Ramasamy, Selvaraj @ Karuppusamy, Rangammal, Jayanthi, Nagammal, Kumarasamy and Pappathi vs State

M. Chockalingam, J.—This judgment shall govern the two appeals namely C.A. Nos. 563 and 702 of 1996.

The appellants in C.A. 702/96 who were ranked as A-1 and A-7 and the appellants in C.A.563/96 who were ranked as A-2 to A-6, all stood

charged, tried, convicted and sentenced as detailed below:

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Accused Charges(IPC) Guilty(IPC) Sentence

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A-1 148, 323 r/w 149 304(2) - 5 years RI

(3 counts), 324 326 - 2 years RI

(2 counts), 324

324 r/w 149 (3 (2 counts)- 1 year RI each

counts), 326, 302.

A-2 148, 323 r/w 149 304(2) - 5 years RI

(3 counts), 324

324 (3 counts), (3 counts)- 1 year RI each

324 r/w 149

(2 counts),

326 r/w 149, 302.

A-3 147, 323, 323 r/w 323 - Rs. 250/- Fine

149(2 counts),

324 r/w 149

(5 counts),

326 r/w 149, 302

r/w 149.

A-4 147, 323, 323 r/w 323 - Rs. 250/- Fine

149(2 counts),

324 r/w 149

(5 counts), 326

r/w 149, 302 r/w

149.

A-5 147, 323 r/w 149 341 - Rs. 250/- Fine

(3 counts),

324 r/w 149 (5

counts), 326 r/w

149, 341, 302

r/w 149.

A-6 147, 323 r/w 149 341 - Rs. 250/- Fine

(3 counts),

324 r/w 149 (5

counts), 326 r/w

149, 341, 302

r/w 149.

A-7 147, 323, 323 323 - Rs. 250/- Fine

r/w 149

(2 counts),

324 r/w 149 (5

counts), 326 r/w

149, 302 r/w 149.

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Challenging the said conviction and sentence, the accused have brought forth these appeals.

The short facts necessary for the disposal of both the appeals can be stated thus:

(a) P.W.1 Ponnusamy along with his wife Karuppayammal, the deceased and his sons and daughters namely P.W.2 Vijayakumar, P.W.3 Tmt.

Sivamani and P.W.4 Mahalakshmi respectively, was living in Pommalapalayam, Ayalur Village. A-1 was the brother-in-law of P.W.1, while A-2

was the brother of P.W.1. A-6 and A-7 were the sisters of P.W.1. A-4 was the wife of A-2. A-3 and A-5 were the son and daughter of A-2 and

A-4. P.W.1 Ponnusamy, A-1 Kumarasamy and A-2 Ramasamy all were co-sharers of Periya Thottam in the said village. On the north of the said

thottam, a common track, in respect of which P.W.1 on the one hand and A-1 and A-2 on the other hand had a long standing dispute. On the day

of occurrence namely 2.11.1994 at about 10.00 A.M. A-2 came to the track and was removing the thornbushes, and the same was objected to

by the deceased Karuppayammal. Following the same, a wordy quarrel broke out. Immediately A-1 armed with aruval attacked the deceased on

the middle portion of the head twice. A-2 attacked her with stick on her head and all over the body and shouted "",j;njhL xHpe;J ngh"". On hearing

the alarm, P.Ws.1 to 4 intervened and tried to rescue the deceased. A-1 to A-7 began to attack P.Ws.1 to 4 indiscriminately all over the body.

One Rangaswamy came to the rescue. A-1 to A-7 escaped from the scene of occurrence. The said Rangaswamy hired a taxi and took P.Ws.1 to

4 and the deceased to the Government Hospital, Gobichettipalayam, where P.W.7 Dr. Balamurugan examined the deceased. P.W.7 also

medically examined P.Ws.1 to 4. Ex.P6 was the wound certificate given in respect of the deceased Karuppayammal, while Exs.P7 to P10 were

issued in respect of the injuries found on P.Ws.1 to 4. P.W.8 Chinnasamy gave an intimation to the Gobichettipalayam Police Station at 4.15 P.M.

regarding the death of Karuppayammal under Ex.P11.

