N.L.UNTWALIA - (1.) CRIMINAL Appeal No. 251 of 1972 has been filed under Section 2 of the Supreme Court (Enlargement of CRIMINAL Appellate Jurisdiction) Act, 1970 and CRIMINAL Appeal No. 243 of 1973 is by special leave. In all there are six appellants. It would be convenient to refer to them with reference to their accused number given in the judgment of the Sessions Court. They are as follows: JUDGEMENT_779_3_1976Html1.htm
(2.) THE occurrence giving rise to these two appeals took place on Monday the 21/04/1971 at about 4.00 p.m. at Sivan Koli tank in village Thaduthalkondapuram. In the said occurrence was seriously injured one Kaliaperumal who later died in the Hospital at about 9.00 p.m. the same evening. Another person injured in the occurrence was also named Kaliaperumal, Prosecution witness 1. THE prosecution case is that deceased Kaliaperumal was living with his maternal uncle Pichai Konar, Prosecution witness 7 since infancy. A-1 is the Karnam of the village and A-6 is the Government vetti. A-2 and A-3 are brothers. A-4, A-5 and A-6 are also inter se brothers. A-2 to A-6 worked under A-1. THEre was enmity between Prosecution witness 7 and the deceased on the one hand and A-1 on the other on account of several causes. THE facts showing the enmity between them are stated in the judgments of the courts below and are not necessary to be detailed here. Two days prior to the occurrence Marimuthu, P.W. 10 was driving some cattle, 4 or 5 of them went astray and entered into the Gingilli Kollai (field) belonging to A-1. A-1's men scolded Prosecution witness 10 and the deceased who was informed about the incident by the former at a tea shop. Prosecution witness 1 was also present there. Deceased Kaliaperumal passed on the information to Prosecution witness 7. Ramalingam, Prosecution witness 4 brother of the deceased was taking his bath in the Sivan Koli tank. Kaliaperumal (deceased) also came there saying something against the Karnam. He also started bathing at the northwestern corner of the tank. According to the prosecution case, A-1 came there followed by A-2 to A-6. A-2 had a cross-stop (an instrument used in Survey and measurement, perhaps the correct name of the instrument is cross-staff). A-3 and A-4 were each armed with an Aruval. A-5 had a stick and A-6 was carrying a stick with a spear attached to it. According to the evidence in Court. A-1 told the other accused ''not content to with grazing (his) cattle in my gingilly field, he is also abusing me. Cut him, whatever be the expenses. I will look after that.'' Thereupon A-4 asked the deceased Kaliaperumal ''Why are you abusing the 'Iyar'?'' Saying something Kaliaperumal ascended the bank. A-3 and A-4 assaulted him on his head with Aruvals. Prosecution witness ran to separate them when A-2 assaulted him on his head with the cross-staff. Prosecution witness 1 attempted to run. Thereupon it is said A-6 obstructed him from running with the help of the stick with spear head. A-4 again cut on the head of Kaliaperumal (deceased) with his Aruwal. A-2 beat on P. W.'s head with the cross-staff four or five times. Prosecution witness 1 fell down unconscious. Prosecution witness 7 and others took the injured to the Government Dispensary Kodavasal. Dr. Radha Singh, Civil Assistant Surgeon. Prosecution witness 15 examined Kailaperumal deceased at 4.55 p.m. and issued a Wound Certificate. Since his condition was serious he was sent to the Government Hospital, Kumbakonam. Prosecution witness 15 examined the injuries at Prosecution witness 1 at 5.20 p.m. and found as many as nine injuries on his person. As already stated Kaliaperumal died at about 9.00 p.m. Dr. N. Jayaraj, Prosecution witness 18 performed the autopsy over the dead body. As many as 14 injuries were found. The injuries given on the head with Aruval according to the opinions of the Doctors were sufficient in the ordinary course of nature to cause his death. Various charges were framed against the six accused including that of rioting under Section 147, Indian Penal Code against A-1 and A-5 and Section 148 against A-2, A-3, A-4 and A-5. A-1 was further charged under Sections 302/149 and Sections 302/109. A-2 to A-6 were charged under Section 302. An extra charge under Section 324 was levelled against A-2 for causing simple hurt to Prosecution witness 1 with the cross-staff, an instrument which had sharp edges. A-6 was also charged under section 341 of the Penal Code for preventing Prosecution witness 1 from escaping. The accused denied their complicity in the occurrence and pleaded not guilty. A-1 took a plea of alibi also and asserted that he had gone to Madras in connection with some marriage negotiations. Two days after the date of occurrence he was arrested at Kumbakonam Railway Station when he alighted from the train on his return from Madras. The trial Judge acquitted A-1, A-5 and A-6 of all the charges. He convicted A-3 and A-4 under Section 302 of the Penal Code and awarded a sentence of life imprisonment to each of them. They were acquitted of the charge under section 148. A-2 was convicted only under Section 324 with sentence of 4 months' rigorous imprisonment and acquitted of all other charges.
(3.) A-2, A-3 and A-4 preferred an appeal in the Madras High Court against their conviction and the sentences imposed upon them by the trial Court. State preferred an appeal against the acquittals of A-1, A-5 and A-6 as also against the acquittal of A-2 of the charge under Section 302. It, however, did not prefer any appeal against the acquittal of A-2. A-3 and A-4 of the charge under Section 148 of the Penal Code. Yet it is surprising to find that the High Court has convicted all the six accused for the offences of rioting. A-1 and A-5 under Section 147 with two years' rigorous imprisonment and A-2, A-3, A-4 and A-6 u/s 148 with 3 years' rigorous imprisonment. Conviction of A-3 & A-4 for the offence of murder under Section 302 has been maintained with the aid of Section 34. High Court has also convicted A-2, A-5 and A-6 under Sections 302/34 and awarded each of them life imprisonment A-1 has been convicted by the High Court under Sections 302/149 and 302/109 with sentence of life imprisonment under each. Conviction of A-2 under Section 324 has been maintained. Hence these two appeals. That there was enmity and bad blood between A-1 and Prosecution witness 7 is not open to any doubt. An occurrence did take place on the date, time and place as given by the prosecution. The manner of occurrence in so far as it relates to the attack on the deceased is concerned by A-2 and A-3 has also been proved to the hilt. The factum of assault by A-2 on Prosecution witness 1 also does not admit of any doubt. But the High Court does not seem to be justified in reversing the order of acquittal recorded by the trial Court in favour of A-1, A-5 and A-6.;