MATHY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Accused 1 and 2 in Sessions Case No. 94 of 1986 on the me of the learned Sessions Judge, Chengalpattu Division, have preferred this appeal challenging the legality and correctness of the conviction under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment of life and also under Section 324 of Indian Penal Code and sentence to undergo rigorous imprisonment for two years and both the sentences are to run concurrently.

(2.) These appellants along with eight others were tried for seven charges under Sections 147, 148, 302 read with Section 34, 302 read with Sections 149, 324 and 323 of the Indian Penal Code, on the allegation that accused 4 to 6 were members of an unlawful assembly along with accused 1 to 3 on 14.7.1985 at about 9.30 P.M., in accordance with the common intention of accused 7 to 10 to cause the death of deceased Kuriyachan near the office of the arrack business of the said deceased Kuriyachan and R.N.C. shop, in the junction of Ernavur-Kathivakkam High Road and Bajanai Koil Street at Ernavur, accused 1 to 3 were armed with deadly weapons, Vettu aruvals and in furtherance of common intention, first accused cut the ankle joint on the legs of Kuriyachan with Vettu Aruvai, second accused cut his left side back with Aruval and third accused cut on his right hand with VettuAruval, accused 5 and 6 hold the legs of the deceased and push him down and as a result of the same, the deceased fell upside down and during the course of the same transaction, accused 1 and 2 voluntarily caused cut injuries to the prosecution witness Santhanam by Vettu arruval and dangerous weapon and 4th accused caused simple hurt to the prosecution witness Santhanam. In support of the above charges, the prosecution examined P.Ws. 1 to 18 and marked Exhibits P1 to P23 and M.Os. Ito 11.

(3.) The case of the prosecution as revealed from the oral and documentary evidence and which are necessary for the disposal of this appeal can be briefly stated as follows: The deceased Kuriyachan along with accused 7,8,9 and one deceased Radhakrishnan, obtained licence for running the arrack shop and was running the same, prior to the occurrence and there were sub-partners under these five partners. P.W. 5 is one such a partner. The partners contributed various amounts and the total amount contributed by them was Rs. 41,00,000/-After the death of Radhakrishnan, his brother, the 10th accused became as partner. They were running the arrack shop along with the sub-partners and M.O. 6 series are the account books. P.W. 4 is the Cashier in the said partnership business. Accused 1 to 6 were employed in the workshops. The deceased Radhakrishnan and the 9th accused were having joint account in the Indian Overseas Bank at Thiruvotriyur and invested Rs. 10,44,114/-. After one of the partners Radhakrishnan was murdered, the faction consists of Narayana, developed ill-will and hatred towards the deceased. The deceased apprehended danger to his life and he gave a petition on 22.6.1985 praying for protection, to P.W.16, the Sub-Inspector of Police, Thiruvotriyur. P.W.16 entered the same in the general diary and he gave necessary orders for protection to the deceased. On 14.7.1985, P.W.2 who was employed under the deceased came to the deceased at about 8 A.M. and handed over the collection amount from the market shops and he demanded arrears of wages due to him. The deceased asked him to come to the office at Ernavur gate shop where he would be available. Accordingly, P.W.2 proceeded to that place. At about 7.30 P.M., on 14.7.1985, P.W. I along with his two brothers sons came from Triplicane to see one Dasaradan of Ennore and on the way he went to the State Bank Colony, Thiruvotriyur and approached the deceased who was known to him and asked him to lend a car for his journey. Since his car was in repair and the deceased also had to go to Ennore, he engaged the auto of P.W. 3. The deceased along with P.W. I and his two brotherTs sons, went in the auto of P.W. 3 to Ennore through beach road. Since Dasardan was not in the house, the deceased asked the auto driver to park his auto in front of Ennore Police station and went into the police station at about 8.45 P.M. and made enquiries about the Sub-Inspector from P.W. 14, the Constable and on learning that the Inspector had gone out he returned and thereafter, they all came to the office of the arrack shop at Eranavur gate, which is located at the junction of Kathivakkam High Road and Bajani Koil Street. P.W. 8 is employed in. a TeaT Shop which is at the junction and it is marked as D in the plan Exhibit P-iS. P.W. I and his two