(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the I Additional Sessions Division, Salem made in S.C.No.408 of 2006 whereby, the appellants, eight in number, stood charged, tried and found guilty and awarded the punishments as follows:
Sl.No Accused Guilty Award 1 A1 148 IPC 302 IPC 302 IPC r/w 149 IPC 1 year RI Life imprisonment along with fine of Rs.25,000/- i/d. 1 year RI Life imprisonment along with fine of Rs.15,000/- i/d. 1 year RI 2 A2 147 IPC 302 r/w 149 IPC 1 year RI Life imprisonment along with fine of Rs.15,000/- i/d. 6 months RI 3 A3 148 IPC 302 IPC 302 IPC r/w 149 IPC 1 year RI Life imprisonment along with fine of Rs.25,000/- i/d. 1 year RI Life imprisonment along with fine of Rs.15,000/- i/d. 1 year RI 4 A4 to A8 148 IPC 302 r/w 149 IPC 1 year RI Life imprisonment along with fine of Rs.15,000/- i/d. 1 year RI
2. The short facts necessary for the disposal of this appeal can be stated thus:
(a) P.W.1 is the son and P.W.2 is the wife of the first deceased Periyasamy. The second deceased is the another son of P.W.2 and the first deceased. They were all living in a joint family. P.W.3 is the wife of the second deceased. The accused person were their agnates. A1 and A2 are the husband and wife and the parents of A3. A4 was the son-in-law of A1 and A2. A5 is the grandson of A1 and A2. A6 and A7 are the sons of A8. The accused persons and the prosecution witnesses were all in warpath for a long time regarding division of the property. The family of the deceased were demanding for partition. When they approached the accused persons, they were not amenable for the division. However, all of them executed a Mutchalika. P.W.18 has given evidence to that effect. But no partition was actually effected.
(b) On 9.3.2006 at about 8.00 p.m., when the first deceased accompanied by the second deceased and witnesses P.Ws. 1 to 6 were returning from the field and just crossing the house of the accused, all the accused who were found in unlawful assembly, way laid them. At that time, except A2 who was having a stone in her hand, all the other accused were armed with wooden logs. A1 uttered the words, "You wanted to have a panchayat. So long as you are alive, you will be demanding the same. You should be finished off." So saying, A1 attacked him with wood log on the chest. A3 attacked him on the head. While A2 hit him with a stone and all the other accused attacked him with wooden logs. On seeing this, the second deceased and P.W.1 intervened. The second deceased was surrounded by all the accused and was attacked indiscriminately with the wooden logs. P.W.1 was also attacked by them with wood logs. All of them sustained severe injuries.
(c) The first deceased met his fate at the spot. The second deceased Ramalingam, was taken to Attur Government Hospital where P.W.10, doctor who was on duty medically examined him and recorded the statement given by P.W.3 wife of the second deceased in Ex.P11, copy of accident register. P.W.1 was also examined by the same doctor, P.W.10 and the accident register copy is Ex.P.12. Since the second deceased was found in a serious condition, he was taken to the Government Hospital, Salem, where he was given treatment by P.W.12, doctor who issued Ex.P16 accident register copy. Despite treatment, the second deceased died.
(d) P.W.10, doctor gave treatment to A1 also at the time when he gave treatment to the second deceased. The wound certificate was marked as Ex.P13. Thereafter, A1 was taken to the Government Hospital, Salem. Two X-rays and a scan were taken which were marked as Ex.P38, Ex.P39, and Ex.P.40 respectively. He was given treatment by P.W.20 and P.W.21, doctors.
(e) On receipt of intimation, P.W.23, Sub Inspector of Police, Gangavalli proceeded to the Government Hospital Attur where he recorded the statement of A1 which was marked as Ex.P43. He also went to the Mohan Kumaramangalam Medical College Hospital and recorded the statement of P.W.1 marked as Ex.P1. He returned to the Station and on the strength of those statements, he registered two cases, one in Crime No.76/22006 under
section 147,148, 324,
302 IPC on the strength of Ex.P1 and another case in Crime No.77/2006 under
section 324 IPC on the strength of Ex.P43. The copy of the F.I.R. in both the cases were despatched to Court.