(b) At about 5.30 P.M., P.W.12 S. Lakshmanan, Sub Inspector of Police attached to the respondent Police Station, on receipt of the information

from Gobichettipalayam Police Station, received Ex.P11 intimation, went to the hospital at about 6.30 P.M. and recorded a statement from P.W.1

marked as Ex.P1. At about 7.30 P.M., on the strength of Ex.P1, he registered a case in Crime No. 165/94 under Ss 147, 148, 324 and 302 of

I.P.C. against the accused. Ex.P21 F.I.R. was sent to the concerned Magistrate''s Court immediately. P.W.14 Jagannathan, Inspector of Police,

on receipt of a copy of the FIR, took up the investigation, proceeded to the site of occurrence, prepared Ex.P13 observation mahazar in the

presence of P.W.9 Murugesan and one Rengasamy and Ex.P26 rough sketch, recovered M.Os.2, 3 and 5 under Ex.P14 mahazar in the presence

of the same witnesses and recorded the statements of those witnesses. On 3.11.1994 at about 6.00 A.M., he proceeded to the Government

Hospital, Gobichettipalayam, conducted inquest on the dead body of Karuppayammal in the presence of the panchayatars and witnesses and

prepared Ex.P27 inquest report. He examined P.Ws.1 to 4 the injured witnesses and recorded their statements. He recovered M.O.6 under

Ex.P15 mahazar, M.O.7 under Ex.P16 mahazar, M.O.8 under Ex.P17 mahazar and M.Os.12 and 13 under Ex.P18 mahazar.

(c) On request under Ex.P19 for the conduct of postmortem, P.W.11 Dr. Ramesh, who was on duty that time, conducted the autopsy and has

found the following injuries on the dead body of Karuppayammal.

External Injuries:

1) Lacerated wound obliquely placed left frontal region, found sutured 2.5 x 2.5 cm x bone deep shape with.

2) Incised wound seen over the middle of the head transversely placed 3 cm x "" cm x bone deep.

3) Contusion right temporal region 5 x 5 cm.

4) Hematoma left temporal region.

On Dissection:

1) Right side extensive hematoma 10 x 5 cm with fracture in that area of left side. Hematomes scar 10 x 10 cm size with fracture skull. Fracture

skull extending from left to right temporal region and parietal region of extending on to occipital region and found in four pieces.

P.W.11 Doctor gave a certificate under Ex.P20 and opined that the deceased would appear to have died of due to extensive fracture skull,

subrarachnoid haemorrhage and haemorrhage from the wound.

(d) On the arrest of A-1, a confessional statement, which was volunteered by A-1, was recorded. Pursuant to the confessional statement, M.O.1

aruval and M.O.2 stick were recovered under Ex.P3 mahazar in the presence of P.W.5 Ramamurthy and P.W.10 Periasamy. A-1 and A-7 were

sent for judicial custody. On 14.11.94, A-1 to A-5 gave a statement before the Judicial Magistrate No. II, Gopichettipalayam under S. 164 of

Cr.P.C., and the same was recorded by the Judicial Magistrate No. II, Gobichettipalayam. On 8.11.1994, P.W.14 examined P.W.8, and on

10.11.94 he examined P.W.11 and got postmortem certificate from P.W.11. P.Ws.1 to 4 have also made their statements before the Judicial

Magistrate No. II, Gobichettipalayam, which was recorded by the Judicial Magistrate under S. 164 of Cr.P.C. On 13.11.94, P.W.14

Investigation Officer examined the witnesses and recorded their statements. On completion of the investigation, the Investigation Officer filed a

charge sheet against the accused.

In order to prove the charges levelled against the appellants/A-1 to A-7, the prosecution examined 14 witnesses and marked 27 exhibits and 14

material objects. After the completion of the evidence of the prosecution, the appellants/accused were questioned under S. 313 of Cr.P.C. as to

the incriminating circumstances found in the evidence of the prosecution witnesses, and they flatly denied the same as false. No defence witness

was examined. The trial Court after consideration of the rival submissions and scrutiny of the materials available, has recorded a finding that the

accused were guilty under the above provisions of I.P.C. and sentenced them to undergo imprisonment as stated supra, which is the subject matter

of both the appeals.

