AMMASAI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) 1. R.T.No.1 of 1993 has come up before us on a reference made by the learned Sessions Judge of Nilgiris, Ootacamund, for confirmation of the death sentence awarded to the accused 1, 2 and 4 under Sec.366(1) of the Code of Criminal Procedure in S.C.No.23 of 1988 on his file. Criminal Appeal No.380 of 1993 has been preferred by the accused 1 to 10 and 14 challenging the legality and correctness of the conviction and sentence awarded to them in the abovesaid case. The accused were convicted and sentenced by the learned Sessions Judge as under: A-1 Section Period of rigorous imprisonment 120-B, I.P.C. three years; 148, I.P.C. six months; 326 read with 149, I.P.C. three years; 201, I.P.C. and 302, I.P.C. (two counts) three years; A-1 sentence of death imposed upon him. A fine of Rs.10,000 was also imposed for each section and in default of undergo rigorous imprisonment for three years; A-2 Section Period of rigorous imprisonment 120-B, I.P.C. three years; 148, I.P.C. six months; 326 read with 149, I.P.C. three years; 201, I.P.C. three years The substantive sentences of imprisonment were directed to run concurrently. 302, I.P.C., in respect of death of Nallamayan, and 302, I.P.C., read with 149, I.P.C., in respect of the death of Ochappan sentence of death has been awarded and a fine has also been imposed, in default to undergo rigorous imprisonment for three years;

(2.) THE case of the prosecution as disclosed from the oral and documentary evidence can be succintly stated as follows: A-2 and A-3 are sons of A-1. A-4 is the aunt's son of P.W.2. THE rest of the accused are the associates of A-1 to A-4. All the accused are illicit distillers and thereby they are closely associated to each other.P.W.1, P.W.2, D-1 Nallamayan and D-2 are also illicit distillers. Hence they were also associated with each other. P.W.1, P.W.2, D-1 and D-2 are residents of Thummanathi at Ootacummund. P.W.1, is the son of the P.W.2. THEy were carrying on illicit business in the village since the arrack business was not flourishing in that village, D-1 Nallamayan decided to shift the illicit arrack business to Sholur and inspected the said place for trade. But A-1 and A-4, who were carrying on the illicit arrack business in that area by manufacturing the same came to beat D-1. D-1 requested them to permit him to distill illicit arrack at Sholur for which A-1 and A-4 refused and they threat ened the deceased Nallamayan D-1 to run away from the Village. THEreupon P.W.1, D-1, D-2 and one Pandit met A-1 Ammasi and requested him to allot a separate place for them to sell I.D. arrack. But A-1 immediately came to beat them. Enraged by this, P.W.1, D-1, D-2, Pandi and others went to Sholur village and requested P.W.3 Sundarrajan to show the place where A-1 Ammasi and A-4 Thangaraj were carrying on the manufacture of illicit arrack. Accordingly P.W.3 took them to the place where they were distilling arrack. P.W.1., D-1, D-2 and Pandi and others destroyed the entire apparatus used for distilling I.D. arrack and the molasses available on the spot. On 23.2.1988. A-1 sent word to P.W.1., P.W.2, D-1 and D-2 through the messenger that they were entering into a compromise. Accordingly on 25.2.1988, P.W.1., P.W.2, D-1 and D-2 went to A-4 Thangaraj to have a settlement talk in his house at Ootaccummund. P.W.2 was standing outside. At about 9.30 a.m. when they went to the house of A-4, A-5 and A-6 were already there. A-4 convinced P.W.1., P.W.2, D-1 and D-2 that there should not be any fight between them and their disputes can be settled by meeting A-1 Ammasi, who was at Sholur. At that time A-5 and A-6 were frequently going outside the house of A-4 and coming back into his house. A-4 Thangaraj requested A-5 Muniyandi to bring a taxi and accordingly A-5 brought a taxi bearing registration No.6664. P.W.1, was the taxi driver. P.W.1, P.W.2, D-1 and D-2, A-5, A-6 and A-4 got into the taxi and the taxi proceeded towards Sholur. While the taxi was near the junction of Sholur, A-4 told to P.W.1. Murugan, P.W.2 Mayandi, D-1 and D-2 that "how dare your people have destroyed my apparatus for distilling and also the molasses. Immediately A-5 and A-6 shouted that these people must be taught a suitable lesson. THE taxi went away by 1 km. for Sholur junction. A-1 to A-3, A-8 to A-10, A-14 and others came running and waylaid the taxi. A-4 got down from the taxi first and instigated the accused by saying that all of them should be pulled down and killed. On hearing the same, P.W.2 got down and ran away. A-1 cut D-1 on his head and forehead with aruval which he has having in his hand. When D-1 attempted to run away, A-2 cut him with an aruval on the leel of D-1 which he was having in his hand. When D-1 attempted to wrest and ran A-14 beat him with iron pipe on the right shoulder. D-1 fell down. THE rest of the accused also beat D-1.

