PANDIAN Vs. STATE

JUDGEMENT

(1.) These two Criminal Appeals are directed against the conviction and sentence passed in S.C.No.104 of 2014, dtd. 27/8/2019, on the file of the learned Additional District and Sessions Judge (Fast Track Court), Theni.

(2.) On 10/9/2013 at about 04.00 a.m., based on the complaint given by Alageswari [P.W.1], Nanjilkumar [P.W.23], Sub-Inspector of Police, Chinnamanur Police Station has registered a case in Crime No.265 of 2013 under Sec. 302 I.P.C. As per the complaint, one Muthiah, husband of Alageswari [the informant] while sleeping on the Pyol of the Tea shop owned by one Muthulakshmi, two persons, by name, Palpandi, S/o.Muthalappan and Pandian, S/o.Thanuskodi, the residents of Muthusamipuram Village attacked Muthiah and pushed him down, took a stone, covering the drainage hole near the house of Prabhu [P.W.16] and crushed the head of Muthiah, causing his death. On hearing the scream, his wife Alageswari [P.W.1] and daughter Santhiya [P.W.2] rushed to the spot, saw the assailants throwing the stone on the head of Muthiah and causing crush injury. This incident alleged to have occurred at 01.30 a.m. in the morning.

(3.) The learned counsel appearing for the appellants at the outset submitted that while the charge against the accused persons was for the offence under Sec. 302 read with Sec. 34 I.P.C., the sentence imposed on them by the trial Court for the offence under Sec. 302 read with Sec. 149 I.P.C., which is per se illegal and reflection of non-application of mind by the trial Court. That apart, the learned counsel for the appellants submitted that P.W.1, the wife and P.W.2 ,the daughter of the deceased claim to be the eyewitnesses to the occurrence. However, through the cross-examination, it has been elicited that on the date of occurrence, the Village was celebrating Vinayagar Chaturthi festival and the entire Village was bubbling with activity. While so, P.W.1 and P.W.2, who were residing in a far off place, could not have heard the scream. The alleged occurrence has occurred at 01.30 a.m. during wee hours. The complaint registered at 04.00 a.m. Whereas the express F.I.R. [Ex.P. 16] reached the learned Judicial Magistrate only at 12.20 p.m. When the distant between Chinnamanur Police Station and the Judicial Magistrate Court is only seven kilometers, the delay of more than eight hours to forward the express F.I.R. is inordinate and unexplained. Ex.P.1 complaint stated to have been reduced into writing by Selvakumar [P.W.13] on the dictation of Alageswari [P.W.1]. Selvakumar [P.W.13], who has affixed his signature in the complaint, identified it as his signature in Ex.P.7. Selvakumar [P.W.13], who is a Teacher by profession, who wrote the complaint, in his chief-examination has categorically stated that he went to the spot between 06.30 a.m. and 08.00 a.m. on 10/9/2013 on hearing the death of Muthiah. At that time, Alageswari [P.W.1] was weeping and asked him to write the complaint. Hence, on her dictation, he wrote the complaint and affix his signature as witness. In the cross-examination, he has reiterated that the complaint [Ex.P.1] was written by him on 10/9/2013 between 06.30 a.m. and 08.00 a.m. While so, it is contended by the learned counsel for the appellants that the case of the prosecution that Alageswari [P.W.1] went to the Police Station at 04.00 p.m. and gave the complaint [Ex.P.1] is highly improbable.