The learned Counsel appearing for the appellants in C.A.702/96 with vigour and vehemence raised the following points for consideration by this

Court.

The prosecution has mainly relied on the evidence of P.Ws.1 to 4, who were all close relatives. While P.W.1 was the husband, P.Ws.2 to 4 were

the children of the deceased Karuppayammal. According to the prosecution, one Rangaswamy interfered at the time of the occurrence and took

Karuppayammal and P.Ws.1 to 4 to the Government Hospital, Gobichettipalayam. This fact that Rangaswamy brought them to the Hospital has

been spoken to by the Medical Officer, who gave treatment to them. But, the said Rangaswamy, for reasons best known to the prosecution, was

neither shown as a witness nor examined in the trial Court. If this evidence is scrutinised closely, it would indicate that the deceased was the

aggressor. It is true that the property was under common enjoyment, and what was done by A-2, according to the prosecution, was the removal

of the thornbushes from the common cart track. At that time, the intervention by the deceased followed by the wordy quarrel has resulted in the

occurrence. The evidence does not indicate anywhere that the accused have acted with any pre-meditation or with intention or with motive. As per

the prosecution case, at first the deceased was attacked and P.Ws.1 to 4 were attacked one after another by all the accused. As narrated by the

prosecution, P.Ws.1 to 4, though they were injured with aruval and sticks one after another, were keeping quiet. It would be nothing but opposed

to the normal human conduct, and thus, it would indicate that P.Ws.1 to 4, though they were injured witnesses, have not brought forth the truth, but

they suppressed a part of the occurrence, and thus, their evidence should not have been given any credence at all. It remains to be stated that

though the intimation was given by the Medical Officer attached to Government Hospital, Gobichettipalayam immediately to the Police Station

situated the next compound, the concerned Sub Inspector went to the hospital only after the death of Karuppayammal and recorded the statement

of P.W.1, which is casting a doubt on the prosecution case. The lower Court has much relied on the testimonies of P.Ws.1 to 4 and has found the

accused guilty. But, a careful scrutiny of the evidence of P.W.1 would lead to the outright rejection of their evidence, and in view of the doubts and

suspicions, the appellants should have been acquitted by the lower Court. Considering the submissions made above, the appellants/accused are

entitled for an acquittal.

The learned Counsel appearing for the appellants in C.A.563/96 while adopting the arguments put forth by the learned Counsel for the

appellants in C.A.702/96, would further add that there are lot of inconsistencies in the evidence of P.Ws.1 to 4; that they would speak at one

place that they were attacked by card frame, and in the other place, they would say that they were attacked by reaper; and that according to the

Doctor, who gave them treatment, at first they have stated that 12 persons attacked them namely 5 women and 7 men, but, the case was brought

before the trial Court and charge sheet was also filed against 7 persons, who were the appellants before this Court. Added further the learned

Counsel that A-2 is aged 60 years old; that in view of the discrepancy in the evidence of P.Ws.1 to 4, it cannot form the basis for a conviction, and

hence, the appellants has got to be acquitted.

Opposing strongly all the above submissions made in both the appeals, the learned Government Advocate (Criminal Side) would submit that the

prosecution in the instant case has examined P.Ws.1 to 4 who have clearly narrated the entire incident; that they are injured witnesses, and they

have been treated immediately by the Doctor, and the wound certificates in their regard have been brought forth; that it is true that there are some

minor discrepancies, and on that count, the prosecution case does not warrant rejection; that the non-examination of Rangaswamy, who according

to the Medical Officer, brought P.Ws.1 to 4 to the Hospital, will not in any way affect the prosecution case, because in the instant case, the injured

witnesses have been examined by the prosecution, who would clearly speak about the occurrence, and the Doctor, who admitted P.Ws.1 to 4

