(Judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Sessions Division, Sivagangai, made in S.C.No.157 of 2006 whereby the appellants/A-1 to A-4 stood charged under Sec.302 read with 34 of IPC, tried and found guilty as per the charge and awarded life imprisonment along with a fine of Rs.5000/- and default sentence.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the husband of the deceased Pachaiammal. P.W.2 is the son and P.W.4 is the mother of the deceased. P.W.1 purchased 4 acres and 10 cents of land out of his own income, and he was constructing a small house. After digging a well, he was carrying on the agricultural operations. The field was called Ammasi forest. A-1 to A-4 tried to cut mango and tamarind trees in the field by making a rival claim pursuant to which a civil dispute was pending before the District Munsif's Court, Thiruppathur. Apart from that, at the instance of P.W.1, a complaint was given, and a case was registered under Sec.160 of IPC for affray.
(b) On 8.2.2005 at about 16.30 hours, P.Ws.1 and 2 were actually working in the field, which was situate nearby their house. Pachaiammal was standing 10 feet away from the house, and P.W.4 was cutting haystack. At that time, A-1 to A-4 came over there, and A-1 was carrying an aruval, and at the instigation of the other accused, he cut her on the neck and other parts of the body while A-2 to A-4 caught hold of her. This was witnessed by P.Ws.1, 2 and 4. P.W.1 went near, lifted the body and found her dead. A-1 threw the weapon of crime namely aruval, in the nearby kanmoi, and all the accused left the place.
(c) P.W.1 proceeded to the respondent police station and gave Ex.P1, the report, to P.W.12, the Inspector of Police of the Circle. On the strength of Ex.P1, P.W.12 registered a case in Crime No.6/2005 under Sec.302 of IPC. The printed FIR, Ex.P16, was despatched to the Court. Then P.W.12 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P10, and also a rough sketch, Ex.P17. He conducted inquest on the dead body of Pachaiammal in the presence of witnesses and panchayatdars and prepared Ex.P18, the inquest report. He also recovered the material objects from the place of occurrence along with the weapon of crime which is marked as M.O.1, aruval, under a cover of mahazar. Thereafter, the place of occurrence along with the dead body were photographed. The photos and negatives are marked as M.O.6 and M.O.7 series respectively. Then the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(d) P.W.8, the Assistant Surgeon, attached to the Government Hospital, Valayapatty, on receipt of the requisition, has conducted autopsy on the dead body of Pachaiammal and has issued a postmortem certificate, Ex.P15, with her opinion that the deceased would appear to have died of haemorrhage and shock due to the injury to major blood vessels in the neck, and death would have occurred about 16 to 24 hours prior to postmortem.
(e) Pending the investigation, A-1, A-3 and A-4 were arrested on 21.2.2005, and they were sent for judicial remand. On completion of investigation, P.W.12, the Investigator, filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 12 witnesses and also relied on 19 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found all the accused guilty as per the charge and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants/A-1 to A-4. Pending the appeal, A-3 has died. Hence A-1, A-2 and A-4 are before this Court.
4.Advancing arguments on behalf of A-1 and A-4, the learned Counsel Mr.K.Sundaravel would submit that in the instant case, P.Ws.1, 2 and 4 were shown as eyewitnesses; that they could not have seen the occurrence at all; that the occurrence, according to the prosecution, has taken place at about 4.30 P.M. on 8.2.2005; that P.W.1 is the husband, P.W.2 is the son and P.W.4 is the mother of the deceased; that since they are all closely related, they are all interested witnesses; that the case of the prosecution is that they had got a civil dispute, and also a criminal case was registered at the instance of both the parties; that if the evidence is scrutinized, it would clearly reveal that one of the brothers of P.W.1 by name Chinnaiah was actually more responsible, and he had got motive directly; but he had not participated in the crime in question; that further, P.Ws.1, 2 and 4, though claimed as eyewitnesses, their evidence would clearly indicate that they could not have seen the occurrence at all; that even in the earliest document, Ex.P1, nowhere P.W.1 has stated that any more injuries except only one injury that was actually found on the neck of the deceased; that it would clearly be indicative of the fact that P.W.1 could not have seen the occurrence; that further at the time of evidence, P.Ws.1, 2 and 4 though claimed as eyewitnesses, could not give proper account for the injuries or describe the seat of the injuries, and hence they could not have seen the occurrence at all; that the occurrence has taken place at 4.30 P.M. and the Investigator would claim that the case was registered at about 6.30 P.M.; that according to the Investigator, immediately the original FIR was handed over to a Constable; but, it has reached the Judicial Magistrate at about 11.55 P.M., and thus there was a delay of more than 4 hours; but there was no proper explanation, and hence it would be quite clear that the case has been foisted against them; that it is specifically averred in Ex.P1 that A-1 threw the weapon of crime, aruval, in the nearby kanmoi, but strangely it was not recovered from the kanmoi, but from a bush nearby the kanmoi; that though the Investigator would claim that he actually made spot inspection at about 8.00 P.M. in that area and drew the rough sketch, neither in the observation mahazar nor in the sketch, the place where the aruval was thrown is shown; that it has actually been introduced in order to serve the purpose of the prosecution case; that under the circumstances, the prosecution has not proved its case, but the learned trial Judge has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside and A-1 and A-4 be acquitted.
