THUNINCHARAM Vs. STATE

JUDGEMENT

(1.) The appellants are respectively A.1 and A.3 in SC No. 31 of 1984 on the file of the Additional Sessions Judge, Ramanathapuram at Madurai. The first appellant has been convicted for an offence u/S.302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-. The second appellant has been convicted for an offence u/S.324 of the Indian Penal Code and sentenced to pay a fine of Rs.300/-. The appeal challenges the convictions and sentences.

(2.) The gravaman of the charge against the appellants and their co-accused A-2, 4 and A-5 who were acquitted by the trial court, was that, on 25-9-1982 at 6.00 p.m. in the village Kanjithazhianthel, they formed themselves into an unlawful assembly to cause the death of the deceased Kuttikuthirai alias Thuninjaram, aged 45 and armed themselves with deadly weapons and in furtherance of the common object, the first appellant caused the death of the deceased by beating him on the head with a crowbar and the second appellant as well as the acquitted accused persons were members of the unlawful assembly, sharing the common object and that the second appellant caused hurt to P.W. 2, the wife of the deceased. Against the first appellant, charges u/Ss. 148 and 302 of the Indian Penal Code were framed and against the second appellant u/Ss. 302 read with 149 and 324 of the Indian Penal Code.

(3.) The facts are briefly as hereunder : - P.W. 1 is the sister of the deceased, P.W. 2 is his wife and P.W.3 is his son. The acquitted accused A. 2 and A.4 are husband and wife and the first appellant is their son and the second appellant their daughter. The fifth accused is the daughter-in-law of A.2 and A. 4 having married another son. The accused and the deceased were living in the village Kanjithazhianthel, in opposite houses. There was enmity between the two families. West of their houses, there was a tank with a pathway leading to the tank on the eastern bund. A. 2, the father of the appellants, had encroached some lands north of this pathway and had put up a kitchen shed their. The deceased had encroached some land, south of the pathway and was in possession of the same. On 25-9-1982 at about 6.00 p.m. the deceased was returning home with his cattle after ploughing his field. When he came near the pathway in the tank bund, he found that it was closed with thorny bushes. He removed the thorny bushes and came to his house through the pathway. On reaching his house, he tied his bulls in front of his house. A. 2, the father of the appellants, questioned the deceased as to how the deceased could remove the thorny bushes he had put in the pathway to close it. The deceased replied that never before had that pathway been closed and that thinking that some thorny bushes were just lying there, he had removed them and had brought his bulls through the pathway. A. 2 retorted as to how the deceased could remove the thorny bushes when he had closed the pathway and also questioned as to how the deceased could tie the bulls there. The deceased replied that he had tied his bulls in his place only and that therefore, he would not untie the bulls. So saying, the deceased went inside his house. The other accused also were there, the first appellant armed with an iron crowbar, the second appellant with a wooden rice pounder, A. 2 a wooden plank, A. 4 a broomstick and A. 5 a stick. All the accused abused the deceased in filthy language and threatened to murder the deceased. P.W. 1 sister of the deceased pleaded with them not to attack the deceased. The appellant and A.2 asserted that they would beat the deceased to death. P.W. 1, who was living in a separate house about 60 feet away asked the deceased to come to her house. The first appellant stated that if the deceased came out, he would be done to death in the very same place. The doorway of the house of the deceased was a low one and one had to bend while passing through it. The deceased stepped out of his house bending low. At that time, the first appellant with a crowbar beat the deceased on the centre of the head. The deceased fell face downwards, his tongue protruding. A. 2 beat the deceased on the nape of the neck twice with the wooden plank. While A. 2 tried to beat the deceased with a ricepounder, P. W. 2, the wife of the deceased intervened and the blow fell on her right arm. A.4 and A.5 caught hold of the tuft of P.W. 2 and dragged her and pushed her down. Thereafter, the appellants and the co-accused left the scene with their weapons. "Kuttikuthirai" was dead. P.W. 1 went to the Police Station at Kilathuval, 10 kilometres away and at 10-30 p.m. gave Ex.P. 1statement to P.W. 8 the Sub-Inspector of Police, who registered it as Cr. No. 75 of 1982 of his station for offences u/Ss. 147, 148, 324 and 302 of the Indian Penal Code. On express intimation being sent to the Inspector of Police P.W. 9, he took up investigation. P.W. 9 visited the scene of occurrence, prepared an observation mahazar, seized the blood stained articles, held inquest and examined witnesses. P.W. 2 was sent for medical examination.