(f) P.W.24 Inspector of Police, took up investigation, proceeded to the spot, made an inspection, prepared an Observation Mahazar Ex.P2 and also drew a sketch Ex.P46 and thereafter, he conducted inquest on the dead body of the first deceased in the presence of witnesses and panchayatdars and prepared the inquest report Ex.P.47. Thereafter, he proceeded to the Government Hospital where he conducted inquest on the dead body of the second deceased and the inquest report was marked as Ex.P.48 and both the dead bodies were subjected to autopsy.
(g) P.W.11 doctor conducted autopsy on the dead body of the first deceased Periyasamy and gave his opinion in Ex.P.15 post mortem certificate that the deceased died out of shock and haemorrhage due to the injuries sustained by him. Equally, P.W.13 conducted autopsy on the dead body of the second deceased Ramalingam and gave his opinion in Ex.P.19 post mortem certificate that the deceased died out of shock and haemorrhage due to the injuries sustained by him.
(h) Pending investigation, A3, A5, A6 and A7 surrendered before the Court and police custody was ordered on 17.3.2006. They were taken to police custody. The accused came forward to give confessional statement, pursuant to which the wooden logs and motor cycle etc. were recovered from them under a cover of mahazar. Equally, the confessional statement of A2 and A4 was also recorded after their arrest. The same was recorded in the presence of witnesses. The materials objects were also recovered from them. Thereafter, the accused were sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Science Department on the requisition made by the investigating officer through the concerned court. The chemical and serology reports were received and produced before the Court. On completion of the investigation, the investigating officer filed a final report.
(i) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 24 witnesses and relied on 54 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under
section 313 Cr.P.C as to the incriminating circumstances found in the prosecution witnesses and they flatly denied them as false. Three witnesses were examined on the side of the defence. On hearing the arguments advanced on both sides, the trial Court found the accused/appellants guilty of the charges and awarded the punishments as referred to above. Hence, this appeal at the instance of the appellants.
3. Advancing the arguments on behalf of the appellants, the learned Senior counsel Mr.V.Gopinath would submit, in the instant case, the prosecution has miserably failed to prove its case. Despite the same, the trial Judge has recorded the judgment of conviction erroneously. In the instant case, admittedly, at the time of occurrence, A1 was severely injured and he was taken to the hospital immediately. P.W.10, doctor who examined the first deceased and P.W.1, has examined A1 also. Thereafter, A1 was taken to the Government Hospital, Salem where he was given treatment by P.W.20 and P.W.21 doctors and X-rays and scan were taken and were marked as Exs.P.38, P.39 & P40 respectively which would clearly indicate that he sustained severe injury and brain was also affected.
4. It is pertinent to point out that insofar as P.W.23, Sub Inspector of Police is concerned, he proceeded to Attur Government Hospital and recorded the statement of P.W.1 which was marked as Ex.P.1. At the same time, he also recorded the statement of A1, on the strength of which, a case came to be registered in Crime No.77 of 2006 under
section 324 I.P.C. It is true that the prosecution placed materials in Crime No.77 of 2006 but the prosecution has miserably failed to explain the grievous injuries sustained by A1 which has admittedly taken place in the course of the same transaction. So far as the witnesses examined by the prosecution, viz., P.Ws. 2 and 5, even at the time of examination in Court, they have not spoken anything about the injuries sustained by A1. P.Ws.1, 3 and 4 have spoken about the injuries sustained by A1 but they have come forward with a false explanation that in the course of the same transaction while the accused were attacking the prosecution witnesses and the deceased, A1 sustained injuries and it was caused by some other accused and not by the prosecution witnesses. The learned counsel would further add, this explanation was an afterthought and also subsequent introduction made by the prosecution side since no one of those witnesses have spoken about this fact before the investigating officer. The investigating officer has categorically admitted the said fact. Under such circumstances, the explanation given by the P.Ws. 1, 3 and 4 should not be accepted.