5.Advancing arguments on behalf of A-2, the learned Counsel Mr.M.Subash Babu would submit that according to the prosecution, at the time of occurrence, A-2 to A-3 were catching hold of the deceased, while A-1 gave the cuts; that if to be so, such an occurrence could not have taken place at all; that according to the prosecution, A-2 was catching hold of the deceased on the backside, while A-3 and A-4 were catching hold of both the arms of the deceased; that if to be so, the injuries could not have been caused without causing injuries to A-2 to A-4 also; that under the circumstances, the prosecution case as if A-2 to A-4 caught hold of the deceased by facilitating the attacks to be made by A-1, was actually impossible, and hence, the learned trial Judge has failed to consider this aspect of the matter factually, and A-2 is entitled for acquittal in the hands of this Court.
6.This Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that one Pachaiammal the wife of P.W.1, was done to death in an incident that has taken place at about 4.30 P.M. on 8.2.2005. Following the registration of the case by P.W.12 on a complaint given by P.W.1, the place of occurrence was inspected by the Investigator. Following the preparation of the inquest report, the dead body was sent to the Government Hospital for the purpose of postmortem. P.W.8, the Doctor, who has conducted autopsy, has deposed before the Court and also gave a certificate to the effect that she died out of haemorrhage and shock due to the injury to major blood vessels in the neck. Thus it was proved to be a homicidal death. This fact was not disputed by the appellants before the trial Court or before this Court, and hence it has got to be recorded so.
8.In order to substantiate the charge levelled against the appellants/A-1 to A-4, three witnesses were examined namely P.Ws.1, 2 and 4. The prosecution came with the specific motive that there was a land dispute between P.W.1 on the one side and the accused party on the other side. This fact was not disputed before the trial Court. Apart from that, there was a case registered by the very same police station under Sec.160 of IPC in which they have also been shown as parties, and they were all preceding the occurrence. According to P.Ws.1, 2 and 4, on the date of occurrence, they were all nearby the house, and P.Ws.1 and 2 were actually doing agricultural operation in the field situate nearby the house, and Patchaiammal was standing nearby the place, and P.W.4 was also cutting haystack. At that time, A-1 armed with aruval, came over there along with the other accused and cut her on the neck and also on different parts of the body. Learned Counsel for the appellants made a comment that there was a lot of discrepancies in the evidence of P.Ws.1, 2 and 4 regarding the injuries caused, and also they could not account it properly. Now, at this juncture, this Court after perusal of the evidence, is able to see that there are certain discrepancies. But, all the three witnesses have clearly spoken to the fact that A-1 gave the first cut on the neck, and in respect of the others, there are certain discrepancies. But, at the same time, it has got to be pointed out that in a given case like this, when a close relative is being attacked by an assailant with an aruval, one cannot expect the eyewitnesses to account the injuries since they are under the grip of excitement. Under the circumstances, these minor discrepancies in the evidence cannot be given any weight at all.
9.Insofar as P.Ws.1, 2 and 4, they have clearly deposed that it was A-1 who delivered cuts on her neck and also on different parts of the body. This part of the evidence actually stood corroborated by the medical evidence projected through P.W.8, the postmortem Doctor, and also the contents of the postmortem certificate. Apart from that, an aruval has also been recovered nearby the place of occurrence under a mahazar, and a witness has also been examined to that effect. The said weapon of crime was also sent for analysis along with the other material objects and found to contain human blood.
10.Insofar as the comment made by the learned Counsel that there was inordinate delay in FIR reaching the Court, this Court is unable to countenance the same. The occurrence has taken place at about 4.30 P.M., and the case was registered at about 6.30 P.M. in the respondent police station which is situate 12 kilometres from the place of occurrence, a village. Apart from that, it has reached the Judicial Magistrate at about 11.55 P.M., and that would mean the night hours when the Judicial Magistrate was actually in his residence. Under the circumstances, the delay though caused, has taken place in the natural course of events. Hence the comment made by the learned Counsel as if there was a delay and that too, inordinate delay, has got to be rejected. As could be seen from the evidence available, it was A-1 who delivered cuts on her neck and also on different parts of the body as a result of which she died.
11.As far as the charge levelled against A-2 to A-4 was concerned, this Court is unable to agree with the case of the prosecution. According to the prosecution, A-2 was catching hold of the deceased on the backside, and A-3 and A-4 were catching hold of her both arms, and at that time, A-1 delivered the cuts. Had it been true, the injuries could not have been caused by A-1 on the neck of the deceased and also both arms without causing any injury to A-2 to A-4 who were catching hold of the deceased. Therefore, all would clearly indicate that it was A-1 who delivered cuts on the neck and also on different parts of the body of the deceased. The case of the prosecution that A-2 to A-4 caught hold of her in order to facilitate the crime cannot be accepted. That apart, in view of the medical evidence, the accusation made against A-2 to A-4 has got to be rejected. Accordingly, reasonable doubt must go to the benefit of A-2 to A- 4, and they are entitled for acquittal.
12.As far as A-1 is concerned, it was he who attacked her with the aruval and caused her death, and it was an intentional act. It would be fit and proper to find him guilty of murder as rightly done by the learned trial Judge, and also the punishment awarded to him has got to be affirmed.
13.Accordingly, the conviction and sentence imposed on A-2 to A-4 by the trial Court are set aside, and they are acquitted of the charge levelled against them. The fine amount if any paid by them shall be refunded to them. The bail bonds executed by them shall stand terminated.
14.As regards A-1, the conviction and sentence imposed by the trial Court are confirmed.
15.In the result, this criminal appeal is partly allowed. Since A-3 died, the appeal as against A-3 stands abated.
nsv To
1.The Sessions Judge Sivagangai
2.The Inspector of Police Ulagampatti Police Station Sivagangai District (Crime No.6/2005)
3.The Section Officer Criminal Section
4.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai