- (1.) 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. 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, 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. 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. 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. We have heard learned Additional Public Prosecutor upon the said submissions. We have given our consideration to the submissions made by learned counsel for the parties.
(3.) 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. 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. 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 ). ;