DANAPAL Vs. STATE

JUDGEMENT

(1.) THE appellants are A.1 to A. 3 and A. 6 in S.C.No.125 of 1989 on the file of the learned Sessions Judge, Chengalpattu. THEy were tried along with two other accused, namely, A.4 and A.5 before the learned Sessions Judge. Though the learned Sessions Judge framed four charges, he convicted A.1 and A.6 under charge No.2 for an offence under Section 323, I.P.C. read with Section 34,I.P.C. and sentenced each of them to suffer rigorous imprisonment for a period of one year for causing simple injury to P.W.I, the brother of the deceased Jayakumar by fisting him on his face. A.1 to A.3 were also convicted for an offence under Section 302, I.P.C. read with Section 34, I.P.C. on an allegation that they caused the death of Jayakumar, the brother of P.W. 1, by the fist accused beating him with a casuarina stick, M.O.5 and the second accused assaulting him with an iron pipe and the third accused beating him with a casuarina stick on the back of his chest and right hand. A.I and A.6 were sentenced to rigorous imprisonment for a period of one year for an offence under Section 323,I.P.C. read with Section 34, I.P.C. and A.I to A.3 were sentenced to imprisonment for life. Hence, the present appeal. In this judgment, appellants A.I to A.3 and A.6 as well as the acquitted accused A.4 and A.5 will be referred to as A.I to A.6, as and when the context arises.

(2.) THE case of the prosecution can be briefly summarised as follows:- P.W.l is the elder brother of the deceased and P.Ws.6 and 7 are the employees of the deceased in a provision store run by him at Thiruvanmiyur. A.I to A.6 were the residents of Palavakkam Colony. THE deceased was running a provision store in the name and style of "Sudha Stores" at Palavakkam Muttukkadu, Mahabalipuram Road. Behind the said shop, P.W.1 was residing with his wife along with his deceased brother. P.Ws.6 and 7 were also residing in the same house. At about 8.30 A.M. on 19.6.1988, the first and the second accused went to the provision store of the deceased and the first accused asked the deceased to lend him 5 kilos of rice. THE deceased refused saying that he will not give rice unless he pays the old balance, since the first accused was already in arrears of payment of Rs.50 for the earlier purchase. THE first and the second accused shouted at the deceased, pulled the shutter and threw the provisions on the road. P.Ws.l, 6 and 7 and the deceased asked them not to create a scene. THEy closed the shop and went to the house. THE first and the second accused threatened the deceased that they will not allow him to run the shop unless the articles are lent to them. At about 8.30 P.M. on 19.6.1988, A.1 to A.6 rushed towards P.W.1, who was fetching water from a water tank and the first accused while asking P.W.1 as to whether he is the supporter of his brother, pushed him down and fisted on his face. A.6 also fisted on the right cheek of P.W.1.THE third accused pulled the tuft of P.W.1.P.W.1 ran towards the field, chased by A.1 to A.6, who could not succeed in catching him. THE deceased went for a movie and was returning with his employees, P.Ws.6 and 7. At about 10.00 P.M. when the deceased and P.Ws.6 and 7 reached the Office of the City Water Supply at Palavakkam, A.1 to A.3 went there and the first accused stated "Here comes Jayakumar". THEreafter, the first accused took a casuarina stick which was lying nearby and caught hold of the shirt of the deceased and beat him with the stick. THE second accused took an iron pipe from the workshop and similarly, the third accused took casuarina stick which was lying in front of the hotel, and beat him. P.Ws.6 and 7 saw the incident. A.1 to A.3 ran away from the scene. Information was given to P.W.1.P.W.1 reached the scene and thereafter took the deceased to the police station at Thiruvanmiyur. At the police station, the deceased gave a statement to P.W. 10, the Sub-Inspector of Police, Thiruvanmiyur Police Station, which was reduced into writing, which stands marked as Ex.P.11. On the basis of Ex.P.11 given by the deceased, a case in Crime No.889 of 1988 was registered against the accused under Sections 147, 148 and 307,I.P.C. Ex.P.12 is a copy of the printed first information report. After the registration of the crime, the deceased was also questioned and his statement under Section 161, Cr.P.C. was recorded at 10.35 P.M. which stands marked as Ex.P.13 in this case. He also questioned and recorded the statement of P.W.6 as well as P.W.1.THE deceased and P.W.1 were sent to the Government Royapettah Hospital with a memo.

(3.) WHEN questioned under Section 313, Cr.P.C. the accused have denied their complicity and pleaded innocence. According to the prosecution, the occurrence took place at about 10.00 P.M. and it was witnessed by P.Ws.6 and 7, the employees of the deceased Jayakumar. Both have in their evidence stated that when they were returning from the theatre at about 10.00 P.M. along with the deceased, the accused way laid them and attacked. It is their further case that immediately after the incident, an information was passed on to P.W.1 and thereafter, the deceased was removed to the police station, where the deceased gave the statement, Ex.P.11 to the Sub-Inspector, P.W.10. A perusal of Ex.P.11 would show that the deceased had come out with a statement, wherein he had stated that when he was returning from the theatre with his employees, accused 1 to 3 beat him with sticks and when he fell down, he was beaten by six others. The deceased was sent to the hospital along with P.W.1 for treatment, since P.W.1 also sustained injuries at the hands of A.1 and A.6 at 8.30 P.M. on the said date. The duty doctor P.W.9 examined the deceased as well as P.W.1 and found the injuries as noted by him in the respective accident registers. Therefore, there can be no doubt that the deceased Jayakumar sustained injuries at about 10.00 P.M. and it was witnessed by P.Ws.6 and 7.