Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of the learned Single Judge of the Madras High Court setting aside the judgment of acquittal recorded by learned Principal Assistant Sessions Judge, Tirunelveli. The appellant faced trial along with one Velliah for alleged commission of offences punishable under Section 307 and 307 read with Section 109 of the Indian Penal Code, 1860 (in short 'IPC'). Though the trial Court found that the prosecution has not established the case, in appeal filed by the State it was held by the High Court that the prosecution established the accusations against the appellants. But the acquittal so far as the Velliah A3 is concerned, the High Court confirmed the acquittal.
(2.) Background facts in a nutshell are as follows : Sankaralingam (PW1), Ramaiah (PW2) and Paramasivam (PW6) are brothers. They reside at Marugal Kurichi village. Accused 1 to 3 are also residing in the same village. Their house is situated very near to the house of PWs. 1, 2 and 6. Accused 1 and 2 are brothers. On 2-10-1989 at about 5.00 p.m. Kannammal, the mother of PWs. 1 and 2 went to the corner of the street to collect water from the common water pipe. The third accused's wife Manickam also came to take water. While collecting water from the common pipe, there was a quarrel between Kannammal and Manickam, the wife of third accused. Ramaiah (PW 2) who noticed this, went there and separated them and took his mother to his house. Next day i.e. 3-10-1989 at about 7.30 a.m. Ramaiah (PW.2), Sankaralingam (PW. 1) and one Manickam, wife of another brother, went to the well, which is situated in Nallakannau Thevar's garden, in order to take bath. When the first accused came to know about the occurrence which took place on the earlier day, he had grievance against PW.2 thinking that PW.2 abused the wife of the third respondent in support of his mother. At about 7.30 a.m. when PWs. 1 and 2 and another went near the well, A1 to A3 waylaid them. A1 and A2 were having 'Aruval' with them. A3 caught hold of PW.2 from behind his back. At that time, A1 and A2 with 'Aruval' attacked PW.2 indiscriminately on the back, left shoulder, right shoulder, hands, etc. PW.2 received number of bleeding injuries all over the body and began to cry. Sankaralingam (PW. 1) and Poolu Thevar (PW. 5) and two others went near the injured. The accused persons threatened them that they would kill them also. PW.2 swooned and fell on the ground. Thereafter, the accused took to their heels. PWs. 1 and 5 took the victim in a car to Naguneri Government Hospital at about 8.30 a.m. Dr. Andiappan (PW.3) examined the victim and found nine injuries. He also sent Ex. P-2 intimation to the Nanguneri Police Station. Head Constable (PW.7) came and recorded statement from PW.1. Ex.P-1 is the complaint and the same was registered against the accused for the offences under Sections 341, 342 and 307 IPC. Ex.P-7 is the printed FIR. Doctor (PW.3) sent the victim to the Tirunelveli Hospital for further treatment. He issued Ex.P-3 wound certificate. Doctor (PW.4) took X-Ray and issued Ex.P-4 X-Ray report and the X-Rays were marked as M.Os. 3 to 9. Ghana Diraviyam (PW.8), the Inspector of Police, took up further investigation and went to the scene and examined the witnesses. He prepared Ex.P-5 observation mahazar and Ex.P-8 rough sketch. He also recovered sample earth and blood stained earth. Thereafter, he went to the hospital and recorded the statement from PW.2. Since the PW.8 was subsequently transferred, Periasamy (PW.9) another Inspector of Police, took up further investigation.
(3.) After completion of investigation charge sheet was filed and the accused persons faced trial as they denied the accusations. Nine witnesses were examined to further the prosecution version. Trial court found the evidence of prosecution witnesses to be not cogent and credible and accordingly directed acquittal. State preferred appeal against acquittal. High Court found that the reasoning indicated by the Trial Court to direct the acquittal cannot be maintained. It is to be noted that the acquittal was directed by the Trial Court, inter alia, on the following grounds : (i) Recording of Ex.P-1 statement given by PW.1 by PW.7 is doubtful. According to PW.3 Doctor, the injured was conscious, when he was admitted in the hospital. PWs. 1 and 7 would state that the complaint was given by PW. 1 which was recorded by PW.7, since PW.2 was unconscious. There is no reason as to why PW.7 had to obtain Ex.P-1 complaint from PW. 1, when PW.2 was conscious. (ii) PW. 1 could not have seen the occurrence. PW.5, an independent eye witness, would state that PW. 1 came to the scene only after the occurrence. Therefore, the evidence of PW. 1 is unreliable. (iii) PW.6 stated in the court that he had also seen the occurrence. According to PW.8, the investigating officer, PW.6 was not the eye-witness and he did not give any statement that he saw the occurrence. Therefore, the evidence of PW.6 is unreliable. (iv) PW.7 head constable recorded Ex.P-1 and the same was written by him. But, in evidence, he would state that he dictated to a constable and the said constable had written the same. There is no evidence to show that any constable accompanied PW.7. Therefore PW.7 had not recorded Ex.P-1 at the hospital. (v) PW.5 an independent witness, would state that A1 and A2 alone were present and attacked PW.2. He did not refer about A3. Therefore, A3 could not have been present. Furthermore, A3 produced a certificate along with his statement under Section 313 Cr.P.C. to show that during the relevant time, he was working in the mill in which he was employed. (vi) Both in Ex.P-1 and in the evidence of PWs. 1 and 2, there is a reference about one Thangapandi stating that he was also one of the eye-witnesses. The said eye-witness was not examined. There is no reason for his non-examination. (vii) According to PWs.1 and 2, both A1 and A2 attacked PW.2 indiscriminately. But according to PW.5, after first cut, PW.2 ran to a distance of about 50 feet and thereafter, the further cuts given by the accused with 'Aruval" fell on PW.2 victim. So, there is a contradiction between the evidence of PWs.1 and 2 on the one side and the evidence of PW.5 on the other side.;