ELUMALAI Vs. STATE

JUDGEMENT

(1.) THIS appeal challenges a judgment of the Principal Sessions Division, Villupuram, made in S.C.No.253 of 2007 whereby these appellants, who were shown as A-1 and A-2 respectively, along with A-3 and A-4 stood charged, tried, found guilty and awarded punishment as follows: ACCUSED CHARGE FINDING PUNISHMENT A-1 & A-2 302 IPC Guilty Life imprisonment with a fine of Rs.5000/- and default sentence A-1 to A-3 324 IPC Guilty 2 years RI with a fine of Rs.5000/- and default sentence A-1 & A-4 294(b) IPC Not guilty Acquitted A-4 323 IPC (2 counts) Guilty 6 months SI with a fine of Rs.2000/- and default sentence A-3 and A-4 302 r/w 34 IPC Guilty Life imprisonment with a fine of Rs.5000/- and default sentence

(2.) SHORT facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a native of Mettupalayam Village. P.W.2 is his mother, while P.W.3 is his sister. The deceased Chinnathambi was the father of P.Ws.1 and 3 and the husband of P.W.2. There were landed properties, motor pump set and coconut thope, and all belonged to two families consisting of the deceased and the prosecution witnesses on the one side and of A-1 and A-2 on the other side. The properties were actually not divided, and civil proceedings were pending before the Court. Just before the occurrence, some coconuts were taken by the deceased and were given to the Mariamman Temple in the village at the time of the festive occasion. Aggrieved over the same, on the date of occurrence that was on 15.6.2007, the accused climbed over the trees and did some mischief by damaging the coconuts. It was questioned by the deceased, and immediately, A-1 attacked him with a knife on his head, and A-2 also joined him in attacking the deceased with another knife. P.W.1 intervened, and he was attacked by A-1 and A-2 respectively, one after another. P.W.3 also intervened, and she was also attacked by A-3 with a knife and A-4 with a wooden-log. Both the deceased and P.Ws.1 to 3 were all injured. P.W.4 has witnessed the entire occurrence. (b) P.W.4 along with others took both the deceased Chinnathambi and also P.Ws.1 to 3 to the Government Hospital, Villupuram, where all of them were given treatment by P.W.11, the Doctor. He gave initial treatment to the deceased, and the accident register copy in his regard is marked as Ex.P13. Insofar as P.W.2, the accident register copy is Ex.P14. Ex.P15 is the accident register copy pertaining to P.W.3. The accident register copy in respect of P.W.1 is marked as Ex.P16. In these accident register copies, the injuries sustained by them were noted by P.W.11, the Doctor, and thereafter, the deceased was taken to the Government General Hospital, Pondicherry, on the advice given by P.W.11. (c) On receipt of the intimation, P.W.14, the Sub Inspector of Police of the respondent police station, proceeded to the Government Hospital, Villupuram, and recorded the statement of P.W.1, marked as Ex.P1, on the strength of which a case in Crime No.476 of 2007 was registered under Sections 294(b), 324, 323 and 307 of IPC. The printed FIR, Ex.P20, was despatched to the Court. (d) The investigation was taken up by P.W.15, the Inspector of Police of the Circle, who proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P22. A-1 was arrested on 16.6.2007. He came forward to give a confessional statement voluntarily which was recorded in the presence of witnesses. Ex.P23 is the admissible part of that confession. He produced a koduval which was recovered under a cover of mahazar. A-3 was arrested on the very day. He gave a confessional statement. They were sent for judicial remand. (e) On 23.6.2007, an intimation was received from the hospital that Chinnathambi died. Then the case was converted to Sec.302 of IPC. The amended FIR, Ex.P25, was despatched to the Court. Then the Investigator conducted inquest on the dead body of Chinnathambi in the presence of witnesses and panchayatdars and prepared Ex.P26, the inquest report. A requisition was given to the hospital authorities for the purpose of postmortem. (f) P.W.13, the Senior Resident Forensic Medicine, Indira Gandhi Government G.H. & Post Graduate Institute, Pondicherry, on receipt of the requisition, has conducted autopsy on the dead body of Chinnathambi and has issued a postmortem certificate, Ex.P19, with his opinion that the deceased died of head injuries. (g) The Investigator came to know that A-2 and A-4 have surrendered before the Judicial Magistrate No.II, Villupuram. He made a request for police custody, and the same was ordered. At the time of interrogation, they voluntarily gave confessional statements, and the same were recorded independently. The admissible part of the confessional statement of A-2 is Ex.P9 and that of A-4 is marked as Ex.P11. They produced knife and wooden-log respectively, which were recovered under a cover of mahazar. All the material objects were subjected to chemical analysis by the Forensic Sciences Department which resulted in Ex.P29, the chemical analyst's report, and Exs.P30 and P31, the serologist's reports. On completion of investigation, the Investigator filed the final report.

(3.) ADDED further the learned Counsel pointing to Ex.D1, the FIR registered in the counter case in Crime No.480 of 2007, that the said case came to be registered at the instance of A-1 that A-1 has also sustained injuries that Ex.D3, the accident register copy, would clearly indicate the same that injury was also caused on his head that without being inflicted by a weapon, such an injury could not have been caused that it would be quite clear that the prosecution has burked the genesis of the occurrence and also failed to explain how the injury was sustained by A-1 that if to be so that on the very same transaction, two cases came to be registered, a duty was cast upon the prosecution to place and prove all the materials available enabling the Court to find out the truth but the prosecution has miserably failed to do so, and under the circumstances, the trial Judge should have rejected the case of the prosecution outright.