Ramar, Perumal Gounder, Veluchamy and Shenbaga Gounder vs The State

M. Chockalingam, J.—The appellants herein/accused Nos. 1 to 4, who stood charged, tried by the Court of Sessions, Tuticorin for the

offences u/s 302 IPC for A1 and 302 r/w 34 for accused Nos. 2 to 4, and A1 was found guilty u/s 304(1) IPC and sentenced to undergo R.I for

9 years and to pay a fine of Rs.500/- in default to undergo RI for 3 months and accused Nos. 2 to 4 were found guilty u/s 304(1) r/w 34 IPC and

sentenced to undergo R.I for 5 years and to pay a fine of Rs.300/- each in default to undergo RI for 2 months, have brought forth this appeal.

The short facts necessary for the disposal of this appeal can be stated thus:

a) The deceased Ponnusamy Gounder was the husband of P.W.1 Muthulakshmi and father of P.W.2 Perumalsamy and P.W.5 Solaiperumal. The

deceased was running a tea stall at K. Duraisamipuram. The first accused is the son of the second accused, while the accused Nos. 3 and 4 were

their close associates. They were all belonged to the same village.

b) On 15.1.1991 at about 9.00 p.m. Etturaj, the brother of P.W.1 and Murugan, the brother-in-law of P.W.1, PW2 and the first accused were

talking near the tea stall of the deceased. P.W.1 asked them as to what they were talking. They informed her that they were going to Nagalapuram

to see second show cinema. P.W.1 asked them not to go to cinema and to go and sleep in their home. The next day morning at about 8.00 a.m.,

Etturaj, Murugan and PW2 went to their fields. At about 9.00 a.m., the first accused came to the said tea stall and informed the deceased that he

was having Rs.100/- in his trouser pocket and the same was missing. He asked the deceased to enquire the said three persons as to whether they

took the same. When the deceased enquired them, they informed that they never took the same. Again the first accused came and asked the

deceased whether he enquired the above said persons. The deceased informed him that he enquired the said persons and they told him that they

have not taken the same. Immediately, the first accused informed the deceased that the deceased was responsible for the same.

c) On 18.1.1991 at about 11.00 a.m. all the accused came to the tea stall of Ponnusamy Gounder. The first accused asked Ponnusamy Gounder

as to what happened to the said amount. Then Ponnusamy Gounder came out from the tea stall. Immediately, the first accused attacked the

deceased on his left side head with Pannai Aruval M.O.2 stating that he was responsible for the same. Accused Nos. 2 to 4 took velikaruva sticks

that were kept near the tea stall and indiscriminately beat Ponnusamy Gounder. This was witnessed by PW1 and PW5. When they raised alarm,

all the accused fled away from the scene of occurrence.

d) The deceased was taken to Vilathikulam Government Hospital in a bullock cart. On 18.1.1991 at about 11 a.m., P.W.13 Paramasivam, the

then Sub Inspector of Pudur Police Station, on receipt of information from the hospital went to the Hospital. Since Ponnusamy Gounder was

unconscious, P.W.13 recorded the statement of P.W.1, which was marked as Ex.P.1. The deceased was treated by P.W.11 Dr. Paulsamy

attached to the Government Hospital, Vilathikulam. Ex.P.14 is the wound certificate. On the strength of Ex.P.1, P.W.13 registered a case in Cr.

No. 13/91 u/s 307 IPC and prepared Ex.P.17 Express F.I.R. Ex.P.17 was dispatched to the concerned Judicial Magistrate court. On 18.1.1991,

P.W.13 took up further investigation. He proceeded to the site of occurrence, made an inspection and prepared Ex.P.2 observation mahazar in the

presence of the witnesses and Ex.P.18 rough sketch. In the presence of the witnesses on the same day, he recovered MO4 Series blood stained

sample earth and MO5 series sample earth under Ex.P.3. When he came to the Vilathikulam Government Hospital, he was informed that the

deceased was taken to Government Hospital, Tuticorin for further treatment. P.W.13 went to the said Hospital and examined P.Ws.1,2 and 5 and

other witnesses and recorded their statements.