injured, has also spoken about the same, and hence, the non-examination of Rangaswamy, who according to the prosecution intervened and came

to the rescue of the prosecution witnesses does not affect the prosecution case; that in the instant case, it is not correct on the part of the

appellants'' side to state that the medical evidence has not supported the ocular evidence, but on the contrary, the ocular evidence has been clearly

supported and full corroboration is lent by the medical evidence; that it is pertinent to note that M.Os.1 and 4 which were the weapons used at the

time of the occurrence, have been recovered on the confessional statement volunteered by the accused, and M.Os.2 and 3, the weapons used at

the time of the occurrence, have been recovered from the site of occurrence in the presence of mahazar witnesses, who have spoken to the said

fact; that there is overwhelming evidence available, which led the lower Court to found them guilty; and hence, the judgment of the lower Court has

got to be sustained.

After careful consideration of the rival submissions and close scrutiny of the entire materials available, the Court is unable to see any substance in

the contentions, all or any one, put forth by the appellants'' side.

The prosecution came with the specific case that the accused constituted into an unlawful assembly, came over to the place of occurrence and

assaulted Karuppayammal, the deceased and P.Ws.1 to 4 on the date of occurrence namely 2.11.1994 at 10.00 A.M. Admittedly, A-1 and A-2

on the one side and P.W.1 on the other side had got a rival claim over a path in the common track situated on the northern side of one Periya

Thottam, which belonged to both the parties, and on the day of occurrence on 2.11.1994 at 10.00 A.M., A-2 was removing the thornbushes in

the cart track which was being questioned by Karuppayammal. There is nothing to indicate in the entire evidence that except questioning the same,

Karuppayammal did any act or condemned them in such a way, which would provoke the accused. From the evidence of P.Ws.1 to 4, it would

be clear that they have given a cogent and acceptable evidence that A-1 was armed with aruval and A-2 with stick, and all the other accused have

also accompanied, and A-1 gave two cut injuries on the middle portion of the head of Karuppayammal twice, while A-2 attacked her with stick on

the head and all over the body. That apart, P.Ws.1 to 4 were injured at the time of the occurrence by all the accused. The fact that

Karuppayammal died soon after the occurrence, and it was declared by P.W.7 Medical Officer in the Government Hospital, Gobichettipalayam, is

not in dispute. So far as the injuries that were caused to P.Ws.1 to 4 were concerned, they have given their version along with the narration of the

incident and the injuries caused by each and every accused. The evidence of P.Ws.1 to 4, the injured witnesses and the cause that led to the death

of Karuppayammal as spoken to by P.Ws.1 to 4 are thoroughly corroborated by the evidence of the medical person, apart from the documents

filed by the prosecution marked as Exs.P6 to P10 which are the wound certificates in respect of the injuries found on them. In such circumstances,

in a case like this, when the injured witnesses have been examined, who gave a cogent and clear narration of the event that took place, and the

circumstances attendant over the occurrence do not cast any doubt, the prosecution case has got to be necessarily believed.

So far as the death of Karuppayammal was concerned, at the time of inquest, panchayatars were examined, and an inquest report was

prepared, and at the request of the Investigation Officer, autopsy was also conducted by P.W.11 Doctor, who has also deposed to the effect that

the injury Nos. 1 and 2 found on the deceased, would cause death, and that the deceased would have died due to the extensive fracture in the

skull. Therefore, the opinion given by the Doctor by evidence and through his postmortem certificate would clearly corroborate the evidence of the

eyewitnesses, and thus, the Court is unable to notice any doubt in the ocular evidence, which was thoroughly corroborated by the medical

evidence.

In the instant case, it has to be necessarily pointed out that pursuant to the confession made by the A-1, M.Os.1 and 4 have been recovered.

