BALASUBRAMANIAN Vs. STATE

JUDGEMENT

(1.) CHALLENGE is made to the judgment dated 17.6.2009 passed by the learned First Additional District and Sessions Judge, Coimbatore in S.C. No.236 of 2008 whereby the appellants 1 to 3 along with other accused ranked as fourth accused stood charged, tried, found guilty and awarded punishment as follows:- Sl. No. Rank of the accused Charge Finding Sentence 1. 1st Accused 302 I.P.C. 506(ii)I.P.C. 307 I.P.C. Guilty Not Guilty Not Guilty Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for five months. .... .... 2. 2nd Accused 302 I.P.C. 324 I.P.C. 506(ii)I.P.C. 307 I.P.C. Guilty Guilty Not Guilty Not Guilty Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for five months. Six months Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo Rigorous Imprisonment for two months .... .... 3. 3rd Accused 302 I.P.C. 506(ii)I.P.C. 307 I.P.C. Guilty Not Guilty Not Guilty Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for five months. .... .... 4. 4th Accused 302,307 and 506(ii) I.P.C. Not Guilty Acquitted

(2.) THE short facts necessary for the disposal of the case can be stated thus:- (i) Accused 1 and 3 are brothers. THE second accused is the son of the third accused. THE deceased Gnanasekaran is another brother of accused 1 and 3. THEre was a land dispute between the third accused and Gnanasekaran, in respect of which there was a criminal case pending on the file of the Sub Court, Udumalpet against the deceased Gnanasekaran, which ended in acquittal by judgment dated 16.7.2007. (ii) On the next day, i.e. on 17.7.2007 at about 7.30 a.m., all the witnesses P.Ws.1 to 3 along with the deceased Gnanasekaran went to their field and P.W.1 went to the milk Society to hand over the milk. At that time, accused 1 to 4 came in a car bearing registration No.TN-41-4454 and P.W.4 came there and asked tender coconuts from P.Ws.2 and 3. When both of them went for taking tender coconuts along with P.W.4, they heard a distressing cry and they ran. P.W.1 also returned from Society after supplying milk. (iii) All of them witnessed the occurrence that the second accused cut the deceased with aruval on his head, the third accused had beaten the deceased on his head repeatedly with iron rod, the first accused attacked him on his head with hammer and the fourth accused attacked him with wooden log. (iv) When P.W.1 intervened, he was attacked by second accused with aruval on hands, third accused had beaten him on his head and lips, first accused attacked him with hammer on his both eyes and the fourth accused attacked him with wooden log and P.W.1 was also severely injured. THEreafter, accused 1 to 4 fled away from the place of occurrence. (v) P.Ws.3 and 5 engaged a taxi of P.W.8 and took P.W.1 and severely injured Gnanasekaran to the Government Hospital, Udumalpet and on their advice, Gnanasekaran was taken to the Government Hospital, Coimbatore. On intimation, P.W.16 Sub Inspector of Police, Gudimangalam Police Station went to the Government Hospital, Udumalpet and recorded the statement of complaint Ex.P1 from P.W.1 and on the strength of Ex.P1 complaint, a case in Crime No.197 of 2007 was registered for the offences under Sections 307 and 506 (ii) of the Indian Penal Code. Express First Information Report Ex.P8 was despatched to the Court. (vi) After receiving copy of First Information Report, P.W.17 Inspector of Police took up investigation and went to the place of occurrence and prepared Ex.P2 observation mahazar and Ex.P9 rough sketch and thereafter recovered M.O.2 bloodstained earth, M.O.3 sample earth and M.O.4 bloodstained stone under the cover of Ex.P3 mahazar in the presence of witnesses. P.W.1 was sent for treatment to the Government Hospital, Coimbatore where he had taken treatment and wound Certificate is marked as Ex.P6 and intimation was received that Gnanasekaran succumbed to injuries sustained by him. THEreafter, the case was altered to one under Sections 302, 307 and 506(ii) of the Indian Penal Code. Amended First Information Report Ex.P10 was sent to the Court. (vii) THE Investigator further proceeded to the investigation and conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P11. THEreafter, the dead body was sent for post-mortem and P.W.11, who conducted post-mortem, issued post-mortem Certificate Ex.P5 where he has opined that the deceased would appear to have died of multiple Cranio cerebral injuries sustained by him. (viii) Pending investigation, P.W.17 arrested the third accused on 20.7.2007, pursuant to which, he gave confession statement voluntarily and the same was recorded in the presence of witnesses. THE admissible portion of the same is marked as Ex.P12 THEreafter, on identification by the third accused, P.W.17 seized M.O.5 bloodstained iron rod, M.O.4 shirt under Ex.P7 mahazar. (ix) THEreafter, the Investigator came to know that the first and second accused surrendered before the Court and he filed a memo for getting the police custody and the same was ordered and accused 1 and 2 were taken to police custody on 7.8.2007. THEreafter, he recorded the confession statements given by them voluntarily in the presence of P.W.14 Sri Murugan. THE admissible portion of the same are marked as Ex.P116 and P13 respectively. On their identification, he seized M.O.7 aruval, M.O.8 hammer, M.O.9 wooden stick. THEreafter, he seized M.O.10 Nokio cell phone from the house of the second accused under Ex.P15 mahazar. On identification by the first accused P.W.17 seized Maruthi 800 car bearing registration No.TN 41-Q-5425 under Ex.P17 mahazar. (x) THEreafter, he took the fourth accused to his custody on 21.11.2007 and recorded the confession statement given by him. THEreafter, all the material objects, which were seized from the accused and recovered from the dead body, were subjected to chemical analysis. Ex.P18 is the chemical analysis report and Ex.P19 is the Serological report. On completion of investigation, final report is filed. THE case was committed to the Court of Sessions. Necessary charges were framed against the accused.

(3.) ADVANCING arguments on behalf of the appellants, learned counsel would submit that the occurrence, according to the prosecution, had taken place at 7.30 a.m. on 17.7.2007. To prove the guilt of the accused, the prosecution relied on the evidence of P.Ws.1 to 4. P.Ws.1 to 3 are closely related to each other and they are interested witnesses and hence their evidence cannot be accepted. Apart from this, P.W.4, though independent witness, the same cannot be accepted. In the evidence of P.W.4, at the time of cross-examination, he made it clear that P.Ws.1 and 4 did not see the occurrence. According to him, he came to the spot after the occurrence was over. Thus, insofar as the evidence of P.Ws.2 and 3 are concerned, they have categorically stated that P.W.1 went for supply of milk to the Milk Society. P.W.4 came to the spot and asked for tender coconuts and hence, P.Ws.2 and 3 accompanied P.W.4, leaving the deceased Gnanasekaran and went inside the field for taking tender coconuts. At that time, they heard the distressing cry. They have categorically stated that they were standing 500 feet inside the field and hence P.Ws.2 and 3 could not have seen the occurrence. After the occurrence was over, P.W.4 along with P.Ws.2 and 3 rushed to the place of occurrence. Hence, from the evidence of P.W.4, it would be quite clear that P.Ws.2 and 3 could not have seen the occurrence at all.