K.N. Basha, J. - (1.) THE challenge in this appeal is to the Judgment dated 26.04.2007 of the Learned Principal Sessions Judge, Vellore, made in SC.No.147/2004 convicting the appellant/A-1 for the offence under section 302 IPC and sentencing him to undergo life imprisonment.
(2.) THERE are three accused, viz., A-1 to A-3. Learned Trial Judge disbelieved the prosecution case in respect of A-2 and A-3 and acquitted them for the charges framed against them. The factual scenario as unfolded during the course of trial is as follows:- [a]P.W.1 is the brother of the deceased Balasundraram. A-1 and A-2 are the uncles of P.W.1. A-3 is the daughter of A-2. P.W.1 was cultivating the land of his uncle one Lakshmanan. The accused 1 to 3 were having land adjacent to that land and they were cultivating their land. Fifteen days prior to the occurrence, A-2's hen grazed in the field where P.W.1 was cultivating which resulted in dispute and there were strained feelings between the two families. [b] On the fateful day of occurrence, i.e., 27.07.2003, at 7.15 a.m., the deceased was rolling Beedi. P.Ws.2 to 4 were also making Beedis along with the deceased. P.W.1 went there at 7.15 a.m. to bring his brother, the deceased for breakfast. At that time, A-3 instigated A-1 to attack the deceased. A-2 kicked the deceased on his back. The deceased fell down. A-1 beat the deceased on his neck with the causarina stick. P.W.1 chased the accused 1 to 3 and they ran away from the scene with the weapon causarina stick. P.W.1 informed about the occurrence to his uncle, the said Lakshmanan over the phone and he brought a car to the scene of occurrence. Immediately, they took the deceased to CMC Hospital, Vellore where they were directed to take the deceased to the Government Hospital, Vellore. At 11.50 a.m. they went to the Government Hospital, Vellore. [c] The doctor, P.W.8, attached to the Emergency Ward, CMC Hospital, Vellore, examined the deceased at 8.35 a.m. on 27.07.2003 and issued Ex.P.6-Accident Register wherein he found 4cm laceration in the right occipital region and he found no bone fracture or brain matter seen and no long bone injury. He discharged the deceased at the request of his relatives. [d] The doctor, P.W.12, attached to Government Hospital, Vellore, examined the deceased at 11.50 a.m. On examination, he declared that the deceased had already died. Ex.P.15 is the Accident Register given by him in which he has mentioned about the death of the deceased. [e] P.W.1 went to Pallikonda Police Station on 27.07.2003 at 12.30 p.m. and gave a written report, Ex.P.2 to P.W.13, the Inspector of Police. He registered a case in Crime No.139/2003 for the offence under section 302 IPC. Ex.P.16 is the First Information Report. He sent the same to the Court concerned and to the higher officials. [f] P.W.13, the Inspector of Police took up the investigation and went to the scene of occurrence and prepared Ex.P.2-Observation Mahazar and Ex.P.17-Rough sketch in the presence of P.W.6 and another. He also recovered M.O.2-blood-stained earth, M.O.3-sample earth, M.O.4-blood stained towel from the scene under Ex.P.3. He went to the hospital and held inquest on the dead body of the deceased from 2.30 p.m. to 4.30 p.m. Ex.P.18 is the Inquest Report. During inquest he has examined P.Ws.1,2,4,5 and others and recorded their statements. He has sent the body for Post-Mortem. [g] Dr. Rajavelu, P.W.9, attached to Government Hospital, Vellore, conducted Post-Mortem on the dead body of the deceased on 27.07.2003 at 4.45 p.m. He found the following injuries:- External Examinations:- 1] A lacerated wound about 7 cms in length over the right occipital region of scalp. 2] Contusion about 4cmx3cm over the right parietal region of the scalp. 3] Contusion about 3cmx2cm over the back of the neck. 4] Bleeding from the nose and ear seen in the right and left side." Ex.P.8 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died due to head injury about 4 to 10 hours prior to postmortem. [h] P.W.13, the Investigating Officer, in continuation of his investigation, recovered blood stained clothes of the deceased, viz., M.O.5-dhothi and M.O.6-Baniyan under Ex.P.9. He searched for the accused on 28.07.2003 and arrested accused 1 to 3 at 2.00 p.m. on the same day in the presence of P.W.7. In pursuance of the admissible portion of the confession under Ex.P.4, he recovered M.O.1-stick produced by A-2 under Ex.P.5. The accused 1 to 3 were remanded to judicial custody through the Court. He sent the material objects for chemical examination as per requisition Ex.P.10 through Court. He examined P.Ws.6, 7 and others. He examined the doctors P.Ws.8,9, and 12 and recorded their statements. He received Ex.P.8-Postmortem certificate, Ex.P.12-Biologist Report and Ex.P.14-Serologist Report and after completion of investigation, filed the charge sheet against the accused on 28.08.2003 for the offence under section 302,323 read with 114 and 34 IPC. The prosecution in order to bring home, the charges against the accused, examined P.Ws.1 to 13, filed Exs.P.1 to 18 beside marking M.Os.1 to 6.
(3.) WHEN the accused were questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against them, all the accused have come forward with the version of total denial and stated that they have been falsely implicated in the case. They have not chosen to examine any witness or mark any document on their side. Mr. V. Gopinath, learned Senior counsel appearing for the appellant contended that the prosecution has not proved its case by adducing clear and cogent evidence. It is contended that out of P.Ws.1 to 5, P.Ws.2 to 4 turned hostile and they have not supported the prosecution case. It is also contended that there are contradictions between the evidence of the eyewitnesses P.Ws.1 and 5 in respect of the manner of occurrence said to have taken place. Learned Senior Counsel would further contend that eyewitnesses P.Ws.1 as well as 5 stated that A-1 beat the deceased on his neck. But the doctor, P.W.9 has opined that only head injury is fatal and as such, the evidence of the eyewitnesses P.Ws.1 and 5 is falsified by the medical evidence. Learned Senior Counsel, without prejudice to his earlier contention, also contended that even assuming that A-1 beat the deceased on his neck or head, he could not have been imputed with the intention to cause the death of the deceased as he used only M.O.1-stick and further as per the version of P.Ws.1 and 5, he is said to have dealt with only a single blow.;