The arrest of A-1 and the recovery of M.Os.1 and 4 pursuant to the confession made by A-1 have been clearly spoken to by the witnesses, which

part of the evidence is in tact. According to the prosecution, these were the weapons used by the accused at the time of attack, and hence, this

part of the evidence would clearly speak about the nexus of the accused to the crime in question. That apart, M.Os.2 and 3 have also been

recovered, which fact has also been spoken to by the witnesses. Under such circumstances, the contention of the appellants'' side that the

witnesses who were examined were close relations to the deceased and they are interested, cannot be of no avail to them. Simply because the

witnesses are related, it cannot be construed that they are interested. In the instant case, the injured witnesses namely P.Ws.1 to 4 have been

examined, whose evidence does not carry any doubt. Hence, the Court is of the view that on the ground of the relationship, their evidence cannot

be brushed aside, and their evidence has got to be necessarily accepted due to the clear and cogent nature.

The Court is unable to attach any importance on the non-examination of the said Rangaswamy, who according to the prosecution interfered to

save P.Ws.1 to 4. In the instant case, the narration of the incident has been clearly given by P.Ws.1 to 4, and shortly they were taken to the

hospital and examined by P.W.7 Doctor by whom they were treated. When both the ends are available, the non-examination of Rangaswamy who

took the injured witnesses to the hospital, will not in any way affect the prosecution case. The contention of the appellants'' side that some of the

witnesses in one place have spoken to the weapon of attack as card frame and in the other place have spoken to reaper cannot be given much

weight, because it is a minor discrepancy. It is true that the Inspector of Police, Gobichettipalayam has gone to the Government Hospital at

Gobichettipalayam, after the death of Karuppayammal and recorded the statement of P.W.1. According to the learned Counsel for the appellant,

the delay so occasioned would cast some doubt on the prosecution case. This contention cannot be countenanced for the simple reason that the

intimation was given by the medical person immediately to the Police Station at Gobichettipalayam, wherefrom the Investigation Officer came

within a few hours, before which Karuppayammal died. Under such circumstances, it can be stated that in the natural course of event, the said

delay has happened, and the same cannot be attached with any importance.

One other circumstance, according to the appellants'' side is that that the conduct of P.Ws.1 to 4 was opposed to the normal human conduct,

since when one after another was being attacked, they were keeping silence, and in the given circumstance, one cannot keep quiet, and thus, the

occurrence would not have happened. This contention has got to be rejected for the simple reason that at the time of the occurrence, in particular

A-1 and A-2 were armed with aruval and stick, and there is no material to show that the prosecution witnesses were armed with anything, but they

were unarmed. In such circumstances, the said contention does not arise for consideration.

The lower Court taking into consideration all the facts and circumstances of the case, has taken the view that it was due to sudden quarrel, and

it was neither motivated nor intentional and has recorded a finding that A-1 and A-2 caused such bodily injury to Karuppayammal as is likely to

cause death and voluntarily caused hurt to the prosecution witnesses by dangerous weapons, and A-1 voluntarily caused grievous hurt to the

prosecution witnesses by dangerous weapons, and A-3, A-4 and A-7 voluntarily caused hurt to the said witnesses, and A-5 and A-6 wrongfully

restrained the witnesses. The Court below found the appellants/accused guilty of the said charges and convicted them as stated supra. The Court is

unable to see anything so as to interfere in the conviction imposed by the Court below. Coming to the question of sentence, the lower Court has

imposed a sentence of 5 years R.I. on A-1 and A-2 for the offence under S. 304(2) of I.P.C. It is brought to the notice of the Court that A-1 and

A-2 have crossed 60 years, and the same has got to be considered. Taking into consideration the facts and circumstances of the case, the

sentence awarded by the trial Court under S. 304(2) of IPC to A-1 and A-2 has to be reduced to 4 years R.I., which would meet the ends of

justice.

Therefore, the sentence of 5 years R.I. under S. 304(2) of I.P.C. imposed by the lower Court on A-1 and A-2 is modified, and A-1 and A-2

shall undergo R.I. for 4 years under S. 304(2) of I.P.C. In other respects, the judgment of the lower Court is confirmed. With the above

modification, both the criminal appeals are dismissed. The Sessions Judge shall take steps to commit A-1 and A-2 to prison, if they are on bail, to

undergo the remaining period of sentence.