(3.) A-3 cut P.W.1 on his head, A-9 beat P.W.1 with a stick on his head. A-3 cut P.W.1 with M.O.3 aruval on his head. The accused dragged P.W.1., D-1 and D-2 into the solai(Garden)and throw them there and thereupon left the place. About 10 minutes after the accused left the scene place P.W.1 got up and noticed D-2 was lying unconscious and D-1 was lying dead. According to him, the occurence took place at about 10.30 a.m. Thereupon he rushed to the Government Hospital, Ooty by bus. At about 5 p.m. The Sub-Inspector of Police came to the hospital and enquired him and he gave a statement. Since he was not able to affix the signature he affixed his thumb-impression. The wound on the hand was bandaged as it was bleeding. P.W.16 Head Constable attached to the Oota-camund Police station received an anonymus telephonic information at about 12.45 p.m. on 25.8.1988 that there was a quarrel on the way to Sholur and on receipt of the information he made entry in the General Diary and informed the same to the Sub-Inspector over phone. P.W.19, the Sub-Inspector of Police attached to the town police station at Ooty. On receipt of that telephonic message reached the police station and sent the Head Constable and two other constables to the scene place near Sholur immediately. Thereupon, he went to the Government hospital on learning that one of the injured had gone to the Government hospital. On reaching the hospital P.W.19 was informed that P.W.1 was taken to the operation theatre and he waited till the operation was over and at about 5.30 p.m. he met P.W.1 after the operation was over and recorded the complaint, Ex.P-1. Thereupon he returned to the police station and about 5.30 p.m., registered a case in Cr.No.30/88 and prepared the express report and copies and sent them to the court and the higher officials P.W.20, the Inspector of Police received the first information report on 25.2.1988 at about 6 p.m. and took up investigation, with the help of the petromax light he went to the scene place along with the Sub-Inspector, P.W.19 and the police party in a jeep. The Inspector then prepared the rough sketch, Ex.P-30. He came to know from P.W.16 that one of the injured was lying at the scene place and it was he who sent him to the Government hospital. About 10 feet from that place a dead body was lying. He held in question D-1 and during inquest he examined P.Ws.2 to 3. Ex.P-31 is the inquest report prepared by him. Thereupon he sent the dead body with a requisition to the Medical Officer to conduct autopsy, through police constables. He seized M.Os.24 to 28 from the place where the dead body was lying under cover of a mahazar arrested by witnesses and thereupon he went straight to the Government Hospital, examined of P.W.1. and got his statement and also recorded the statement of P.Ws.2 to 4. He held inquest at the hospital over the dead body of D-2. Ex.P-32 is the inquest report prepared by him. P.W.5 the Assistant Surgeon attached to the Government Hospital, Ootacamund. In pursuance of the requisition Ex.P-2 received from P. W.20, conducted autopsy over the dead body of D-1 at about 11 a.m. and he found the following injuries: [After setting out the injuries His Lordship proceeded:] Ex.P-3 is the post-mortem certificate issued by him. According to him, the deceased would appear to have died of shock due to injury to vital organs. He was of the opinion that the cut as well as the tab injuries could have been caused due to the attack with a weapon like M.Os.1 to 3. The fractures and also injuries containing blood clot could have been caused by beating with a stick and the deceased could have died about 18 hours after the post-mortem examination. P.W.6, the Medical Officer attached to the Government Hospital, Ooty conducted the autospy over the dead body of D-2 (Ochappan) on 26.2.1988 at 10.05 p.m. In pursuance of the requisition received from P.W.20 he found on him the following injuries: Details of injuries omitted. He was of the opinion that the deceased would appear to have died of extensive injuries to vital organs viz., laceration in left lobes of the brain. Ex.P-5, is the post-mortem certificate issued by him. He was of the further opinion that the stab injuries could have been caused due to the stab by a weapon like M.O.1. The fracture of the bone on the brain could have been caused by beating with the sticks. On account of the fracture of the bones the possibility of the blood clots also was there. P.W.7, is the police photographer attached to Nilgiris police station. On requisition from the Inspector of Police, P.W.20, he took photos of the scene place on 25.2.1988 at 6.30 p.m. M.Os.11 to 15 are the photos and M.Os.16 to 20 are the negatives. M.O.21 is the negative of the photo of D-2. P.W.10 is the Medical Officer attached to the Government Hospital, Ooty. It is his evidence that at about 1 p.m. P.W.1. reported to him that he was attacked by twenty persons by sticks, knief and aruvals on the same day at about 10.30 A.M. near sheep farm. He examined P.W.1. and found on him the following injuries: [Details of injuries omitted-Ed.] 4. When the accused were examined under Sec.313, Crl.P.C., with regard to the incriminating circumstances appearing against them in the prosecution evidence they denied the prosecution case as false.