RAMAKRISHNAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Accused 1 and 5 in S.C. No. 38 of 1987 on the file of the learned Sessions Judge, East Thanjavur at Nagapattinam are the appellants. There were five accused in this case originally. Accused 2 to 4 were acquitted by the learned Sessions Judge. The first accused was convicted under Section 304 Part 11 of the Indian Penal Code and sentenced to undergo R.I. for six years. The fifth accused was convicted and sentenced under Section 323 of the Indian Penal Code to undergo R.I. for six months.

(2.) The case of the prosecution is as follows: On 29.9. 1 986 at 7 a.m., there was an oral altercation between the accused 1 to 5 and the deceased Rangaswamy at Moongilthottam Manmathan Koil Street opposite to the house of the deceased in connection with thorny fence and thereafter the accused formed themselves into unlawful assembly with intention to cause the death of the deceased Rangasamy came and created rioting possessing each Casuarinas stick and in the course of the same transaction, the first accused hit Rangaswamy, the deceased with the Casuarina stick on his head and Rangaswamy was taken to Thanjavur Medical College Hospital for treatment and he died there on 3.10.1986. The fifth accused was charged for an offence under Sections 34 and 302 of the Indian Penal Code along with the first accused and the accused, 2, 3 and 4 beat Ulaganathan, P.W. 1, with a Casuarinas stick and caused injuries on him. So the first accused was charged for an offence punishable under Sections 148 and 302 of the Indian Penal Code. Accused 2 to 5 were charged for an offence punishable under Sections 148, 302 and 149 of the Indian Penal Code. Accused 2, 3 and 4 were charged for an offence punishable under Section 323 of the Indian Penal Code. P.Ws. 1 to 2 were examined on the side of the prosecution and Ex. P. 1 to were marked and M. Os. 1 and 2 were marked. Accused have marked Ex. D-1 on their side.

(3.) On a careful scrutiny of the oral and documentary evidence, the learned Sessions Judge found that the accused 2, 3 and 4 had not committed any offence under Section 324 of the Indian Penal Code and so the trial Court acquitted them. The deceased Rangaswamy is the elder sister's husband of P.W. 1 and the deceased was living in the house of P.W. 1. Accused 2 to 5 were residing on the northern side of the house of P.W. 1 and the accused 2 to 5 are brothers and the first accused is the cousin of accused 2 to 4. There was a fence in between the house of P.W. 1 and the house of accused 2 to 5 and on month prior to the occurrence the fifth accused shifted the fence towards the house of P.W. 1 and the Bamboo tree in the house of P.W. 1 was leaning towards the house of the fifth accused. The fifth accused asked P.W. 1 and the deceased to cut away the same and since they refused to do, he said he would cutaway the same. In respect of this there was a wordy quarrel between P.W. 1 and the deceased and also the accused. The occurrence had taken place at 7 a.m., on 29.9.1986. The fifth accused told the deceased that the deceased should cut away the leaning Bamboo tree, otherwise he would cut and throw it away for which the deceased replied that he would not cut away and the fifth accused should not also do that. On hearing this, accused 1 to 4 came and joined with the fifth accused and they abused the deceased. The deceased also in turn abused them. The first accused got angry and he took out a firewood from the firewood depot belonging to P.W. 6 and beat on the head of the deceased only once. Then blood came out of the head profusely. The fifth accused took a firewood and beat the deceased on his right shoulder and left waist. To prevent this, P.W. 1 came there. Accused 2, 3 and 4 each took a firewood and beat P.W. 1 on his back, left shoulder, right elbow and left hand. Similarly the third accused also beat P.W. 1 indiscriminately and P.W. 1 beat the first accused on his head and the fifth accused on his hand. As a result of which accused 1 and 5 sustained injuries. P.W. 1, P.W. 4, P.W. 2 (son of the deceased) P.W. 5 (wife of the deceased) and P.W. 3 working in the firewood depot made out a cry and the accused dropped the firewood on the spot and ran away. The firewood used by them are M.O. 1 series. The prosecution has explained away the injuries found on the accused 1 and 5 by stating that while the third accused was beating P.W. 1, accused 1 and 5 got injuries by slip. This is evident from the testimony of P.Ws. 2 to 5. P.Ws. I to 5 are the eye witnesses according to the prosecution, P.W. 6s evidence is that at about 11 a.m., after the occurrence on 29.9.1986, the head constable of Myladuthurai Police Station came there and prepared an observation mahazar Ex. P-2 and he seized three firewood under the mahazar Ex. P-3, and they are M.O. 1 series and P.W. 6 attested the mahazar. P.W. 1 took Rangaswamy to the Myladuthurai Police Station which is three miles away from place of occurrence, and gave report, Ex. P.1, regarding