JAYASEELAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court allowing the appeal filed by the State. Challenge in the appeal was to the correctness of the judgment of learned Sessions Judge, Madurai directing acquittal of the present appellant. He was charged for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). In fact two persons were tried in the said Sessions case. Present appellant is the son of A2. By the trial court's judgment, A2 was also acquitted. Though State had questioned the acquittal of both the accused persons, leave was granted by the High Court only in respect of the present appellant i.e. A1.

(2.) Background facts in a nutshell are as follows : PW.1 is residing at Paloothu. The deceased Murugan (hereinafter referred to as the 'deceased') is his sister's son. PW2 is the younger brother of the deceased. The deceased was also residing in the same place. PW1 knows the accused. A1 is the son of A2 and they are also residents of the same place. The occurrence had taken place on 15.1.1990 around 5.00 p.m. It was a festival day (the day following the festival of Pongal, which falls on 14.1.1990). On that day, PW 1 went towards the house of one Chellappa Thevar and he was standing there for some time. The house of Chellappa Thevar is in the middle street of the said village. The deceased was coming from north to south in that road bringing two bulls. As already stated, on the day in question, the festival related to washing the bulls; decorating them; painting the horns and then after garlanding the same, they would be taken around the town in a joyous manner. A2 was coming behind the deceased with a stick in his hand. He was just swinging the stick around his body. A1 was proceeding from south to north in the same road and he was armed with a knife. With that knife, he stabbed on the left side of the chest of the deceased and ran towards south. The victim tumbled on his feet in the street. On seeing this, P.Ws.1 and 2 ran towards him and gave their hand of support. One other person by name Chinnasamy also witnessed the occurrence and he gave a hot chase to A1. The injured, who by then had lost his consciousness, was put on a cart and taken to the private hospital of one Anbalagan by PWs. 1 and 2. But the Doctor was not available there and Murugan breathed his last outside the hospital itself while he was in the cart. Immediately, PWs. 1 and 2 reached the police station, taking the dead body in that cart. PW.6 was the Sub Inspector of Police in the Police Station during the relevant time, before whom, PW 1 gave the complaint. Ex.P1 is that complaint attested by PW.2 and one Chinnasamy, who accompanied them. There was an earlier incident regarding the construction of a house between A2 and the father of the deceased. During the occurrence in the present case, the shirt and dhoti of PW. 1 became blood stained and the shirt of PW2 also became blood stained. The personal wearing apparels of PWs. 1 and 2 were produced at the police station. MOs. 1 and 2 are the shirt and dhoti of PW1 and after getting change dress from his house, he surrendered them at the police station. MO3 is the weapon of offence in the hands of A1, which he used in inflicting the fatal injury on the deceased. He was examined during inquest by the investigating Officer. P.W.2 had also given evidence in total corroboration to the oral evidence of PW1 on all material aspects as referred to above. He stated that, MOs.4 and 5 are his shirt and lungi, which he handed over at the Police Station, after getting change dress from his house. He was examined during inquest. PW.3 witnessed the preparation of Ex.P.2/ observation mahazar as well as the recovery of MOs. under Ex at 7.30 a.m. on 16.1.1990. The medical officer was of the opinion that the deceased appeared to have died on account of the stab wound over the vital organ, namely heart. The trial court did not accept the prosecution version and directed acquittal primarily on the following grounds :

(3.) Learned counsel for the appellant submitted that there was unexplained delay in lodging the FIR. The injuries on the appellant were not explained and in view of the fact that the co-accused A2 was acquitted on the same set of evidence, the High Court ought not to have allowed the appeal. The evidence of the eye witnesses cannot be said to be totally without possibility of false implication.