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2003 DIGILAW 291 (MAD)

Palani (A1) & Others v. State of Tamil Nadu

2003-02-25

A.K.RAJAN, M.KARPAGAVINAYAGAM

body2003
Judgment :- M.KARPAGAVINAYAGAM, J. A1 Palani was convicted for an offence under Section 302 of I.P.C. and A3 Subramani and A4 Arumugam were convicted for an offence under Section 302 read with 34 of I.P.C. and were sentenced to undergo R.I. for life by the learned Second Additional Sessions Judge, Tirunelveli. Assailing the judgment and conviction, this appeal has been filed. 2. Originally there were five accused. Even before the commencement of trial A2 Suran @ Krishnan died and therefore A1, A3, A4 and A5 alone faced trial. After trial, A5 was acquitted. A1, A3 and A4 were also acquitted in respect of Section 341 of I.P.C. and A3 was acquitted for the offence under Section 302 read with 109 I.P.C. Therefore, the appeal has been filed only by the three accused namely A1, A3 and A4. 3. The case of the prosecution in brief, is as follows:- a) P.W.1 Kannan is the son of the deceased Kathappan. P.W.2 Murugan is the son of the elder brother of the deceased. A1 Palani, A3 Subramani and A4 Arumugam are the sons of A5 Subbiah. All are residing in the same village. (b) The deceased has taken out a thope on lease. He used to go to the thope everyday in the morning and come back in the evening. One day prior to the date of occurrence, the deceased was in the thope and he attempted to molest the wife of A5. When this was informed to the Nattamai, P.W.4, he went to the house of the accused to enquire about the same. A5 and others asked P.W.4 not to interfere in this matter and that they would take care of the matter by dealing with the deceased in their own way. ¸ Thereafter, the accused went to the house of the deceased in search of the deceased. Since the deceased was not available in the house, P.W.5 Sudalaimuthammal, the wife of the deceased, was beaten. P.W.5 requested her son P.W.1 to take P.W.2 and go to the thope to bring the deceased safely to their home. Accordingly P.W.1, son of the deceased, and P.W.2 Murugan, the relative of the deceased, went to the thope and found the deceased in a hut in the thope. P.W.5 requested her son P.W.1 to take P.W.2 and go to the thope to bring the deceased safely to their home. Accordingly P.W.1, son of the deceased, and P.W.2 Murugan, the relative of the deceased, went to the thope and found the deceased in a hut in the thope. Both of them informed the deceased about the conspiracy of the accused to attack him and asked him to come along with him so that he can be escorted to the village safely and accordingly the deceased was brought by P.Ws. 1 and 2 to the village. (d) It was at about 9.45 p.m. on 29.6.96. On the way, A1 and A2 came there with Aruval. A3 and A4 also came there with sticks. All the accused intercepted the deceased and the witnesses. A3 and A4 caught hold of P.W.1, while A1 and A2 inflicted injuries on the neck, shoulder and forehead of the deceased. When P.Ws. 1 and 2 cried aloud, all the accused ran away from the scene of occurrence with the weapons carrying in their hands. (e) P.Ws. 1 and 2 saw the deceased dying on the spot. Then, P.W.1 on the advise of P.W.2 went to Courtralam police station and gave a complaint, Ex.P.1 at about 10.45 a.m. P.W.12 the Sub Inspector of Police registered a case in Crime No.240 of 1996. Ex.P.18 is the printed first information report. (f) P.W.13 the Inspector of police on receipt of the information about the murder rushed to the scene of occurrence at about 12.00 noon on 29.6.96 and prepared the Observation Mahazar Ex.P.2 and a rough sketch Ex.P.20. He also recovered blood stained earth M.O. 7 and sample earth M.O.8. He conducted inquest on the dead body of the deceased and the inquest report is Ex.P.21 . During the inquest he examined P.Ws.1, 2 and others. Then the body was sent for post mortem. (g) P.W.8, the Doctor conducted post mortem on 30.6.96 at about 11.00 a.m. He noticed that the deceased had sustained six cut injuries of various sizes. The Doctor gave the post mortem certificate Ex.P.7 giving his opinion that the deceased appeared to have died of shock and hemorrhage due to fatal injuries on the neck. (h) The next day i.e. on 30.6.96 P.W.13 arrested A1 and based on his confession statement he recovered M.O.1 aruval with blood stained. The Doctor gave the post mortem certificate Ex.P.7 giving his opinion that the deceased appeared to have died of shock and hemorrhage due to fatal injuries on the neck. (h) The next day i.e. on 30.6.96 P.W.13 arrested A1 and based on his confession statement he recovered M.O.1 aruval with blood stained. Then he continued with the investigation by examining the witnesses. He came to know on 3.7.96 that A2 Suran @ Krishnan, A3 Subramanian @ Mariappan and A4 Arumugam surrendered before the Judicial Magistrate, Tirunelveli. Then all the three accused were taken into police custody on 17.7.96. Based on the confession statements of A2 to A4, P.W.13 the Inspector of Police, seized M.O.2 Aruval from A2, M.O.3 stick from A3 and M.O.4 stick from A4. (i) Then P.W.13 arranged for sending the material objects for chemical examination. After completing the investigation, he filed a final report against A1 to A5 for offences under Sections 341, 342, 302 read with 109, 302 read with 120 (B) and 302 read with 34 of I.P.C. 4. After framing appropriate charges against the accused, the trial commenced. During the course of trial on the side of prosecution P.Ws 1 to 13 were examined; Exhibits P.1 to P.21 were marked and M.Os. 1 to 11 were produced. 