5. The case of the prosecution insofar as the overt act attributed on the first deceased was concerned, A1 attacked the first deceased on the chest, A3 attacked him on the head and A2 with stone, but in the post mortem certificate there were only two injuries found as regard the first deceased is concerned. Therefore, the case of the prosecution that A2 hit with stone and the other accused surrounded and attacked him with wooden logs cannot but be false. The prosecution has no explanation to offer in that regard. This would be indicative of the fact that a false acquisition was made as against the other accused.
6. So far as the second deceased is concerned, the specific case of the prosecution is that all the accused surrounded him and caused injuries and six injuries were noticed, out of those injuries, two injuries are found to be suture injuries and three injuries are internal injuries. Thus, there was only one external injury. Therefore, in that part also, the evidence adduced through the prosecution was false. Added further learned counsel, the material objects viz., weapons of crime which were recovered are nothing but false because there was no corroborative piece of evidence to prove the same and there was also lot of discrepancies in the evidence adduced through the prosecution witnesses.
7. Added further learned counsel, the prosecution was unable to explain the injuries sustained by A1 which was serious in nature and the overt act attributed by all the accused was not at all spoken to by the witnesses or found in the medical evidence which would go to the root of the matter. The trial Judge has taken an erroneous view and has rendered the judgment of conviction. Hence, the accused/appellants are entitled for acquittal in the hands of this Court.
8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
9. It is not in controversy that in the occurrence that had taken place at 8.00 p.m. on 9.3.2006 and both the first and the second deceased were attacked. The first deceased died on the spot and the second deceased Ramalingam was taken to the Government Hospital, Attur. P.W.10, doctor gave initial treatment and the accident register copy was marked as Ex.P.16. Thereafter, the second deceased was taken to the Government Hospital, Salem where he was given treatment and despite treatment, he died. Following the inquest made by the investigating officer on both the deceased, the dead bodies were subjected to autopsy. P.Ws.11 and 14, doctors conducted autopsy on D1 and D2 respectively and gave opinion through the contents of the post mortem certificates Exs.P15 & P19 and also as witnesses before the Court that the deceased died out of shock and haemorrhage due to the injuries sustained. The cause of death as putforth by the prosecution was never disputed by the appellants/accused before the trial Court or before this Court. Hence, it could be safely recorded that both the deceased died out of homicidal violence.
10. In order to substantiate that the charges levelled against the accused/appellants, the prosecution marched 6 witnesses as eye witnesses. Out of these eye-witnesses P.W.1 was the only injured witness. It is true, all the other witnesses were closely related to each other. It is settled principles of law that merely because of the relationship of the witnesses, their evidence cannot be discarded but before accepting their evidence, it should be subjected to careful scrutiny test. So far as P.W.1 is concerned, he was not only an eye witness but also an injured witness. He was immediately taken to the Hospital at Attur. P.W.10, doctor examined him and issued Ex.P12 accident register copy wherein the place and time of occurrence were clearly mentioned. It is true, there is no corroborative evidence for the injuries sustained by P.W.1. Hence,the trial Court has acquitted the accused/appellants insofar as the injuries sustained by P.W.1 is concerned but that would not mean that P.W.1 was not an eye witness to the occurrence. P.Ws. l to 6 have spoken about the occurrence.
11. In the instant case, it is true that the occurrence had taken place in the house of the accused. Both the families were in warpath for long time in respect of the division of properties. According to P.W.18, a panchayat was convened and Mutchalika was executed. But the accused persons were not amenable for partition by way of panchayat and they opposed for the same. On the date of occurrence, when the prosecution witnesses were just crossing the house of the accused, they were attacked by the accused. P.W.1 has given a complaint under Ex.P1, on the strength of which, a case in Crime No.76/2006 was registered. It is also admitted by the prosecution through the evidence of P.W.23, Sub Inspector of Police that when he went to Attur Government Hospital, he found not only P.W.1, from whom Ex.P1 statement was recorded, he also met A1, from whom a statement, Ex.P43 was recorded on the strength of which a case in Crime No.77/2006 came to be registered under
section 324 IPC. Thus, in the instant case, two cases came to be registered. Therefore, there was case and counter case. The prosecution was fair enough to examine the medical person, P.W.10 who examined A1 and gave treatment and P.W.20 and P.W.21, doctors of the Government Hospital, Salem were also examined through whom the x-ray and scan reports were marked. Thus, the prosecution has placed all the documents before the Court to consider the same.