e) On 18.1.1991 at about 10.15 p.m., P.W.10 Sattanathan the then Head Constable attached to Tuticorin South Police Station received intimation

Ex.P.13 from the Government Hospital, Tuticorin that the deceased died in the hospital at 9.30 p.m. On 18.1.1991. P.W.13 has also received the

said information from P.W.10. On receipt of the information, P.W.14 Ramachandran, the Inspector of Police altered the Section 307 IPC into

Section 302 IPC and prepared express report Ex.P.19 and sent the same to the concerned Judicial Magistrate Court. P.W.14 held inquest on the

dead body of Ponnusamy Gounder on 19.1.1991 in the presence of the Panchayatdars and prepared Ex.P.20 inquest report. On his request,

autopsy was conducted on the dead body by P.W.12 Dr. Ramasamy attached to Government hospital, Tuticorin. He issued Ex.P.16 Post-mortem

certificate and the following injuries were found on the dead body:

1) A swelling of size 7 cm x 4 cm at the right side of forehead involving right upper eyelid black in colour. Right upper eyelid swollen.

2) A suture wound in the left side of scalp above the left ear (4 fingers above)

3) Swelling of size 5 cm x 4 cm over left cheek.

4) A linear abrasion of size 8 cm x 1/4 cm skin deep in left side of chest extending downwards and anteriorly.

5) Swelling over right upper arm

6) Abrasion over medial aspect of left leg

7) Abrasion over right wrist clotted blood in left ear.

He opined that the deceased would appear to have died of head injury. The clothes worn by the deceased were recovered from the hospital. The

articles recovered were sent for chemical examination. The Investigating Officer examined the Doctor and completed investigation. He filed a

charge sheet against the accused.

In order to prove the charges levelled against appellants/accused, the prosecution examined 14 witnesses and marked 22 exhibits and 7 M.Os.

After completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 of Cr.P.C. as to the incriminating

circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. Only one document has been marked on the

side of the defence. The trial court, on consideration of the rival submissions made and scrutiny of the materials available, found A1 guilty u/s

304(1) IPC, while A2 to A4 were found guilty u/s 304(1) r/w 34 IPC and sentenced them to undergo imprisonment as stated above. Aggrieved

appellants have brought forth this appeal.

Advancing arguments on behalf of the appellants, the learned counsel made the following submissions:

The prosecution relied on the evidence of Pws.1 and 5, who were the wife and son of the deceased. Thus, they were not only relatives, but

interested. Their evidence is not free from doubts and discrepancies, and hence, the trial court should not have relied on their evidence. Even from

the available evidence of P.W.1, it would be clear that there was a quarrel between the deceased on the one side and the accused No. 1 on the

other side for a period of half an hour. According to her, A1 attacked the deceased with Pannai Aruval on his left side head, while A2 to A4, who

remained unarmed at that time, on a commotion took the sticks, which were available outside the tea stall, and attacked the deceased. Even from

the medical evidence it would be clear that the incised injury on the head of the deceased was a fatal one, and all other injuries are simple and

superficial. It is pertinent to note that there was an incised wound on the head of A1 and no explanation was tendered by the prosecution in that

regard. In view of all the above, there was no case for the prosecution. The judgment of the trial court has got to be set aside and the accused are

entitled for an acquittal by this Court.

Opposing all the contentions put forth by the appellants'' side, the learned Government Advocate (Criminal side) would submit that P.Ws.1 and

5 have given a cogent and acceptable evidence; that the medical evidence adduced through the post-mortem doctor has fully corroborated the

ocular evidence; that the prosecution has explained through the evidence of P.W.1 that at the time of incident, P.W.1 and P.W.5 took the sticks

and threw the same on the accused and probably that would have caused injury on A1, and hence, it cannot be said that no explanation was

available to the prosecution regarding the injury that was caused on A1. Since the prosecution has proved the culpable homicide by A1, for which

A2 to A4 were directly liable, the trial court was perfectly correct in recording a finding against the accused. Hence, the judgment of the trial court

has got to be sustained.