5. As stated above, A2 died during trial and that trial went on only against the four accused viz. A1, A3, A4 and A5. When the accused were questioned under Section 313 of Cr.P.C. they simply denied having committed the offence. 6. The trial Court on appreciation of the evidence available on record, though acquitted all the accused in respect of the charge under Section 341 of I.P.C., found A1 guilty for an offence under Section 302 of I.P.C. and convicted and sentenced him to undergo RI for life while A3 and A4 were convicted and sentenced to undergo RI for life for an offence under Section 302 read with 34 of I.P.C. while A5 was found not guilty of an offence under Section 302 read with 120 (B) of I.P.C. and A3 was also acquitted for the offence under Section 302 read with 109 of I.P.C. Challenging the said conviction and sentenced, A1, A3 and A4 have filed this appeal. 7. 7. Mr.R.Raghupathy, learned counsel for the appellants would take us through the entire evidence and point out the various infirmities available in the evidence on record and contend that the prosecution has failed to establish the guilt by adducing acceptable evidence and as such, the appellants are entitled for an acquittal. Ultimately, the learned counsel for the appellants would contend that even assuming that the entire case of the prosecution is true, A3 and A4 cannot be convicted for the offence under Section 302 read with 34 of I.P.C. in view of lack of material to show that A3 and A4 shared the common intention with A1 to commit the murder of the deceased and as such, atleast A3 and A4 may be given the benefit of doubt. 8. Arguing contra, Mr.E. Raja, Additional Public Prosecutor would point out the evidence of the witnesses who spoke about the motive and submit that the very fact that A3 and A4 caught hold of P.W.1 and prevented him from proceeding further would clearly show the intention of A3 and A4 to facilitate the other accused to commit the murder of the deceased and as such, it has to be held that all the accused shared the common intention for committing the murder of the deceased. 9. We have given our thoughtful consideration over the rival submissions urged on either side. 10. On a careful scrutiny of the evidence of P.Ws.1 and 2, the eye witnesses, and Ex.P.1, the complaint given by P.W.1 to P.W.12 the Sub Inspector of Police, we are unable to hold that the evidence of eye witnesses would suffer from any infirmity. The evidence of P.W.5, the wife of the deceased, would clearly reveal that early in the morning all the accused came to the house of the deceased in search of the deceased and since the deceased was not available, the wife of the deceased, P.W.5, was beaten up by them. Noticing that her husband's life is in danger at the hands of the accused, P.W.5 sent P.Ws. 1 and 2, so that they can save the life of the deceased from the hands of the accused. Accordingly, P.Ws.1 and 2 went to the thope, found the deceased and after briefing him the whole thing were bringing back the deceased. On the way, the accused restrained them and the deceased was attacked by A1 and A2. 1 and 2, so that they can save the life of the deceased from the hands of the accused. Accordingly, P.Ws.1 and 2 went to the thope, found the deceased and after briefing him the whole thing were bringing back the deceased. On the way, the accused restrained them and the deceased was attacked by A1 and A2. A2 caused only two injuries while A1 inflicted four injuries. Out of the four injuries, injury numbers 1 and 2 inflicted by A1 were fatal. On seeing the post mortem certificate, Ex.P.10 and on the evidence of P.W.8, the Doctor, it is clear that those injuries 1 and 2 noticed on the neck of the deceased were fatal and the neck was almost severed. 11. The reasonings for acquitting the other accused in respect of the other charges would not in any way help to reject the evidence of P.Ws.1 and 2 in respect of the part played by the appellants. 12. The occurrence took place at about 9.30 a.m. on 29.6.1996. The complaint was given to P.W.12, the Sub Inspector of Police at 10.45 a.m. and the First Information Report and the complaint Ex.P.1 were sent to the Magistrate immediately and the same was received by the Magistrate at 1.00 p.m. on the same day. Therefore, there is no delay in lodging the complaint as well as in despatching the F.I.R. to the Court. 