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2005 DIGILAW 1552 (MAD)

Shanmugam & Others v. State

2005-09-16

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2005
Judgment :- (Criminal Appeal against the judgment of conviction and sentence dated 28.10.2002 in S.C.NO.208 of 2002 on the file of the Principal Sessions Judge, Nagapattinam.) AR.Ramalingam, J. This criminal appeal has been preferred by the appellants/A-1 to A-3 in S.C.No.208 of 2002 on the file of the Principal Sessions Court, Nagapattinam, against the conviction of life sentence for the offence under Section 302 IPC against Shanmugam, the first appellant/A-1 with fine of Rs.1,000/-; life sentence for the offence under Section 302 read with 34 IPC with fine of Rs.1,000/- against Mathiazhagan, the second appellant/A-2 and conviction of six months' simple imprisonment with fine of Rs.250/- for the offence under Section 323 IPC against Rajendran, the third appellant/A-3. 2. Brief facts of the case before the trial Court could be narrated as under: (a) All the three accused are brothers and residents of Thagattur Govindankottai. P.W.1 Shanthi who is the complainant, is the sister of the deceased Madhavan @ Veeraiyan. P.W.2 Subramanian who is the injured, is the brother of the deceased. P.W.6 Dhanam is the wife of the deceased Veeraiyan. P.Ws.3 to 5, namely Muruganandam, Palaniappal and Petha Perumal, who are the residents of the same village, are said to have witnessed the occurrence and during the course of trial, they turned hostile. (b) All the accused, who are brothers, are the sons of one Chellaiah, residing in the same village. They are none others than the paternal uncle's sons of the deceased Veeraiyan as well as P.Ws.1 and 2. (c) On 2.7.2001 at about 4.00 p.m., A-3 Rajendran disconnected the electricity connection leading to the house of P.W.2 Subramanian. On the next day, i.e. on 3.7.2001 morning, P.W.2 Subramanian enquired with P.W.1 Shanthi about the disconnection of electricity. For this, P.W.1 Shanthi informed that A-3 Rajendran had disconnected the electricity connection. At that time, A-1 Shanmugam, A-2 Mathiyazhagan, arming with M.Os.1 and 2 aruvals and A-3 Rajendran, arming with M.O.3 spade handle, came to the house of P.W.2 Subramanian and quarrelled and justified their action of disconnection. (d) Following that, at about 9.30 a.m., deceased Veeraiyan came to the house of P.W.2 Subramanian and himself and P.W.2 proceeded for their work and on the way, A-1 and A-2 attacked with aruvals, indiscriminately on the head and hand of the deceased Veeraiyan and P.W.2 Subramanian. (d) Following that, at about 9.30 a.m., deceased Veeraiyan came to the house of P.W.2 Subramanian and himself and P.W.2 proceeded for their work and on the way, A-1 and A-2 attacked with aruvals, indiscriminately on the head and hand of the deceased Veeraiyan and P.W.2 Subramanian. A-3 attacked P.W.1 Shanthi and one Ranganayagi and one Dhakshinamurthy, who came to rescue the deceased. P.W.6 Dhanam came out from the house and witnessed the entire occurrence and the deceased Veeraiyan died on the spot and then, all the accused ran away from the occurrence place. (e) Thereafter, P.W.2 Subramanian was taken to Thiruthuraipoondi Government Hospital, where P.W.9 Dr.Adhiyaman gave treatment and referred for further treatment to Thanjavur Government Hospital and also issued wound certificate marked as Ex.P-8. P.W.13 Dr.Rathinasabapathy gave treatment at Thanjavur Government Hospital and also found fracture on the middle finger of P.W.2 Subramanian. (f) In the meanwhile, P.W.1 Shanthi proceeded to Voimedu Police Station and gave a complaint, marked as Ex.P-1 to P.W.17 Chidambaram, Special Sub-Inspector of Police, who in turn registered the case in Crime No.288 of 2001 for the offences under Sections 323, 324, 307 and 302 IPC and also prepared the printed F.I.R. marked as Ex.P-17 and despatched the same to the concerned Court and other Police officials through P.W.15 Grade-I Constable. (g) On receipt of Ex.P-17 F.I.R. and Ex.P-1 complaint, P.W.18 Chinnasamy, Inspector of Police, took up the investigation and proceeded to the occurrence place and prepared Ex.P-3 observation mahazar and drew Ex.P-18 rough sketch in the presence of P.W.7 Radhakrishnan, Village Administrative Officer and another. (h) P.W.18 Inspector of Police also conducted inquest on the body of the deceased Veeraiyan in the presence of Panchayatdars and witnesses, between 3.30 p.m. and 5.15 p.m. and prepared Ex.P-19 report. He also recovered M.O.8 blood stained earth and M.O.9 ordinary earth from the occurrence place under Ex.P-4 mahazar in the presence of witnesses and also recovered M.O.2 aruval and M.O.3 spade handle under Ex.P-5 mahazar in the presence of witnesses. Further, he examined and recorded the statements of P.Ws.1 to 7. Thereafter, P.W.18 Inspector of Police sent the body for conducting post-mortem. (i) On 3.7.2001 at about 8.40 p.m., P.W.10 Dr.Pandian gave treatment to P.W.1 Shanthi, who came with a Police memo and issued Ex.P-9 accident register copy. Further, he examined and recorded the statements of P.Ws.1 to 7. Thereafter, P.W.18 Inspector of Police sent the body for conducting post-mortem. (i) On 3.7.2001 at about 8.40 p.m., P.W.10 Dr.Pandian gave treatment to P.W.1 Shanthi, who came with a Police memo and issued Ex.P-9 accident register copy. Further, as per the requisition of P.W.18 Inspector of Police, P.W.11 Dr.Chandrasekaran conducted post-mortem on 4.7.2001 at about 7.30 a.m. and found about ten external injuries on the body of the deceased and gave an opinion in Ex.P-10 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to multiple injuries and particularly, head injury. (j) In the meanwhile, P.W.18 Inspector of Police arrested all the three accused at about 6.00 a.m. on 4.7.2001 in the presence of P.W.8 Thamizhkumaran and another and recorded the confession statement given by A-1 marked as Ex.P-7 being the admissible portion of the confession statement and based on the same, he recovered M.O.1 aruval used by A-1 under Ex.P-6 mahazar. Further, on 5.7.2001, he recovered M.Os.4 and 5 blood stained clothes from P.W.1 Shanthi under Ex.P-2 mahazar and M.Os.6,7,10 and 11 blood stained clothes of the deceased. (k) After post-mortem, through Ex.P-11 requisition to the Judicial Magistrate, P.W.18 Inspector of Police sent the material objects for chemical analysis. (l) After completion of the investigation, P.W.18 Inspector of Police filed the chargesheet against the accused persons. 3. After having examined 18 prosecution witnesses and marked 19 exhibits and 11 material objects, the Sessions Court has found that the charge under Section 302 IPC against A-1, charge under Section 302 read with 34 IPC against A-2 and charge under Section 323 IPC against A-3 have been proved and convicted and sentenced them as indicated above. 4. Learned counsel appearing for the appellants/accused has made the following submissions: (a) There was inordinate delay in giving the complaint and bringing the same to the concerned Court; (b) P.W.1 Shanthi, P.W.2 Subramanian and P.W.6 Dhanam who are figuring as eye-witnesses, are interested persons and so, their evidence cannot be safely relied on; (c) In fact, A-2 did not cause any injury on the deceased, but he is said to have caused injury only on P.W.2 Subramanian, whereas, P.Ws.1,2 and 6, the eye-witnesses, have stated that the injuries were caused by A-2 on the deceased, which is a material contradiction. Learned counsel pointed out that the conviction and sentence against the appellants/A-1 to A-3 are to be set aside and consequently, they are liable to be acquitted of the charges. 5. We have heard learned Additional Public Prosecutor upon the said submissions. 6. We have given our consideration to the submissions made by learned counsel for the parties. 7. After having gone through the entire oral and documentary evidence available in this case and in the light of the submissions made by learned counsel appearing for the appellants/A-1 to A-3 as well as learned Additional Public Prosecutor, as far as the first contention, namely the delay in giving Ex.P-1 complaint and sending the same to the concerned Court, it is to be pointed out that the occurrence village is 4 Kms. away from the Voimedu Police Station and there is no dispute over the same and thereby, inasmuch as P.W.1 Shanthi has deposed that she went to the Police Station by walk and she happened to give Ex.P-1 complaint on 3.7.2001 at about 1.30 p.m. to P.W.17 Chidambaram, Special Sub-Inspector of Police, who received it and registered the case. 8. P.W.1 Shanthi being a girl of remote village cannot be expected to give the complaint about the occurrence without such gap of time between the time of occurrence and the time of giving Ex.P-1 complaint. In other words, there is a time gap of four hours between 9.30 a.m. and 1.30 p.m. This time gap, in our view, cannot be construed as abnormal delay on the part of P.W.1 Shanthi in giving the complaint, inasmuch as she had to necessarily go to the Police Station only by walk after preparation of the complaint through some third person. 9. Likewise, it is also to be pointed out that P.W.17 Special Sub-Inspector of Police has explained in the cross-examination that on that day, there was some agitation over the arrest of the former Chief Minister and there was no transport facility and it is quite but natural that P.W.1 Shanthi happened to arrive at the Police Station by walk and Ex.P-1 F.I.R. also happened to be received by the Court concerned at about 8.15 p.m. on 3.7.2001 and further, similar explanation has been given by P.W.18 investigating officer (Inspector of Police). 10. 10. Therefore, on account of the lack of transport facility on that particular day, namely on 3.7.2001, such a delay is unavoidable and the delay cannot be construed as abnormal and inordinate in a way to make the very complaint marked as Ex.P-1 itself as a false or fabricated one altogether. Consequently, the first submission about the delay, has to be rejected. 11. Coming to the question of interestedness of P.Ws.1,2 and 6, it is to be pointed out that the other three independent witnesses examined by the investigating officer and by the Sessions Court, namely P.Ws.3,4 and 5, have turned hostile and so, the other available eye-witnesses, namely P.Ws.1,2 and 6 have come forward to give evidence about the occurrence in detail in all material particulars. 12. Simply because P.W.1 Shanthi is the sister of the deceased, P.W.2 Subramanian is the brother of the deceased and P.W.6 Dhanam is the wife of the deceased, their evidence as such cannot be viewed otherwise to suspect their version. It is more so when in a remote village, that too when the parties are related to each other, and the occurrence is at about 9.30 a.m. in the residential locality, it cannot be stated that P.Ws.1,2 and 6 have chosen to give false averments against the accused totally. 13. On going through the evidence of P.Ws.1,2 and 6 carefully, we are able to see that their version in respect of the attack made by A-1 and A-2 upon the deceased Veeraiyan as well as P.W.2 Subramanian does not appear to be artificial or unbelievable and that, on the other hand, they being rustic and village people, their version is natural and believable in practical way of approach and ordinary prudence. Therefore, the submission made by the appellants' counsel in this respect also has to be rejected. 14. Therefore, the submission made by the appellants' counsel in this respect also has to be rejected. 14. Coming to the third submission, it has to be pointed out that as per Ex.P-1 complaint, it has been mentioned that A-1 Shanmugam attacked the deceased Veeraiyan with M.O.1 aruval and A-2 Mathiazhagan attacked P.W.2 Subramanain with M.O.2 aruval and caused many injuries and the occurrence was witnessed by P.W.6 Dhanam, P.W.3 Muruganandaham, P.W.4 Palaniappan and P.W.5 Petha Perumal and that however, P.W.1 Shanthi in her evidence, has stated that both A-1 and A-2 attacked P.W.2 Subramanian each with aruvals first and then attacked the deceased Veeraiyan each with aruvals and caused many injuries on P.W.2 Subramanian and the deceased Veeraiyan. 15. Therefore, in our view, there is no material contradiction between the allegations made in Ex.P-1 complaint and the evidence of P.W.1 Shanthi to such an extent of disbelieving their evidence totally. The fact remains that both A-1 and A-2 attacked P.W.2 Subramanian and the deceased and it is immaterial to say that P.W.2 Subramanian was attacked first and the deceased was attacked subsequently. 16. P.W.11 Dr.Chandrasekaran who conducted post-mortem, has found ten external injuries on the body of the deceased, which lead to the death of the deceased Veeraiyan and likewise, the other Doctors, namely P.Ws.9 and 13, who treated P.W.2 Subramanian have given evidence to the effect that they gave treatment to P.W.2 Subramanian respectively in Thiruthuraipoondi and Thanjavur Government Hospitals and fracture in the middle finger of P.W.2 Subramanian was also found. 17. Therefore, the evidence of P.Ws.9 and 13 Doctors, coupled with the nature of injuries upon the body of the deceased and P.W.2 Subramanian, would go to show that the first and second appellants/A-1 and A-2 have brutally attacked the deceased Veeraiyan and P.W.2 Subramanian with the deadly weapons, namely M.Os.1 and 2 aruvals with the intention to murder them. 18. In this context, it is also to be noted that simply because P.W.2 Subramanian has survived and Veeraiyan alone died, it cannot be stated that A-2 has not committed the offence under Section 302 read with 34 IPC as found by the Sessions Court. 19. 18. In this context, it is also to be noted that simply because P.W.2 Subramanian has survived and Veeraiyan alone died, it cannot be stated that A-2 has not committed the offence under Section 302 read with 34 IPC as found by the Sessions Court. 19. It is to be observed that whenever there is a charge under Section 34 IPC, it is not necessary that each accused should do some specific overt acts for the purpose of attracting the offence under Section 34 IPC and on the other hand, it is enough that there is common intention of more than one accused to do a particular act of causing injuries with ulterior motive of murdering a particular person. 20. In this case, there is sufficient evidence to show that due to the attack made by A-1 and A-2, one person, namely Veeraiayan (deceased) has died and another person, namely P.W.2 Subramanian has sustained simple and grievous injuries during the course of one and the same transaction. 21. It is more so when there is a long standing enmity between the parties in respect of taking or sharing the land allotted to them by the villagers for their service as carpenters and it is immaterial to say that there is contradictory version with reference to the question whether on the previous day, the electricity connection leading to the house of P.W.2 Subramanian or the house of the deceased Veeraiyan, was disconnected by A-3 Rajendran. 22. Therefore, as rightly found by the Sessions Court that A-1 has committed the offence under Section 302 IPC and A-2 has committed the offence under Section 302 read with 34 IPC, we are also of the considered view that the charges and findings as against A-1 and A-2 for the offences under Section 302 and 302 read with 34 respectively, needs no interference by this Court. It is more so when the stand of the accused as suggested to the witnesses more artificially that P.W.2 alone attacked the deceased due to the dispute between themselves over the land given by the villagers for their service and caused the death of Veeriayn. 23. It is more so when the stand of the accused as suggested to the witnesses more artificially that P.W.2 alone attacked the deceased due to the dispute between themselves over the land given by the villagers for their service and caused the death of Veeriayn. 23. Coming to the question of conviction and sentence against A-3 Rajendran for the offence under Section 323 IPC, we are of the view that there is no acceptable and sufficient material to show that he actually caused simple injury on P.W.1 Shanthi in the manner alleged by her. It is also to be pointed out in this context that in Ex.P-1 complaint, it is nowhere stated that A-3 Rajendran attacked P.W.1 Shanthi with M.O.3 spade handle. P.W.10 Dr.Pandian has stated that he gave treatment to P.W.1 Shanthi on her representation that she was feeling pain on her right shoulder, head and back and he was able to find abrasion upon her right shoulder. However, in the cross-examination, P.W.10 Dr.Pandian has stated that the said abrasion cannot be caused by the aruval and if she was attacked with spade handle like M.O.3, there would be contusion and he did not find any such contusion on P.W.1 Shanthi and that particularly, even the said P.W.1 Shanthi would have pretended to feel pain and the said abrasion was inside her jacket and the said jacket was also not torn off. Therefore, it is highly improbable and unnatural on the part of P.W.1 Shanthi to say as if she was attacked by A-3 Rajendran and thereby, sustained abrasion upon her right shoulder. 24. Therefore, in the absence of any allegation about such an attack in Ex.P-1 complaint and taking note of the opinion of P.W.10 Doctor in his cross-examination, we are of the view that the charge against A-3 Rajendran on this score for the offence under Section 323 IPC cannot be said to have been proved. Consequently, the finding in this respect by the Sessions Court and the conviction and sentence of A-3 Rajendran are liable to be set aside. 25. Accordingly, the third appellant/A-3 Rajendran deserves to get acquittal. 26. For the above observed aspects, this criminal appeal has to be dismissed insofar as it relates to A-1 and A-2 and deserves to be allowed insofar as it relates to A-3. 27. 25. Accordingly, the third appellant/A-3 Rajendran deserves to get acquittal. 26. For the above observed aspects, this criminal appeal has to be dismissed insofar as it relates to A-1 and A-2 and deserves to be allowed insofar as it relates to A-3. 27. Hence, we allow the appeal in part, confirming the conviction and sentence imposed by the Sessions Court on the first and second appellants/A-1 and A-2 and setting aside the conviction and sentence imposed by the Sessions Court on the third appellant/A-3. Since A-2 is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence. The third appellant/A-3 is acquitted of the charge and since A-3 is also on bail, the bail bond if any executed by him shall stand cancelled and the fine amount, if paid by A-3 is ordered to be refunded.