
significance because the identification of the appellant as the assailant is a
foundational fact in the prosecution case. In the absence of reliable
identification evidence or other convincing material connecting the appellant
with the person described by PW14, his testimony cannot be relied upon to
establish the appellant’s identity as the assailant.
19.In the present case, the projected eyewitnesses stated that the appellant
attacked the deceased with wooden log (MO1) and inflicted single blow.
However, their evidence differ regarding the manner in which the assault
committed. PW2 stated that the blow inflicted from behind, whereas PW6 and
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PW7 stated that the appellant hit the deceased on the head with the wooden log
and thereafter left the scene. PW14 also stated that the deceased was assaulted
on the head. PW12, the postmortem doctor, conducted autopsy and issued Post-
mortem Certificate (Ex.P5). In Ex.P5, it is recorded that apart from the injuries
to the skull, other injuries noted on the front of the left foot, front of the left
knee, root of the nose, back of the left hand, outer aspect of the left knee, and
the left elbow, right parietal region and the left posterior parietal region. The
presence of multiple injuries in different parts of the body requires
consideration with the evidence of eyewitnesses who all categorically stated it is
a case of single blow. The medical evidence must be considered whether
corroborative with the ocular evidence. In the present case, the prosecution
evidence, as discussed above, does not satisfactorily reconcile the discrepancies
between the evidence of eyewitnesses and the injuries recorded in Ex.P5. This
circumstance further creates serious and more doubt in accepting the
prosecution version without independent and reliable corroboration.
20.In this case, the prosecution attempted to establish its case through
electronic evidence by marking the pendrive (Ex.P3) and the certificate under
Section 65-B of Indian Evidence Act (Ex.P4) through PW11. However,
questions arise regarding the manner in which the CCTV footage was obtained,
the source of the recording, and the evidentiary foundation for its admissibility.
The mere fact that the footage was copied in a pendrive does not render the
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electronic evidence inadmissible. Its admissibility and evidentiary value must
be assessed with the applicable law governing electronic records, including the
requirements relating to the certificate and the authenticity and integrity of the
recording. In the present case, the prosecution evidence does not satisfactorily
establish how the CCTV footage independently identifies the appellant as the
person who assaulted the deceased with MO1. Hence, the footage cannot be
treated as conclusive proof of the appellant’s identity or the manner of assault
without proper assessment of its contents and evidentiary foundation. The trial
Court placed considerable reliance on the evidence of PW2 and PW14 in
arriving at its conclusion regarding the occurrence. But for the reasons
discussed above, the presence and credibility of both witnesses are doubtful.
The testimony of PW3 does not establish the actual assault, PW4 and PW5 not
supported the prosecution case, and the evidence of PW6 and PW7 suffers from
material deficiencies. PW14 gives contradictory version and failed to identify
the assailant.
21.In view of the above, this Court finds that the evidence of the
projected eyewitnesses suffers from material inconsistencies and deficiencies.
The doubts regarding their presence at the scene of occurrence, the failure of
PW14 to identify the appellant, the discrepancies between the ocular and
medical evidence, and the absence of satisfactory corroboration connecting the
appellant with the assault cumulatively create reasonable doubt regarding the
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prosecution case. The prosecution failed to establish the guilt of the appellant
beyond all reasonable doubt and the appellant is entitled to the benefit of
reasonable doubt arising from the evidence on record. The cumulative effect of
the deficiencies discussed above prevents this Court from holding that the
prosecution established the appellant’s guilt beyond reasonable doubt.
22.Accordingly, this Criminal Appeal is allowed, and the impugned
judgment dated 15.12.2021 passed by the learned XVIII Additional Sessions
Judge, City Civil Court, Chennai, in S.C.No.200 of 2019, is set aside. The
appellant is acquitted of the charge under Section 304(ii) IPC. The bail bond, if
any, shall stand cancelled, and the fine amount paid, if any, shall be refunded to
the appellant.
23.This Court appreciates Mr.M.Nallathambi, Legal Aid Counsel for the
appellant for his strenuous efforts in doing research and putting forth the case of
the appellant effectively assisting Mr.V.Paarthiban for Mr.Mushtaq Ahmed,
learned counsels for the appellant. The Legal Services Authority to pay the
remuneration to the Legal Aid Counsel as per Rules.
.10.2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
vv2
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To
1.The XVIII Additional Sessions Judge,
City Civil Court,
Chennai.
2.The Inspector of Police,
D-3, Ice House Police Station (L & O),
Chennai-600 005.
3.The Legal Services Authority,
Madras High Court.
4.The Public Prosecutor,
Madras High Court.
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M.NIRMAL KUMAR, J.
vv2
Crl.A.No.707 of 2021
.10.2026
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