Arumugam and Sakthi @ Sakthivel vs State

R. Subbiah, J.—The appellants, who were arrayed as the accused 1 and 6 along with four others arrayed as the accused 2 to 5 (since

acquitted) took their trial in S.C. No. 84 of 2001 on the file of the II Additional District and Sessions Judge, Tiruchy on the charges levelled against

them on the allegations that all the accused armed with deadly weapons formed themselves into an unlawful assembly and in furtherance of the

common intention of murdering the deceased Sankar indiscriminately cut the deceased on 4.2.2000 at Peria Sooriyur, which resulted in his death.

The charges framed against the accused are as follows: Charge No. 1: Against the accused 1 and 3 to 6 u/s 148 I.P.C., for having formed

themselves into an unlawful assembly. Charge No. 2: Against the 2nd accused u/s 147 IPC., for having been a member of the rioting. Charge No.

3: Against A1 to A6 u/s 302 red with Section 34 I.P.C., for having attacked the deceased with common intention to murder the deceased. Charge

No. 4: Against A2 u/s 114 read with Section 302 I.P.C., for having abetted the commission of the offence. Among the accused the

appellants/accused 1 and 6 herein alone are convicted u/s 302 read with Section 34 I.P.C. and sentenced to undergo imprisonment for life and to

pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for six months each and the accused 2 to 5 are found not guilty and

consequently acquitted. As against the conviction and sentence passed by the court below the accused have come up with the present appeal.

The prosecution, in order to substantiate its case, examined PWs-1 to 12, marked Exs.P1 to P20 and produced MOs-1 to 10. Neither oral nor

documentary evidence has been let in on the side of the defence.

The prosecution case, as put-forth by its witnesses, is concisely narrated below:

i) P.W.1 and the deceased are brothers, being the sons of P.W-4. They were living in the village, namely Sooriyur. In every year, during the Tamil

month Markhazhi.i.e. covering the period from 15th December to 15th January , there used to be a festival known as ''Manju Virattu'' or ''Jalli

Kattu'' in which mostly the youngsters would prove their valour by taming the animals. It is like a game of bravery. The bullocks of the local village

and those brought from other villages would be confined in an enclosure and there would be let out one after another to be tamed by the

youngsters. As usual, in January,2000, the festival was conducted. The 1st accused brought his bullock and it was let in the arena. The deceased

Sankar, who was one of the participants tamed the bullock of A-1and own the prize. On account of this, A-1 and the other accused belonging to

the same group got annoyed, and in fact A-1 questioned the deceased Sankar as to how he could dare to overpower his bullock. Ever since, a

simmering feeling emerged between the accused and the deceased. Aggrieved over this incident, about 12 days prior to the date of occurrence of

murder of Sankar, these six accused picked up a quarrel and attacked the deceased. While their feeling stood at a boiling point, on 4.2.2000, at

about 10.30 AM when the deceased was found proceeding near Mamundi Temple, all the six accused armed with deadly weapons 1.e., aruvals,

indiscriminately cut the deceased and as a result Sankar became unconscious and fell down on the spot. Immediately all the accused fled away

from the place of occurrence with weapons. Thereafter P.W-1, the brother of the deceased, who witnessed the occurrence, brought the deceased

to their house and then arranged for a taxi, took him to the Government Hospital, Trichy and admitted at 1.30 P.M. as in-patient. But, he

succumbed to the injuries within half an hour of the time of admission.

ii) PW-9, the Sub Inspector of Police, has stated that, on receipt of the death intimation proceeded to the Government Hospital, Trichy at 14.15

hours and recorded the statement from P.W.1, who is the brother of the deceased under Ex.P.1, returned back to the police Station and

registered F.I.R. under Ex.P.9 in Crime No. 20/2000 for the offences punishable under Sections 147, 148, 341 and 302 IPC and forwarded the

same to the court along with a copy of the F.I.R. through a Head Constable. He also sent copies thereof to the Inspector of Police and other

superior officers.

iii) P.W.12, the Investigating Officer, on receipt of the First Information Report, took up investigation and at 4.00 P.M., proceeded to the scene of

occurrence and, in the presence of PW-6/VAO and one Arumugam, prepared an observation mahazar Ex.P.3 and rough sketch Ex.P.16 and

recovered bloodstained earth and sample earth and recovered bloodstained lungi and towel M.Os.6 and 7 respectively of the deceased under

cover of a Mahazar Ex.P.17. On the same day, he conducted inquest over the body of the deceased at 5.00 P.M. in the presence of

panchayatdars and recorded the statement of P.W.5 and one Sivasankar and sent the body for post mortem through Head Constable No. 205.

The inquest report is marked as Ex.P-18.

iv) PW-11 is the Doctor, who, on receipt of the requisition from the Investigating Officer, conducted the post-mortem on the body of the deceased

on 05.02.2000 at 10.30 A.M. Ex.P-15 is the Post Mortem certificate wherein the Doctor has noted the following injuries and the other symptoms:

Injuries: 1. A transverse incised wound 4cmx1.5cmxmuscle deep on the front of middle third of right forearm.

An oblique incised wound 3.5cmx1cmxbone deep on the palmar aspect of distal two third of right little finger. O/E, the tendons, blood vessels,

nerves, the middle and terminal phalangeal bones are partially cut.

A transverse sutured wound 5cm in length on the left side of face, starting from the angle of the mouth. On removal of the sutures the edges

clean cut 1 cm in breadth, communicates into the oral cavity.

A transverse chop wound, 9cmx4cm exposing the underlying structures on the back of upper third of left forearm, 4 cm below the elbow joint

with marginal bruising dark red. O/E, the edges are clean cut. The underlying tendons, muscles, blood vessels, nerves are found completely cut.

Diffusion of blood into the surrounding tissues present. The portion of the left forearm distal to the wound is found attached by the skin on the front

aspect.

A transversely oblique incised stab wound, 1cmx2cm entering into the pelvic cavity on the lower inner quadrant of left buttock, crossing the

midline and extends upto 3 cm into the lower inner quadrant of right buttock. O/E, the edges, clean cut. Both ends of the wound acute. Further,

examination, the soft tissues, muscles, blood vessels, nerves are found clean cut. The terminal part of the coccypeal vertebra is found completely

cut (cut fracture). The blood is found fissures into the tissues in the vicinity. The wound is directed, forwards, inwards and slightly upwards minimal

fluid blood collection in the pelvic cavity.

All are antemortem in nature. No other external internal or bony injury present.

Other findings: Pleura and Percicardium intact. Cavity empty. Heart minimal fluid blood. Valves, great vessels normal. Greatvessles - normal.

Lungs c/s pale. Larynx trachea. Hyoid bone intact. Stomach - 100 gms of partially digested food material. No specific smell, mucosa pale. Liver,

Spleen, Kidney c/s pale. Small intestine yellowish chyme. No specific smell. Mucosa pale. Bladder intact, empty. Brain, surface vessels empty.

FSF - clear petechiae present. Spinal cord intact. All other internal organs on c/s pale.

The Doctor has opined that the deceased would appear to have died of shock and hemorrhage due to injury Nos. 4 and 5.

v) On 06.2.2000, the Investigating Officer arrested the 6th accused viz., Sakthi @ Sakthivel in the presence of PW-7 and other witnesses.

Subsequent to the arrest, the accused made a voluntary confession statement, the admissible portion of which is marked as Ex.P-19. The accused

produced the weapons of offence MOs-1 to 5 and the same were recovered under Ex.P-20. The material objects were despatched to the court

with Ex.P-10 requesting to forward the same for chemical examination. PW-10/Head Clerk in the Court, on receipt of the same, sent those items

with a letter of the court under EX.P-11 to the forensic Laboratory. Exs.P-12 and 13 are the forensic reports. On completion of the investigation,

the final report was filed against the accused under Sections 147, 148, 341 and 302, 114 read with Section 302, 149 read with 302 IPC before

court. Ex.P.9 is the First Information Report.

The trial court on a perusal of the documents and after hearing the learned Counsel framed four charges as stated supra. When questioned u/s

313 Cr.P.C. with reference to the incriminating materials adduced by the prosecution against the accused, they denied their complicity in the crime

and pleaded innocence. The learned trial Judge, after assessing the oral and documentary evidence adduced, and after considering the submissions

made on either side, delivered his judgment convicting and sentencing as aforementioned. Challenging the same, the accused have preferred the

present Appeal.

Learned Counsel appearing on behalf of the appellants advanced his submission, stating that though P.Ws.1 to 3 are examined as eye witnesses

to the occurrence, P.Ws.2 and 3 did not support the case of the prosecution and the infirmities found in the evidence of P.W.1 would go to show

that he definitely would not have witnessed the occurrence. Further it is submitted by the learned Counsel for the appellants that though the incident

is said to have taken place at 10.30 am. on 04.02.2000 in the presence of P.W.1, the deceased was taken to Hospital by 1.30 p.m and if really,

had P.W.1 been present in the place of occurrence, the delay of 3 hours would not have occurred in taking the deceased to the hospital especially

in the circumstance, when P.W.1 is the brother of the deceased. Secondly, though P.W.1 had stated in his evidence that he carried his brother

from the scene of occurrence to the house, no bloodstained shirt of PW 1 was seized by the Investigating Officer. So far as P.W.4, the mother of

the deceased is concerned, she is not an eye witness to the occurrence and was examined mainly for the purpose of speaking the motive part of

the case of the prosecution. Since she is not an eye witness to the occurrence, her evidence a part of which is hearsay in nature cannot be

construed as a direct piece of evidence corroborating that of P.W.1 who is said to have witnessed the occurrence. Learned Counsel for the

appellants further submitted that though P.W.1 had stated in Ex.P.1 attributing specific over acts against each of the accused, in his chief

examination, he did not explain the over acts of each accused. In this regard, learned Counsel drew the attention of this Court to Ex.P.1 and chief

examination by P.W.1 and submitted that there are vital contradictions in describing the over acts caused by each accused on the deceased.

The learned defence counsel in his argument, submitting that in Ex.P-1 it has been stated by P.W.1, that A-1 had caused injury at left forearm,

A-4 had caused injury at right forearm, A-5 had caused injury at buttocks, A-3 had caused injury at jaw, A-6 had caused injury at little finger

whereas in his chief examination, he has not stated anything about the over acts attributed to A-6. On going through the evidence of P.W.1, it is

found that a specific overtact was attributed only against A-1 stating that A-1 had caused injury on the left forearm. So far as the other accused are

concerned, P.W.1 did not say anything about the over acts committed by them except merely saying that the deceased was cut by other accused

indiscriminately. Moreover, P.W.11, the medical Officer, who conducted Post Mortem opined that the deceased would appear to have died of

shock and hemorrhage due to injury Nos. 4 and 5. So far as the other injuries are concerned, there is no evidence to that effect as to who caused

the injuries. Further more, there is no evidence to the effect whether the injury is grievous in nature or not. It is further submitted by the defense

counsel P.W.1 is a self interested one and as such, the same could not be believed and the signature of P.W.1 was not found in the inquest

statement. Under such circumstances, the prosecution has miserably failed to establish its case beyond reasonable doubt and hence, the appeal

according to the defense counsel may be allowed.

Per contra, learned Additional Public Prosecutor submitted that the motive part of the prosecution case has been well established through the

evidence of PWs-1 and 4. Though PW-1 is categorised as an interested witness, his evidence stands corroborated by the testimonies of P.W-4

When these eye witnesses have categorically and consistently spoken about the sequence of events, their evidence cannot be so simply brushed

aside due to minor contradictions or omissions therein. It is further submitted that in Ex.P.8, Accident Register it is clearly stated by the deceased

that he was assaulted by 6 known persons armed with aruvals. With regard to the injuries caused to the deceased in Ex.P.15 Post Mortem

Certificate tallies with the injuries mentioned in Ex.P.1. Though, P.Ws.1 to 3 were examined as eye witnesses, P.Ws.2 and 3 turned hostile and

they did not support the case of the prosecution. However, the evidence of P.W.1 is cogent and consistent with Ex.P.1. Since, merely he

happened to be the brother of the deceased his evidence cannot be rejected. The injury No. 4 mentioned in the Post Mortem Certificate Ex.P.15

tallies with the overtact spoken to by P.W.1 as against the first appellant herein. Under such circumstances, no infirmity can be found out on the

conviction and sentence passed by the trial Court.

We have given our thoughtful consideration to the rival submissions made on either side and perused the materials available on record.

P.W-1 is the own brother of the deceased and he is the eye witness in the case. PW.4, is the mother of the deceased and P.W.1 who speak

about the motive part of the prosecution case. A major part of P.W.4 is testimony in hearsay P.W.s 2 and 3 examined as eye witnesses in the

case, have not supported to any part of the prosecution case and they have turned hostile.

The submission of the learned Counsel for the appellants that had P.W.1 been present in the place of occurrence, the delay of three hours

would not have occurred in admitting the victim Sankar in the hospital which delay would go to show that P.W.1 would not have been present at

the scene of occurrence, cannot be accepted in toto for the reason that a perusal of Ex.P.1 reveals that immediately after the perpetuation of the

attack on victim Sankar he was brought to his house and a car was arranged from Tiruvarumbur and thereafter, the deceased was taken to the

hospital in the said car and was admitted in the hospital at 1.20 p.m. The said statement made in Ex.P.1 clearly explains the doubt raised by the

learned Counsel for the appellants. Therefore, we do not have any valid reason to doubt the presence of P.W.1 at the place of occurrence.

Moreover, in Ex.P.8, Accident Register it is clearly recorded by the medical-officer at the time of admission that the victim was brought to the

hospital by Murugesan viz., P.W.1 and that the victim stated that he was attacked by 6 known persons armed with aruvals. Under these

circumstances the doubt raised regarding the presence of P.W.1 does not assume much significance.

Further, the evidence of P.W.1 and P.W.4 would go to show that the prosecution has proved the presence of P.W.1 at the scene of

occurrence and the probability of P.W.1 witnessing the attack, even if not the entirety. However, as pointed by the learned Counsel for the

appellants that, P.W.1 in his chief examination did not attribute any overtact against each of the accused though it is found in EX.P.1 attributing the

over acts against each of the accused in Ex.P.1. P.W.11, the Medical Officer who conducted Post Mortem opined that the deceased would

appear to have died of shock and hemorrhage due to the injury Nos. 4 and 5. In the absence of any overtact against A-6, the 2nd appellant herein,

he is entitled for the benefit of doubt since the death was caused due to the assault made by all the accused collectively. The Trial Court has

observed in paragraph 25 of its judgment that it cannot be precisely conclude which accused caused which injury at which place especially when

several persons were involved in the occurrence. It may not be possible to say in respect of any injury whether that injury was caused by one or

two persons. In Paragraph 31 of its judgment, it is stated thus ""In respect of accused Nos. 3, 4 and 5, there is no corroborative piece of evidence"".

In paragraph 32 of the judgment a decision is given by the lower court that ""accused 2, 3, 4 and 5 are acquitted of the charges and they are

ordered to be set at liberty forth with"". Thereafter observing that PW.1''s evidence is corroborated from independent sources with regard to the

overtact of accused Nos. 1 and 6, namely, Appellants 1 and 2, they were found guilty. After going through the judgments of the courts below and

documents on record, it is found that there is absolutely no acceptable corroborative piece of evidence as against the 6th accused, who is the 2nd

Appellant herein. Therefore, the same reasoning given by the court below for the acquittal of accused Nos. 3, 4 and 5 should have been made

equally applicable in the case of 6th accused (2nd Appellant). In fact, in the present case, there is no specific co-relation of the injuries in relation to

the accused, which is pointed out by the Trial Court as being the main reason for acquitting A2 to A5. Therefore, when there is no co-relation of

evidence to induct 2nd appellant/A6, we cannot assume or infer as to which injury has been caused by 2nd Appellant/A6 as stated supra,

especially when the prosecution''s case is that the deceased was indiscriminately attacked by six persons. Though such a reason is not a convicting

one in the present case, the State has not preferred any appeal against the acquittal in respect of other accused 2 to 5 but seems to have been

satisfied with the conviction of appellants 1 and 2/A1 and A6. However, we find that there is a significant contradiction giving a death blow to the

case with reference to A6. In Ex.P-1, PW.1 has stated that 2nd Appellant/A6 caused a cut injury, an incised one over the tip of the right hand little

finger whereas PW.1 in his evidence has stated that A4 - Balu and A3 - Kadarvelu cut on the head and back portion of the leg. This injury is said

to have been inflicted by A6 on the little finger corresponding to injury No. 4 noted down in the Accident Register Exh.P8, which probably

corresponds to injury No. 2 found in Exh.P15 (Post Mortem Certificate). This contradiction falsifies the case of PW.1 in attributing the specific

injury to 2nd Appellant/A6. Though PW.1 has given the name of A3 as Sakthivel, the real name of A3 is not Sakthivel but Vijayakumar @

Kumar. This error in mentioning Sakthivel as A3 is yet another flaw affecting the testimony of P.W.1. Under these circumstances we are of the

opinion that the conviction of the 2nd Appellant/6th accused before the Trial Court u/s 302 read with 34 IPC and the sentence of imprisonment for

life besides the imposition of fine of Rs. 5,000/- with default clause imposed on the 2nd Appellant by the court below are liable to be set aside.

Accordingly, the 2nd Appellant is acquitted of all the charges and the fine amount if already paid is directed to be refunded to him.

Now coming to the case of the first appellant before the trial Court, he is said to have caused cut injury on the left forearm of the deceased.

P.W.1 had also spoken to about this overt act attributed by the first accused/appellant. His evidence is in total correlation to the narration made in

the First Information Report. With regard to the injury spoken to by P.W.1 is also in total correlation to the First Information Report and this tallies

with injury No. 4 mentioned in Post-mortem certificate Ex.P.15. P.W.11, the Doctor had also clearly stated in his evidence that injury Nos. 4 and

5 mentioned in Ex.P.15 are fatal injuries which had caused the death of the deceased. P.W.8 the Doctor who had issued the wound certificate had

also referred the injury which was caused to the deceased by P.W.1 as injury No. 1 in the wound certificate. The evidence of P.W.1, P.W.8 and

P.W.11 and the versions found in Ex.P.1 and P.!5 goes to prove that the death of the deceased was caused due to the cut injury delivered by first

accused/first appellant on the left fore arm of the deceased. But the learned Counsel for the appellants while making his submissions also

contended that there was no intention on the part of the first appellant to cause the death of the deceased and he has further submitted that the

circumstances would show his intention only to cause the injury.

Per contra, the learned Additional Public Prosecutor submitted that the evidence of P.W.1 would reveal that the deceased was chased and

attacked. Under such circumstances, it cannot be said that there was no intention of committing murder on the part of P.W.1. In our opinion as

stated supra, the evidence of P.Ws.1, 10, 8 and the versions found in Ex.P.15 the wound certificate clearly establish the case as against the first

appellant.

In the result, the Criminal Appeal is partly allowed in the following manner.

i) As far as the first appellant/first accused is concerned, conviction and sentence passed by II Additional District and Sessions Judge, Trichy in

Sessions Case No. 84 of 2001 are confirmed.

ii) As far as the second appellant/sixth accused is concerned, the conviction and sentence are set aside and he is acquitted of the charges.

It is reported that the 1st Appellant-accused is on bail. The learned Sessions Judge concerned is directed to take steps to secure the presence

of the accused and commit him to prison to undergo the remaining period of sentence.