This court paid its full attention on the rival submissions made and had a close scrutiny of the materials available.

Admittedly, Ponnusamy Gounder, the deceased met his death due to the attack made by the accused. The specific case of the prosecution as

stated above was that A1 informed the deceased that he was having Rs.100/- in his trouser pocket and the same was missing, while he was in the

shop of Ponnusamy Gounder, and hence, he was responsible to answer for the same. On the day of occurrence, when Ponnusamy Gounder came

out from his shop at about 11.00 a.m., the accused made the same demand and he received the same reply from the deceased. Immediately, the

first accused attacked the deceased on his left side head with Pannai Aruval M.O.2 stating that he was responsible for the same. A2 to A4, who

were present at that time, also took the sticks that were available there and assaulted the deceased and caused injuries. The injured was taken to

Vilathkulam Government Hospital, where he was examined by P.W.11 and P.w.11 issued wound certificate. On intimation, P.W.13 rushed to the

hospital and found the deceased unconscious. He recorded the statement of P.W.1. On the strength of which, a case was registered. All the four

names of the accused have been mentioned in Ex.P.1. It is also mentioned that A1 attacked the deceased with Pannai Aruval, while the other

accused have attacked the deceased with sticks. Subsequently, the deceased was taken to Government Hospital, Tuticorin for further treatment,

where he succumbed to injuries. The evidence of P.Ws.1 and 5 is cogent and acceptable and their evidence inspired the confidence of the Court.

At the time of investigation, after conducting inquest, the Investigating Officer has given a request to the Government Hospital, Tuticorin for

conducting post-mortem. P.W.12 has conducted post-mortem on the dead body and given post-mortem under Ex.P.16. He opined that the injury

No. 2 found on the head of the deceased was fatal and that would have caused his dead and all other injuries were simple. Under the stated

circumstances, it would be futile to contend that the medical evidence was not in support of the prosecution case. The medical evidence has fully

corroborated the ocular evidence. Hence, those contentions put forth by the appellants'' side cannot be accepted.

The next contention raised by the appellants'' side that the there was an incised wound on the head of A1, but the same was not explained by

the prosecution. This Court is able to see from the evidence of P.W.1 that at the time of occurrence, on seeing the deceased being attacked by the

accused, P.W.1 and P.W.5 took the sticks and threw the same on the accused. Under the stated circumstances, it would be clear that the same

would have caused injury on A1, and hence, it cannot be stated that no explanation was tendered by the prosecution. In view of the evidence

available, this Court is able to see that the attack made by A1 on the deceased at that time and place was responsible for his death. At that time,

the other three accused were present and have attacked the deceased, which caused grievous injury. P.W.1 has categorically deposed that before

the occurrence there was a wordy quarrel for half an hour. The Court is of the view that due to sudden provocation, A1 attacked the deceased

with pannai Aruval. Under the stated circumstances, instead of 304(1) IPC, the case would fall u/s 304(2) IPC insofar as A1 is concerned. Insofar

as A2 to A4 are concerned, there is nothing to infer that they acted in furtherance of common intention of causing death, but, they caused only

simple injuries on the deceased, and hence, they are liable to be punished u/s 324 IPC.

Coming to the question of punishment, the Court is of the view that the sentence awarded by the trial court u/s 304(1) IPC in respect of A1

and the sentence awarded to A2 to A4 u/s 304(1) r/w 34 IPC have got to be set aside. Accordingly, it is set aside. A1 is convicted u/s 304(2)

IPC and he is sentenced to undergo RI for a period of five years with a fine of Rs.500/- in default to undergo RI for three months. The Accused

Nos. 2 to 4 are convicted u/s 324 IPC and they are sentenced to undergo RI for a period of two years and to pay a fine of Rs.300/- each in

default to undergo RI for two months. With the above modification, this criminal appeal is dismissed. The Sessions Judge shall take steps to

commit the accused Nos. 1 to 4 to prison, if they are on bail, to undergo the remaining period of sentence.