the occurrence that took place at 8.30 a.m. The head constable, P.W. 11, now the Sub Inspector of Police recorded the statement of P.W. 1 and obtained his signature on the same. Then he registered a case under Cr. No. 1416/86 under Sections 147, 326 and 323 of the Indian Penal Code under Ex. P.11, the First Information Report. He sent the deceased and P.W. 1 with amount for treatment to the Government Hospital, Myladuthurai. He went there and examined the deceased and obtained a statement under Ex. P. 12. this was subsequently marked as dying declaration since Rangaswamy died later on. He prepared the mahazar, Ex.P. 2 and seized M.O. 1 series three firewood under Ex.P. 3 mahazar and Ex. P. 13 rough sketch prepared by him. Then he examined P.Ws 2 to 5. At about 7 p.m., on the same night, he arrested the accused 2, 3 and 4 and remanded them to judicial custody. On 29.9.1986 at 8 a.m., accused 1 and 5 appeared before (he Police and gave a report, Ex: P. 14. Since their report Ex. P. 14, did not disclose a cognizable offence, a case was not registered immediately and Ex. P. 14 was treated as a petition and this petition was also enquired along with the First Information Report in Cr. No. 1416/86. Accused 1 and 5 were sent to the Government Hospital with a memo for treatment, by the Police. The report Ex. P. 14, given by the first accused was found to be not true and so it was closed. On 3.10.1986, a memo was received from the Government Medical College Hospital, Thanjavur, to the effect that the inpatient Rangaswamy died at about 10 p.m. It is under Ex. P. 15. Then the case was changed into one under Section 302 of the Indian Penal Code and express report under Ex. P. 16 was sent to the higher officials and the Court. P.W. 12, Sub Inspector of Police, law and Order, took up the investigation and he verified the statement recorded by P.W. 11 and he too further examined those witnesses. P.W. 7, the doctor in the Government Hospital, Myladuthurai, examined Rangaswamy and P.W. 1 when produced with a memo by the Police and he also examined accused 1 and 5 for the injuries sustained by them and issued wound certificates. P.W. 7 examined the deceased at 8.30 a.m., and he was informed by the deceased that he was attacked with Casuarinas stick, According to P.W. 7, the deceased was conscious. P.W. 7 noted three injuries on the deceased and after giving him first aid, he recommended the deceased to be treated by Thanjavur Medical College Hospital. Ex.P. 14 is the wound certificate regarding the deceased given, by P.W. 7 and according to him the first injury is grievous in nature and the other injuries are simple in nature. At about 9 a.m., on the same day, P.W. 7 examined P.W. 1 and P.W. 7 says that P.W. 1 told him that he was attacked with a Casuarinas stick. Two injuries are found on him and Ex.P. 5 is the wound certificate for P.W. 1. At 8.20 a.m. on the same day, P.W. 7 examined the first accused and found three injuries on him and issued wound certificate under Ex. P. 6. P.W. 7 examined A-5 also and he found two injuries on him and issued Ex. P. 7 wound certificate. Rangaswamy was admitted as an inpatient in the Government Medical College Hospital, Thanjavur, at 12.30 p.m., on 29.9.86 and in spite of the treatment, Rangaswamy died at 7.45 p.m. on 3.10.1986. A memo was given by P.W. 8 to the Police. The Inspector of Police conducted inquest and his report is Ex. P. 17. The inspector office examined P.Ws 1, 3 and 4 and he examined P.W. 5 also. P.W. 9, Dr. Gopal-krishna Reddy conducted post-mortem and he found three injuries on the deceased. The third injury on the head of the deceased is grievous in nature, according to P.W. 9. Ex. P. 9 is the post-mortem certificate and injury No. 3 according to him is sufficient to cause death in the ordinary course of nature. P.W. 12, the Inspector of Police arrested accused 1 to 5 on 6.10.1986 at 7.30 p.m., and remanded them to judicial custody. After completing the investigation, charge sheet was filed against the accused on 22.2.1987 in the Court. The accused when questioned under Section 313 of the Criminal Procedure Code with regard to the incriminating circumstances found against them, they pleaded not guilty and denied the charge. Accused 2, 3 and 4 placed that they were not at all present at the place of occurrence. According to the first accused, it was P.W. 1, who hit the first accused on his head with the Casuarina stick, that the deceased pushed the first accused to the ground. P.W. 1 beat the first accused on his left elbow. 5th accused beat P.W. 1 with a firewood and the accused 1 and 5 beat P.W. 1 indiscriminately and while doing so one of the beatings fell on Rangaswamy and he sustained injury as a result of it and the evidence of the first accused is that he did not beat the deceased and that P.Ws. 1 and 5 are deposing falsely. Further, according to them, the three accused did not beat P.W. 1 and the beating of P.W. 1 fell on the accused I and 5 by slip and thereby accused 1 and 5 sustained injuries.