12. The origin of the occurrence has also made clear through the witnesses. It was stated by the witnesses that when they were just proceeding in front of the house of the accused, they were attacked . It is not the case that the prosecution witnesses were actually armed with any weapons at the time of occurrence. According to the prosecution, A1 and A3 were armed with wooden logs and attacked the first deceased Periyasamy and caused injuries and the corresponding two injuries were noted and according to the doctor, who conducted post mortem, those injuries are fatal. So far as the second deceased Ramalingam are concerned, the case of the prosecution was that all of them surrounded him and attacked him with wooden logs but only one external injury was noticed and the other are internal injuries and suture injuries. Under such circumstances, it is highly doubtful whether the other accused were present at the time of occurrence. A1 and A3 were armed with wood log and so far as P.W.1 is concerned, for the injuries sustained by him, no corresponding injuries were noticed through the medical opinion canvassed. Under such circumstances, the trial Court was not ready to accept the same and found the accused /appellants not guilty under
section 324 IPC. At the same time, P.W.1 cannot said to be, not an eye witness. He has narrated the occurrence and he was taken to the hospital immediately and the doctor who examined him has spoken about the injuries sustained by him. But the prosecution was unable to bring out the common object or in furtherance of common object the accused had acted so. At the same time, the evidence available was specific to the effect that A1 and A3 were armed with wooden logs and attacked the first deceased and second deceased and caused the death of both the deceased.
13. At this juncture, the learned counsel for the appellants brought to the notice of the Court that the injuries sustained by A1 would clearly indicate that they were serious in nature and the explanation tendered by the prosecution witnesses cannot be accepted and hence, the act of the accused would not attract the penal provision of murder. The Court is unable to agree with the learned counsel for the appellant. It is true A1 was injured and underwent treatment and sufficient medical evidence was also produced before the Court. The prosecution was fair enough to bring forth the same before the Court. It is also true that some of the witnesses have explained how the injuries were sustained by the first accused, at the time of same transaction. Those witnesses have not spoken about the fact to the investigating officer at the earliest who recorded 161 statement. But this contention putforth by the learned counsel can be accept in a case where the evidence pertaining to the injury sustained by the accused was not placed before the Court. In the instant case, the F.I.R., 161 statement and medical evidence canvassed were all placed before the Court in respect of the injury sustained by A1. Apart from that, the doctors were also examined. Therefore, the evidence putforth by the prosecution to explain the injuries sustained by A1, has got to be accepted. Under such circumstances, the Court is of the opinion that it was A1 and A3, who were armed with wooden log, have attacked the first and second deceased and caused injuries and as a direct consequence, the first and the second deceased died. Hence, both A1 and A3 are found guilty under
section 302 IPC (2 counts). So far as the other accused/A2, A4, A5, A6, A7 & A8 are concerned, they are entitled for acquittal.
11.Accordingly, the conviction and sentence imposed on appellant Nos.2, 4, 5, 6, 7 & 8 / A2, A4, A5, A6, A7 & A8 by the trial Court are set aside and they are acquitted of the charges levelled against them. They are directed to be released forth with unless their presence is required in connection with any other case. Fine amount, if any paid by them, shall be refunded to them.
Insofar as A1 and A3 are concerned, the conviction under
sections 148, 302, 302 r/w 149 I.P.C are modified and instead, A1 and A3/ Appellant Nos.1 & 3 are convicted under
section 302 I.P.C (2 counts) alone and sentenced to undergo life imprisonment for each count. The sentences are ordered to run concurrently. The period of sentence already undergone by the appellants is ordered to be given set off. The fine amount and the default sentence imposed by the trial court will hold good. Accordingly, the appeal is partly allowed.