brotherTs_sons were waiting outside. P.W.2 has arrived already and also was standing there. The deceased, P.W. I and his brotherTs sons andP.W.2 all took tea in the tea shop. Near the Tea shop at the junction, Sodium light was burning. P.W. I sent his two brotherTs sons by train to their native village. The deceased said that he would send P.W. 1 to Triplicane. P.W. I and the deceased were standing near the Auto. P.W. 3 went to the Tea Shop to take tea. At that time, four persons came from the steps leading to the upstairs of the office of the arrack shop and among the four persons, accused 1 and 2 were having Koduval Kathi, M.Os. 1 to 3, fourth accused was having M.O. 4 Stick, First accused came near the deceased and attempted to cut him. P.W. I warded off the same and it fell on the right fore-arm of P.W. I and he sustained an injury. Second accused cut P.W. I on the right shoulder back side. Third accused aimed a cut on the deceased and when the deceased warded off the blow with his right palm and it caused a cut injury on his right palm. At that time, accused 5 and 6 came from the railway line and they slipped the legs of the deceased and the deceased fell down facing downwards. At that time, first accused cut him with the Koduval on the neck and shoulder and back side of the head. The injuries were bleeding and P.W. I got blood - stains. The brain came out from the head of the deceased. P.W. I came to the conclusion that the deceased died. P.W. I raised an alarm. Fourth accused beat him with M.O.4 stick on the left side of the back. P.W. I got frightened and ran along the kathivakkam road and reached the police station at about 10,00 P.M. P.W.1 reiterated the matter to P.W.17, the Sub-Inspector of Police and he recorded the statement Exhibit P-I, read over the same and obtained thumb impression. On the basis of Exhibit P-I, P. W .17 registered a case in Crime No. 304 of 1985 under Sections 147, 148, 341,323,324 and 302 read with Section 109 of Indian Penal Code, and prepared the Fast Information Report Exhibit P-6. He sent Exhibits P-I and P-6 to the Judicial II Class Magistrate by express tapal and the copies to the higher officials. P.W.17 along with P.W. I went to the scene place. P.W. 15 Inspector of Police who was returning to Ennore along the scene place after finishing his bandobusl work at about 10.15 P.M. saw the deceased lying in the pool of blood. He got the copy of the express report from the Constable and took investigation at 10.30 P.M. Meantime, P.W.17 came along with P.W .13, the Head Constable. He sent the injured P.W. 1 after examining him, along with P.C. No. 500, to the Stanley Medical Hospital. After inspecting the scene place, P.W.18 prepared the rough sketch and the observation mahazar,. Exhibits P. 15 and P. 16 respectively, attested by witnesses. Between 11 P.M. and 2 A.M., he held the inquest over the dead body in the presence of the panchayaldars and during inquest P.Ws. 2 to 4 and others were examined. Exhibit P.7 is the inquest report prepared by him. He recovered M.O.7, the blood stained earth and the sample earth, M.O.8 from the scene place under mahazar Exhibit P-17 attested by witnesses. He called the Photographer P.W. 16 to take photographs M.O.11 series of the scene place. After completing the inquest, he handed over the dead body to P.W.13, Constable, for being taken to the Stanley Hospital with the request Exhibit P-12 to the Medical Officer for atopsy. Thereupon, he examinedP.W.8, P.W.14 and P.W.16 and made arrangements for securing the accused. P.W.11, the Medical Officer/Civil Assistant. Surgeon, who was on duty in the causality ward in the Stanley Government Hospital and at about 11.55 P.M: no examined P.W. I who was brought with a memo by P.C. No.500 for certain injuries said to have been caused by four unknown persons at 9.30 P.M. on the same day, i.e., 14.7 .1985 and he found on him a cut injury on the right fore-arm above the wrist measuring about 5 cm. x 3 cm. and big cut injury on the right shoulder and X-Ray of the right shoulder was taken and he was admitted as inpatient. Exhibit P-b is the Accident Register Extract. According to the opinion, of the Word Doctor P.W.11, the injuries are grievous in nature. Exhibit P.11 is the opinion of the Doctor. According to him, the injuries could have been caused due to cut with a knife like M.Os. I to 3 at the time alleged. P.W. 12, Dr. Sulochana, Professor of the Stanley Medical College Hospital; in pursuance of requisition Exhibit P.12 received from the Inspector P.W.18, conducted atopsy over the dead body of Kuriyackan at about 11.40 A.M. on 15.7.1985 and she found the following external injuries: