M. CHOCKALINGAM, J. - (1.) THE appellants herein, who were ranked as A-1 to A-3, were tried by the Court of Sessions, Tiruchirapalli , where the 1st appellant/a-1 was found guilty under S. 302 of I. P.C. , while the 2nd and 3rd appellants/a-2 & A-3 were found guilty under S. 302 read with S. 34 of I. P.C. , and all the accused were sentenced to life imprisonment.
(2.) THE first appellant stood charged under S. 302 of I. P.C. , while the appellants 2 and 3 were charged under s. 302 read with S. 34 of I. P.C. alleging that on 28. 3. 1992 at 11. 00 A. M. , in further of their common object to kill one subramanian, A-2 and A-3 caught hold of him, while A-1 attacked him on his head with spade; and that the injured who was admitted in the Government Hospital, Trichy died on 29. 3. 1992 as a direct consequence of the the injuries caused to him by the accused. The facts of the prosecution case can shortly be stated as follows:P. W. 1 Selvam , his father P. W. 6 Ayyavoo @ Nondikaruppan , P. W. 7 Muthukaalai @ Muthusamy and the deceased Subramanian were residents of Kuppanoor. The accused also belonged to the same place. A-2 and A-3 are brothers. The agricultural lands of the accused were situate on the north of Kallupatti Elamanam east-west road, while the lands of the deceased and the witnesses were situate on the south of the said Road. The east-west river vari was situate on the southern side of the said east-west Road and abutting the lands of the deceased and the witnesses on the north. One year before the occurrence, A-1 and A-2 dug a well in their lands and dumped the excavated earth on the southern side of the road abutting the lands of the deceased and the witnesses, despite objections. Consequently, the lands of the deceased and the witnesses were damaged during the rainy season. In view of the same, the relationship between the accused and the deceased and the witnesses became strained. Two days prior to the occurrence, the third accused dug a well in his land and dumped the excavated earth near the land of the deceased. The deceased and the adjacent land owners questioned the same. But, the third accused did not care for the same. On 28. 3. 1992 at about 11. 00 A. M., p. Ws. 1, 6, and 7, the deceased and the others were doing agricultural operations in their respective fields. At that time, the third accused as he did previously, dumped the excavated earth near the land of P. Ws. 1 and 6, to which they raised objections. The deceased and P. W. 7, who stood nearby, questioned the act of A-3. Immediately, A-1 and A-2 joined A-3 and talked in support of him. The deceased asked all the accused why they should dump the excavated earth, despite their objection. Immediately, A-3 took a stick and attacked the deceased. The deceased sustained injury on his right thumb, when he warded of the attack. A-2 attacked the deceased with a stick on his right shoulder. A-1 ran towards his well and brought a spade. A-2 and A-3 caught hold of the deceased, while a-1 attacked the deceased on his head with the spade. The seriously injured deceased fell on the ground. The other witnesses hired a car bearing registration No. MDA 4443, owned by P. W. 10 Manokaran at Vaiyampatti and took the injured from the place of occurrence to Government Hospital, Manaparai. P. W. 2 Dr. Venkatachalam attached to Government Hospital, Manaparai treated him and found the following injuries. 1. A lacerated wound with diffused wound 3 x over left temporal. 2. Two lacerated wounds 3 x 2 over right index finger. 3. An abrasion 2 x 2 right thumb. P. W. 2 Doctor has issued Ex. P2 accident register in that regard. The Doctor referred the injured to Trichy Government Hospital. At about 2. 00 P. M., the injured was admitted at Trichy Government Hospital. P. W. 3 Dr. Manivel examined him and found the very same injuries, noticed by P. W. 2 Doctor. The accident register given by P. W. 3 is marked as Ex. P3. On the strength of Ex. P1 statement given by P. W. 1, the sub Inspector of Police Mr. Devadoss , attached to Puthanantham Police Station, registered a case in Crime no. 26/92 under Ss 323, 307 and 341 of I. P.C. against the accused. He sent Ex. P14 express First Information Report to the concerned court. On receipt of the copy of the F. I.R. , P. W. 12 Jayakumar , Inspector of Police, proceeded to the Head Quarters Hospital , Trichy. Since the injured was unable to speak, he recorded the statements of P. W. 1 and other witnesses. He recovered M. O. 1 dhoti worn by the deceased at the time of occurrence under Ex. P6 mahazar. On 29. 3. 1992 at 6. 45 A. M. , he inspected the site of incident, prepared Ex. P7 observation mahazar and Ex. P15 rough sketch, and recovered M. O. 2 bloodstained earth and M. O. 3 sample earth. He recorded the statement of the witnesses. The victim, who underwent treatment in the Government Hospital, Trichy ,died at 12. 00 noon on 29. 3. 1992. Ex. P4 death intimation given by P. W.4 Dr. Mathivanan, was despatched to Outpost Police station. On receipt of the said intimation, the Head Constable attached to Puthanantham Police Station converted the case into one under S. 302 of I. P.C. and despatched Ex. P16 express report to the concerned court. On receipt of the information, the Investigation Officer proceeded to the Government Hospital, Trichy , conducted the inquest on the dead body of Subramanian between 3. 00 P. M. and 5. 30 P. M. nd prepared Ex. P17 inquest report. He sent the dead body with a requisition for postmortem through a constable P. C. 1590. On receipt of the said requisition, P. W. 5 Dr. R. Kumar commenced the postmortem at 11. 00 A. M. on 30. 3. 1992, conducted the autopsy and found the following external injuries on the dead body and corresponding internal injuries. 1. A swelling at the left side of head over left ear measuring 4" with a sutured (3) wound measuring " length present. 2. A lacerated wound 2 " on the right thumb. 3. A small lacerated in the right index finger. 4. Abrasion 2" on the back of right shoulder. 5. Bleeding through right ear present. 6. Back of IV line present in left forearm. Stomach empty. On opening the wound (1) blood clot seen underneath scalp. Bones in the left side fractured, irregular extending to the base of skull, under the fractured base. Blood clot about 100 ml present brain matter found in several places & blood clots present all over brain. P. W. 5 Doctor issued Ex. P5 postmortem certificate and has opined that the deceased would appear to have died of shock and haemorrhage and damage to brain. The Investigation Officer examined P. W. 5 and recorded his statement. A constable P. C. 1590 produced M. O. 4 dhoti and M. O. 5 waist string from the dead body, which were recovered by p. W. 12. P. W. 13 R. Salomen , Inspector of Police, who took up the further investigation of the case, made Ex. P10 requisition to the concerned Judicial Magistrate's Court to send all the material objects for chemical analysis. The Chemical Analyst's report is marked as Ex. P12, while the Serologist's report is marked as Ex. P13. On completion of the investigation, he filed a charge sheet against the accused under S. 302 read with S. 34 of Indian Penal Code. In order to prove the case, the prosecution has examined 13 witnesses and marked 17 exhibits and 5 material objects. When the accused were questioned under S. 313 of Code of Criminal Procedure, they flatly denied the versions of the prosecution witnesses as false. No defence witness was examined. The learned Sessions Judge after hearing the rival submissions and scrutiny of the available materials found both the accused guilty and ultimately sentenced them to undergo life imprisonment. Aggrieved appellants/accused have brought forth this appeal.
(3.) THE learned Counsel appearing for the appellants would submit that though the occurrence has taken place by 11. 00 A. M. , the first information was given only at 6. 30 P. M. , and thus, there was an inordinate delay; that the said delay was not explained; that in view of the same, no reliance could be placed on Ex. P14 F. I. R. ; that though there were number of persons and close relations to the deceased, no one informed the occurrence to the Police, and the same would clearly indicate that the accused who were inimical to the deceased, were deliberately roped in, in order to wreck vengeance; that it is pertinent to note that P. Ws. 1, 6 and 7 are all interested witnesses; that all the eyewitnesses have spoken that A-2 attacked the deceased on his shoulders, but no corresponding injury is found, which would indicate that they could not seen the occurrence; that with regard to the place of occurrence, there are lot of discrepancies; that P. W. 1 has categorically deposed that he has not stated the place of occurrence in his ex. P1 complaint; that there is variance between the testimonies of the witnesses and the observation mahazar and rough sketch with regard to the scene of occurrence; that it is highly artificial that the first accused ran to his well, which was situate about 300 feet away, brought the spade and attacked the deceased; that a perusal of Ex. P12 chemical analyst's report would indicate that vegetable matter was seen on the bloodstained earth as well as sample earth sent to the laboratory, and thus, the occurrence should have taken place within thope or field; that according to P. W. 2 Doctor, the deceased was said to have been brought by one Kandasamy , and hence, P. W. 1 could not have taken the deceased to the hospital; that the evidence of P. Ws. 1, 6, 7 and 10 cannot be relied on, in view of the testimony of P. W. 2; that it is pertinent to note that the said Kandasamy has not been examined by the prosecution; that the evidence of P. W. 2 that the deceased was said to have told him that he was beaten by five known persons, throws a doubt over the prosecution case; that it is significant to note that when the deceased was brought to the hospital at Manapparai at 1. 00 P. M. , no complaint was given either to the Police or to the Village Administrative officer; that after the first aid, the deceased was straight away taken to the hospital at Tiruchirapalli , and this will clearly show that Ex. P1 complaint and Ex. P14 FIR were concocted to rope in all the appellants in the case; that it is the evidence of P. Ws. 1, 6 and 7 that a quarrel was said to have taken place between P. W. 6 and A-3; that while so, it is highly unbelievable that the accused should have attacked the deceased; that according to Ex. P2 wound certificate, there is no wound on the right shoulder, which will eliminate A-3 from the offence; that it is pertinent to note that there was two days delay in sending the FIR to the Court; that the weapons alleged to have been used by the accused were not recovered; that there are no independent witnesses to corroborate the evidence of P. Ws. 1, 6 and 7; that according to P. W. 7, the deceased was said to have been taken to the hospital by his wife, but she has not been examined; that the evidence of P. W. 8 is totally unbelievable; that P. W. 1 has not stated in his statement to the police about the presence of P. W. 8 in the hospital on 28. 3. 92, and as such, the very presence of P. W. 8 on 28. 3. 92 in the hospital and his having signed Ex. P6 mahazar are totally unbelievable; that there are lot of contradictions between the evidence of P. W. 1 and P. W. 10; that even if the entire version of the prosecution is accepted as true, it makes an offence under S. 304 Part II I. P. C. , and the sentence awarded to the appellants are excessive; that the judgment of conviction and sentence passed by the lower court cannot be sustained, and hence, the same has got to be set aside, and the appellants be acquitted of the charges. Per contra, the learned Additional Public Prosecutor would submit that the prosecution has clearly proved that there existed a long standing enmity between the parties; that even before the date of occurrence, a-3 was carrying on his unlawful acts of dumping the excavated earth; that on the very date of occurrence, he continued to do the same, which was objected to by P. W. 1 and his father P. W. 6; that the deceased and P. W. 7 have questioned the atrocious conduct of A-3; that at that time A-1 and A-2 joined A-3 in the commission of the crime; that it was A-3, who first attacked the deceased with a stick, and following him, A-2 attacked the deceased with a stick on his shoulder, and in that course, the deceased sustained simple injuries; that A-1 immediately ran to his field situated nearby and brought a spade; that A-1 attacked the deceased on his head with the spade, when A-2 and A-3 facilitated the crime by catching hold of him; that the injured was taken to the hospital; that originally a case was registered under S. 307 of IP C against the accused, and on his death, it was converted to one under S. 302 of IP C ; that P. W. 5, the Doctor, who conducted the autopsy has clearly opined that the deceased would appear to have died of shock and haemorrhag e and damage to brain, and thus, the medical evidence was in support of the ocular evidence; that there was no delay in the information to the Police, since immediately after the occurrence, one of the witnesses went to Vaiyampatti situated 15 kilometers away from the scene of occurrence, hired a taxi of P. W. 10, brought it to the place of occurrence, took the injured directly to the Government Hospital Manapparai , and therefrom to Trichy , where the police people on information went over and got the information of P. W. 1; that it was quite reasonable on the part of the prosecution witnesses to proceed directly to the hospital to save the seriously injured victim, and thus, there was no delay in the information; that it is not correct on the part of the appellants'side to state that no injury was found on the shoulder of the deceased, and hence, there was nothing to indicate that A-2 attacked him with a stick, and thus all the eyewitnesses have given false evidence, and therefore, it has got to be rejected; that that the evidence of the postmortem Doctor and the description of external injuries in the postmortem certificate would be sufficient to reject the said contentions; that both in the rough sketch and observation mahazar , the place of occurrence has been clearly pointed out, which leaves no doubt about the place of occurrence; that all the eyewitnesses have narrated the occurrence consistently and have given cogent evidence; that there are no merits in the appeal, and hence, the appeal has got to be dismissed. Admittedly, P. Ws. 1, 6 and 7, the deceased and the appellants/a-1 to A-3 belonged to the same village. It is also not in dispute that the accused had their lands situate on the north of Kallupatti Elamanam east-west Road, while the fields of the deceased and P. Ws. 1 and 6 were situate on the southern side of that Road. The contents of Ex. P7 observation mahazar and Ex. P15 rough sketch prepared at the time of inspection by the Investigation Officer are not disputed. The river vari is situate on the southern part of the said Road, abutting the lands of the said prosecution witnesses and the deceased. According to the witnesses, even two years before the occurrence, A-1 and A-2 who had their lands on the northern side of the Road dug a well in their field and dumped the excavated earth on the side of the river vari , and consequently, the fields of the witnesses were damaged during rainy season. Even a few days prior to the occurrence also, despite objections, A-3 dumped the excavated earth nearby the lands of P. W. 1. , and on the date of occurrence, a-3 continued the said unlawful acts. When A-3 was questioned by P. Ws. 1 and 6, the deceased and P. W. 7 joined with them. A-2 and A- 2 who were nearby, came to the support of A-3. Thus, from the evidence of P. Ws. 1, 6 and 7, it would be crystal clear that there existed previous enmity between the parties, and the accused had sufficient motive to indulge in criminal acts of attacking the deceased. ;