THOPPILIYA ALLI RAJA Vs. STATE

JUDGEMENT

(1.) The first accused in a case of murder, who stood charged along with two others ranked as A2 and A3, has brought forth this appeal challenging the conviction and sentence imposed by the learned Principal Sessions Judge, Salem, wherein the accused No.1 was sentenced to undergo 5 years R.I under Section 304(2) I.P.C, while the other accused Nos.2 and 3, who were found guilty under Section 324 IPC and sentenced to pay a fine of Rs.500/- each, have not preferred any appeal.

(2.) The short facts necessary for the disposal of this appeal can be stated thus: a) The deceased Sandakuppan was living in a Pekkattu Pudur. P.W.2 Chinnasamy and Venkatachalam are his sons. Accused Nos.1 and 2 were residing in the same village. A3 is the father of A1 and A2. The deceased and A3 were co-brothers. There was a dispute between the parties in irrigating the lands. b) On 9.5.1994, there was a wordy quarrel regarding taking water. A1 wanted to have the entire water and so saying he was diverting the same to his field. The deceased has stated that it was already decided in the Panchayat, and hence, the accused was not right in diverting the water. At about 6.00 p.m., P.W.1 came there and pacified them. At that time A1 and A2 came over there. A1 took a stone and attached the deceased in the right front. A2 and A3 had also pelted stones on the deceased, which felled on the right shoulder of the deceased. This was witnessed by P.W.2 and his brother Venkatachalam, who was standing 30 feet away in the same field. They came to the rescue of the deceased. On seeking this, A1 went to his house, brought Koduval and attacked the deceased on both sides of the forehead, both sides of the ribs and right thigh. A1 throw a stone on P.W.2 which fell on his right leg. Again A2 throw a stone, which fell on the left wrist of Venkatachalam. When they raised alarm, all the accused fled away. c) P.W.2 and his brother had hide themselves in the forest for the entire night, went to the scene of occurrence on the nest day morning and found his father dead. On 10.5.1994 at 2.00 p.m. The Police came and sent P.W.2 and his brother to Rasipuram Hospital. At that time, P.W.2 came to know that P.W.1 had given a complaint to the police. P.w.10, the Sub Inspector of Police, Mr.Rajamanikan attached to Vazhavandhi Naadu Police Station, received a complaint Ex.P.12 from P.W.1 on 10.05.1994 at about 11.30 a.m. On the strength of the same, he registered a case in Crime No.53/1994 under Sections 302 and 324 IPC. Ex.P.13 is the printed F.I.R., which was despatched to the concerned Court. P.W.11 Gunaseelan Inspector of Police of Senthamangalam Circle on receipt of the telephone message, went to the site of occurrence and received F.I.R from the Sub Inspector of Police. He took up investigation and he made observation in the presence of the witnesses. Ex.P.5 is the observation mahazar and rough sketch was marked as Ex.P.14. He examined the witnesses and recorded their statements. He seized MO1 series-Stones, MO3 Blood stained earth, MO4 sample earth under Ex.P.6 Mahazar and the same was attested by P.W6 and one more witness. After making inquest, he prepared a report in the presence of the witnesses. He sent the body for postmortem through PW9 Manilal Constable. PW3 Dr.Manoharan, on receipt of the requisition, conducted post-mortem on 11.5.1994 and has given post-mortem certificate under Ex.P.2, wherein the following external injuries are found: 1. An abrasion on the left side of back of scalp 3 x 2 cm with blood clots. 2. A contusion on front of right shoulder black in colour 3 x 2 cm. 3. A contusion in front of right upper arm 3 x 2 cm. 4. A cut injury above left eye brows 3 x 1 cm x bone deep 5. A contusion on left collar bone 2 x 2 cm 6. A cut injury 3 x 2 x 1 over left side chest 4 cm below left nipple. 7. A contusion 3 x 2 cm right side of chest 3 cms below and behind right nipple 8. A piercing cut injury on the inner side of right thigh 4 x 2 x bone deep with blood clots. The Doctor has opined that the deceased would appear to have died off 36-40 hours prior to autopsy due to shock and haemorrhage, due to multiple injuries. The injury Nos.4,6 and 8 could have been caused by a sharp koduval and the contusions could have been caused by the stones MO1 series. Injury No.8 is sufficient to cause death. d) P.W.4 Dr. Madhavan examined P.W.2. Ex.P.3 is the accident register copy and the injuries are simple in nature. P.w.7 is the Photographer, who took MO5 series 2 photographs at the scene of occurrence and the negatives were MO6 series. On requisition, MOs were sent for chemical analysis. The forensic and serologist report are Ex.P.9 and Ex.P.10. On completion of the investigation, the Investigating Officer has laid a charge sheet.

(3.) In order to prove the charges levelled against the accused, the prosecution examined 12 witnesses and 15 exhibits and 7 MOs. On completion of the evidence of the prosecution, the accused were questioned under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. The photograph was marked as Ex.D.1. No defence witnesses were marked. On consideration of the rival submissions made and scrutiny of the materials available, the trial court found A1 guilty under Section 304(ii) IPC, while A2 and A3 were found guilty under Section 324 IPC and A1 was sentenced to undergo imprisonment as stated above. Hence, A1 has brought forth this appeal.