AROKIAM Vs. STATE

JUDGEMENT

(1.) Arokiam and Gnanaselvam, the appellants herein were convicted for the offence under Section 302 read with Section 34 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- each. Challenging the same, the appeal has been filed.

(2.) The facts leading to conviction are as follows: " (a) A.1 Arokiam is the younger brother of A.2 Gnanaselvam. Their father Innasimuthu and the deceased Chinnappa are the brothers. The deceased is the junior paternal uncle of the accused. The accused were residing in Watrap Pudupatti village. The deceased Chinnappa along with his son Selvaraj was residing at Sethur, a small town. (b) The disputed property is a hut belonged to Innasimuthu father of the accused. After his death, the said hut was in possession and enjoyment of the accused and their mother Ranjitham. The deceased claimed that the said hut belonged to him. Therefore, he asked the accused to vacate the hut, in order to give possession of the said hut to his son James. However, the accused refused to give possession stating that the property belonged to them. c) The deceased gave a complaint to the Watrap Police Station and an enquiry was conducted by the police. After the enquiry, both parties were advised to settle the matter either through Panchayat or Civil Court. Though a panchayat was held, the accused did not oblige to the decision of the panchayatdars. The deceased Chinnappan brought building materials such as, sand and bricks and unloaded the same in front of the hut, in order to put up a new construction after demolishing the hut. On 5.1.1997, the deceased party approached the local Nattanmai and sought his assistance to take possession of the hut from the accused. Even then, the accused refused to hand over possession. d) The occurrence took place on 6.1.1997. At about 7.45 a.m., the deceased along with his son P.W.1 Selvaraj and P.W.5, Ponraj, a carpenter came to the scene of occurrence. They were armed with hammer, Padlock, iron nails, cutting-plier, aruval and coconut reepers. At that time, Ranjitham the mother of the accused, was inside the house. The accused were having a petty shop in front of the house. e) P.W.5 Ponraj, the carpenter put the lock in the hut and tried to patch the reeper. Noticing this, A.1 objected stating that that was a family dispute between the accused and their junior paternal uncle and so, he could go away. Accordingly, P.W.5 went away and the deceased himself came in front of the house and patched one reeper on the door. (f) On seeing this, A1 and A.2 who were in the shop, shouted and questioned the act of the deceased. Therefore, the deceased went in front of the petty shop with M.O.3 hammer and questioned the accused as to how they could obstruct them as the house was belonged to him. P.W.2 Arokiam, at that time came there for purchase of pickles and after giving the pickles to P.W.2, A.1 took M.O.1 aruval which was kept in the shop and came near the deceased and gave a cut on the right leg of the deceased. A.2 took the aruval which was found in front of the hut and gave a cut on the head of the deceased. P.W.2 intervened, but he was threatened by the accused and both the accused gave indiscriminate cut on the body of the deceased and the deceased warded off the cut, with the result, he received cut on the hands also. The deceased due to the injuries, fell down on the ground and died on the spot. Then the accused ran away from the scene of occurrence with the weapons. (g) On the advice of the local Nattanmai, P.W.1 rushed to Watrap Police Station and gave a complaint to P.W.10 Sub-Inspector of Police at about 8.30 p.m. Ex.P.1 is the complaint and Ex.P.16 is the F.I.R. (h) On receipt of the message, P.W.11, Inspector of Police took up the investigation and proceeded to the scene of occurrence. He prepared Ex.P.19 rough sketch. He recovered M.O.3 hammer, M.O.4 reepers, M.O.5 padlock, M.O.9 cutting-plier, M.O.12 blood-stained earth, M.O.13 sample earth, etc. He conducted inquest on the body of the deceased. He prepared the Ex.P.20 Inquest Report. During the course of inquest, he examined P.Ws.1 to 3 and others. i) Then the body was sent for post-mortem. P.W.7 Doctor on 6.1.1997 at 3.30 p.m. found as many as nine injuries. He opined that the deceased would appear to have died of shock and hemorrhage due to cut injuries sustained. Ex.P.9 is the post-mortem certificate. j) On the very same day, A.1 surrendered before the police and on his confession, M.O.1 aruval was recovered. On 9.1.1997, P.W.11 arrested A.1 and in pursuance of the confessional statement of A.1, M.O.1 aruval was recovered. Then he sent the requisition to the Court to forward the materials for chemical examination. He filed charge-sheet against both the accused for the offence under Section 302 I.P.C. k) During the course of trial, prosecution examined P.Ws.1 to 11, filed Exs.P.1 to P.22 and marked M.O.1 to M.O.20. l) When the accused were examined under Section 313 Cr.P.C., they simply denied their complicity in the crime. m) The trial Court accepting the prosecution case, convicted the accused for the offence, under Section 302 read with Section 34 I.P.C. and sentenced them thereunder. Challenging the judgment of conviction, both the accused has filed this appeal.

(3.) Mr. N.Mohideen Basha, learned counsel for the appellants would take us through the entire evidence and contend that the evidence of P.Ws.1 to 4 is quite artificial and would suffer from various infirmities and as such, their evidence cannot be relied upon. He would also point out from the evidence of the Investigating Officer, that the Inspector of Police came to the spot even prior to the receipt of the complaint given by P.W.1 and as such, the evidence of P.W.1 that he was present at the scene of occurrence at about 8.30 p.m. would not be true. Alternatively, it is submitted that even assuming that the entire case of the prosecution is true, the act of attack committed on the deceased by the accused is only by way of exercise of private defence and as such, the cause of death of the accused would not fall under Section 302 I.P.C. At the most, it would fall under Section 304 part-II I.P.C.