SAMPATH Vs. STATE

JUDGEMENT

(1.) This appeal is filed by the accused 1 to 4 in SC 23 of 1985 on the file of the learned Sessions Judge, Periyar at Erode, challenging the legality and correctness of the respective conviction and sentence, viz., conviction of accused 1 and 4 under S. 302 read with S. 34, IPC (two counts) and sentence of imprisonment for life for each count and under S. 324, IPC no separate sentence was awarded, while the 2nd accused under S. 324, IPC (two counts) and under S. 326, IPC to undergo R.I. for one year under each count for 324 and under S. 326 to undergo R.I. for 3 years, while A-3 was convicted under S. 323 and sentenced to undergo R.I. for six months; the sentences were directed to run concurrently.

(2.) These appellants were tried for four charges on the allegation that all the four accused on 17-8-1984 at about 5 p.m. on the cart track leading to Minnakkattupalyam Village, in pursuance of a common intention caused the murder of the deceased Chenniappa Gounder, (hereinafter referred to as D. 1) by A-1 cutting with an aruval, while A-2 hit him with an iron pipe and A-4 with the back portion of the spade. During the same transaction; they caused the death of one Nalla Gounder, hereinafter referred to as D-2, by A-1 cutting him with an aruval, by A-2 hitting with an iron pipe, by A-3 hitting with a cart peg and by A-4 hitting with a spade handle and further A-1 also cut Ponnayan with an aruval and A-2 hit him with an iron pipe with an intention to murder him and further in the course of the same transaction, A-2 hit Chenniammal with an iron pipe, and A-4 hit her with the back portion of the spade handle with intention to murder her also. In pursuance of the said act, all of them were liable for an offence under S. 302, read with S. 34, IPC (two counts) and S. 307, IPC read with S. 34, IPC (two counts).

(3.) To substantiate the above charges, the Prosecution examined P.Ws. 1 to 16, filed Exs. P-1 to P-22 and marked M.Os. 1 to 24. The case of the Prosecution as disclosed from the oral and documentary evidence can be succinctly stated as follows :- A-1 to A-3 are the sons of A-4. The deceased Chonniappan (hereinafter known as D-1) is the brother of P.Ws. 1 and 2. P.W. 3 is the daughter of P.W. 2. The deceased Nalla Gounder is the maternal uncle of D-1. They are all residents of Minnakattupalayam Village. The family of the deceased Chenniappan owns lands known as Ottankadu Thottam, while the accused own land known as Vaithirasu Kadu, a little away on the south of the land of the family of the 1st deceased. On the east of Ottankadu there is an odai which is running north-south. On the east of Ottankadu, a cart track was proceeding from north to south. The accused are claiming right through the cart track to reach their patta lands for taking their carts, etc. and the deceased Chenniappan and the members of the family were objecting to the same and in respect of the same A-4 who is the father of A-1 to A-3, filed a suit in O.S. 261 of 1983, on the file of the District Munsif's Court, Gobichettipalayam and obtained a temporary injunction and the proceedings are pending and due to the same, there was enmity between the two families. This is said to be the motive. On the day of the occurrence, viz., on 17-8-1984 at about 4 p.m. P.Ws. 1 to 3 and the deceased were in the Ottankadu Thottam. At that time, D-2 was grazing his goats on the eastern land. Then 1st accused attempted to take his double bullock cart wherein he was transporting manure to his patta land through the cart track in the patta land of the deceased Chenniappan. Chenniappan obstructed the 1st accused from taking the cart. Thereupon, the 1st accused drove the cart on the eastern side, untied the bulls and left the cart there. He proceeded towards west to the village and a little later, he returned to the scene place along with the other accused 2 to 4. At that time, A-1 was having an aruval while A-2 was having an iron pipe. A-3 picked up the cart peg from the cart, while A-4 took the spade from the cart. The 1st accused asked P.W. 1 to come and obstruct them if he can, though he has already obstructed while he was coming alone. When the deceased Chenniappan D-1 was approaching towards the cart, the 1st accused cut him on the head four or five times with an aruval and also on the back and shoulder. A-2 beat him with an iron pipe on the right side of the forehead. A-3 beat him with a cart peg on the back and shoulder four or five times. On receipt of the blows, D-1 fell down. Thereupon A-4 beat him with a spade on his head. P.Ws. 1 to 3 and D-2 Nalla Gounder raised a hue and cry and came running towards the place where D-1 was lying. At that time, A-1 questioned D-2 saying as to whether he was coming for the help, cut him on the head twice or thrice with an aruval, when D-2 warded off the cut, it feel on his hand. A-2 beat him with an iron pipe on the left side of the forehead, A-3 beat him with a cart peg on the back and neck, while A-4 beat him with a spade on the head. On receipt of the injuries D-2 fell down. Thereupon, A-1 cut P.W. 1 on his flank and left hand, right shoulder by saying that all these happened, because of P.W. 1. A-2 also beat him on the head with iron Pipe. P.W. 1 on receipt of the injury ran towards the east. A-2 also beat P.W. 2 with the iron pipe on the left elbow and left ankle, while A-4 beat him with a spade on the right shoulder and right hip. A-3 attempted to beat him and the said blow fell on A-1. Thereupon all the accused ran towards south with their respective weapons. P.W. 1 from the scene place directly went to Nambiyur Police Station and gave oral complaint at about 5-45 p.m. to P.W. 14, the Sub Inspector, who reduced the same into writing, read over the same and obtained the signature. Ex.P1 is the complaint given by P.W. 1. At about 5-45 p.m. on the basis of the said complaint, P.W. 14 registered a case in crime No. 198/84 under Ss. 302 and 307, IPC and prepared a printed FIR Ex.P. 19 to the Court and the higher officials. Then, he sent P.Ws. 1 and 2 with a memo to the Government Hospital for treatment of the injuries found on them. P.W. 5, the Civil Assistant Surgeon attached to the Government Hospital, Gobichettipalayam, examined P.W. 1 for certain injuries said to have been caused at 5 p.m. on 17-8-1984 due to assault by four persons with aruval, pipe and spade. He found the following external injuries :-