L LAKSHMANAN Vs. V P LAKSHMISAMI

JUDGEMENT

(1.) THE accused was convicted by the trial court but in the appeal he was acquitted. As against that acquittal a private party viz. , the complainant has preferred this criminal revision case.

(2.) THE accused stood charged under Sec. 307 of the Indian penal Code and Sec. 27 of the Indian Arms Act. THE prosecution is as follows: the accused V. P. Lakshmanasamy was residing in Door No. 30, Kannaiyan Street , Karungalpalayam. On the eastern side of it there was a land bearing Door Nos. 27, 28 and 29. In respect of this land there was a dispute between the accused and Lakshmanan, the complainant. THE complainant Lakshmanan obtained an order of injunction from court against the accused restraining him from disturbing his possession of the said land and he also obtained police protection. THE complainant began construction a shed there and a compound wall around it. On 28. 12. 1986 at about 8. 50 a. m. while the complainant was watching the progress of the said construction work the accused from his house fired at him four rounds with 0. 22 riffle. While three pellets passed above his head and hit at the leaf of a palmyrah tree behind, the fourth pellat struct at his left hand and pierced through it. At that time among other workers there was P. W. 2 Arumugham, and P. W. 3 and 4 police constables. P. W. 3 took the injured to karungalpalayam Police Station which was half-a-furlong away. THE complainant gave a complaint Ex. P. 1 and the sub Inspector P. W. 11 registered it at 9. 00 a. m. THE Sub Inspector sent the injured complainant to Erode Government Hospital for treatment. P. W. 5 Dr. Ayyavo, at 9. 40 a. m. examined the injured and found in his left arm just above the elbow joint a gun shot entry would of 1/2 x 1/2 cm. and exit would of 3/4 x 3/4 cm. At 9. 45 a. m. the Inspector P. W. 14 took up investigation of the case and went to the house of the accused at 10. 15 a. m. and there in front of the house he arrested the accused, the then he made a search of the house. In the first floor eastern room and below the eastern window he found 63 live pellets and 4 used pellets and a telescope (M. O. 13)and seized them. He prepared an observation mahazar Ex. P-10. He caused photographs to be taken of the house of the accused from different angles. At 1. 15 p. m. from the land of the complainant he recovered 3 used pellets. On 8. 1. 1987 on information the Inspector went to the field of the accused in Periyar Agraharam and there from inside a bay rick he recovered M. O. 10 double barrel gun. He sent the recovered pellets and the gun to the ballistic expert and obtained his opinion. On completion of the investigation he filed charge sheet under Sec. 307, I. P. C. and Sec. 27 of the indian Arms Act.

(3.) ON going through the materials on record I am unable to agree with this submission. In the complaint Ex. P-1 it is stated that the accused went to maadi' ' and from the eastern side of it shouting that the complainant would die, he shot at him. It is not in dispute that in the house there is a first floor and then there is an open terrace. The word' 'maadi' 'means both the first floor, and also the terrace, but it is argued on behalf of the accused that if it was the open terrace the complainant would have stated' 'Mottai maadi' '. It is admitted that there were no steps to the open terrace from the first floor. None of the witnesses have spoken about any steps. However when the inspector P. W. 14 stated that he went to the terrace to inspect it was asked how he went up and then he stated that he went up by means of an iron ladder. In the terrace he did not find anything. There was absolutely no trace whatsoever that the fire was from there. But he found in the first floor 4 used catridges and 63 live catridges lying on the floor near the eastern window.