13. With regard to A3 and A4, it is vehemently contended by counsel for the appellants that the evidence adduced by P.Ws. 1 and 2 did not disclose that A3 and A4 shared the common intention with A1 and A2 to commit the murder of the deceased. We find some force in this contention. 14. At the outset, it shall be stated that though all the accused were charged and tried for an offence under Section 302 read with 120 (B) of I.P.C., all of them were acquitted of the said charge. Even in respect of A3 though he was charged for an offence under Section 302 read with 109 of I.P.C., in view of the contradictions found in the evidences of P.W.1 and 2, he was acquitted of that charge. 15. Even in respect of A3 though he was charged for an offence under Section 302 read with 109 of I.P.C., in view of the contradictions found in the evidences of P.W.1 and 2, he was acquitted of that charge. 15. In the light of the above facts, we have to consider whether the evidence available as against A3 and A4 would be sufficient to hold that they shared a common intention on the part of this occurrence. In Ex.P.1 complaint given by P.W.1 it is stated as follows : According to the complaint A3 and A4 caught hold of P.W.1 from proceeding further. P.W. 1 in his evidence would state as follows : P.W.2 in his evidence would state that both A3 and A4 caught hold of P.W.1 without allowing him to move. This statement given by P.W.2 is as follows : The accused Arumugam A4 and Subramani A3 caught hold of P.W.1. This statement referred to in Ex.P.1 and in the evidence of P.Ws.1 and 2 would clearly indicate that they caught hold of P.W.1 in order to prevent him to go near the deceased to save him or prevent the other accused from committing the attack on the deceased. 16. In this context it has to be stated that all the accused have been acquitted in respect of the charge of conspiracy. Tough there are materials, through the evidence of P.Ws.4 and 5, to show that all the accused were in search of the deceased to wreak vengeance for the incident that happened in the thope when the wife of A.5 was molested by the deceased, the trial Court gave a finding that the said conspiracy had not been proved. In the light of the said finding which has not been challenged before this Court through an appeal filed by the State, it has to be considered whether this evidence with reference to the part played by A3 and A4 in catching hold of P.W.1, while the deceased was attacked by A1 and A2, would be sufficient to hold that A3 and A4 had the common intention to facilitate the other accused to attack the deceased without any interruption. 17. On a careful scrutiny, we are unable to come to such a conclusion in view of the fact that P.W.2, another eye witness, who was present at the scene of occurrence was never touched by A3 and A4. 17. On a careful scrutiny, we are unable to come to such a conclusion in view of the fact that P.W.2, another eye witness, who was present at the scene of occurrence was never touched by A3 and A4. If their intention is to prevent the witnesses from intercepting the other accused to attack the deceased, then certainly both the accused would have caught hold of both the witnesses namely P.Ws.1 and 2. As a matter of fact P.W.2 would specifically state in his cross examination that So according to P.W.2 no accused caught hold of him and he was never chased by any of the accused. 18. Under those circumstances, even assuming that the entire prosecution case is true in respect of the part played by A3 and A4, from what has been brought out through the evidence of P.Ws.1 and 2, it cannot be contended that the element of common intention on the part of A3 and A4 has been clearly established. At the risk of repetition, we are to state that the trial Court has acquitted the accused 3 and 4 in respect of the charge of instigation and acquitted all the accused in respect of the charge of conspiracy. At the most we can hold that there is evidence to show that A3 and A4 wrongfully restrained P.W.1 and as such they could be convicted only for an offence under Section 341 of I.P.C. 19. however, the trial Court has, as indicated above, acquitted all the accused in respect of the offence under Section 341 of I.P.C. as well. Therefore, there is no other alternative except to acquit A3 and A4, in respect of the offences for which they are convicted. 20. Accordingly the conviction and sentence imposed upon the appellants 2 and 3 (A3 and A4) is set aside as they are entitled to the benefit of doubt. 21. As far as A1 is concerned, the conviction and sentence imposed on him is confirmed. 22. To sum up, the appeal as far as A1 is concerned shall stand dismissed fully and the appeal as far as A3 and A4 are concerned shall stand allowed.