RAMAMOORTHY Vs. STATE

JUDGEMENT

(1.) THESE Criminal Appeals arise out of the judgment of conviction and sentence passed by the learned Second Additional Sessions Judge, Coimbatore, dated 29.11.2002 in S.C.No.336 of 2002, in and by which, A-1, A-2, A,4 and A-6 (appellant-A-1 in Crl.A.No.101 of 2003, first appellant (A-2) in Crl.A.No.920 of 2004, first appellant (A-4) in Crl.A.No.227 of 2003 and second appellant (A-6) in Crl.A.No.227 of 2003) were convicted for the offences under Sections 147, 342, 323 and 304 (Part-2) IPC and A-3 (appellant in Crl.A.No.1061 of 2003) and A-5 (second appellant in Crl.A.No.920 of 2004) were convicted for the offences under Sections 147, 342 and 304 (Part-2) IPC and they were sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo one month rigorous imprisonment for the offence under Section 147 IPC, six months' rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo one month rigorous imprisonment, for each of the offences under Sections 342 and 323 IPC and five years' rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo six months' rigorous imprisonment, for the offence under Section 304 (Part-2) IPC, in respect of the respective accused. The sentences imposed on the accused were ordered to run concurrently. Challenging the said conviction and sentence, the present Criminal Appeals have been filed.

(2.) THE case of the prosecution is as follows:

(3.) CHALLENGING the conviction and sentence imposed by the trial Court, the learned counsel for the appellants-accused would contend that P.Ws.8 and 9, who are the injured eye-witnesses, have not deposed with regard to the specific overt act against the accused, that there is a material contradiction between the ocular evidence and the medical evidence, that the deceased sustained multiple brain injuries and that in Ex.P-11 post-mortem certificate, P.W.6 Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries to brain. Learned counsel for the appellants-accused would further contend that there is no evidence to corroborate the head injuries and hyoid bone fracture. P.Ws.8 and 9 have not deposed about the injuries sustained by the deceased. So, the trial Court has committed error in convicting the accused under Section 304 (Part-2) IPC. Since the deceased has sustained only simple injuries, the appellants-accused are only liable to be convicted for the offence under Section 323 IPC and not under Section 304 (Part-2) IPC. Hence, he prayed that the appellants-accused are only guilty of the offence under Section 323 IPC and not under Section 304 (Part-2) IPC. Learned counsel for the appellants-accused would further contend that no identification parade was conducted and P.Ws.8 and 9 have identified the accused only before the Court and that will not be considered as per the decision of the Supreme Court reported in 2000 (2) SCJ 139 (State of U.P. Vs. Ashok Dixit and another). Learned counsel for the appellants would also rely upon the decisions of the Supreme Court reported in 2004 SCC (Cri) 1954 (Rudrappa Ramappa Jainpur Vs. State of Karnataka) and 2003 (2) L.W. (Crl.) 852 (Bhima @ Bhimrao Sida Kamble and others Vs. State of Maharashtra) to substantiate his contentions.