SELVAM ALIAS SELVAKUMAR Vs. STATE

JUDGEMENT

(1.) THE appellants are A-1 to A-5. A-1, A-2, A-4 and A-5 were convicted for the offence under Section 302 read with 149 IPC and each sentenced to undergo life imprisonment. A-2 was also convicted for the offence under Section 307 IPC and sentenced to undergo ten years rigorous imprisonment. A-3 was convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment. A-4 was also convicted for the offence under Section 326 IPC and sentenced to undergo seven years rigorous imprisonment. A-5 was also convicted for the offence under Section 324 IPC and sentenced to undergo three years rigorous imprisonment. Challenging the said conviction and sentence, this appeal has been filed by the appellants/a-1 to A-5.

(2.) SHORT facts leading to conviction are as follows: (a) P. W. 1 Raja and P. W. 2 Kannan are the sons of Babu naidu, the deceased. P. W. 3 Venkatesan is the brother of the deceased. P. W. 4 tmt. Balamani is the wife of the deceased. P. W. 5 Leela and P. W. 6 Gandhimathi are the daughters of the deceased. P. W. 7 Srinivasan and P. W. 8 Panneer Selvam are the friends of the deceased. P. W. 10 Tmt. Pushpa is the wife of P. W. 3 Venkatesan. (b) A-1 and A-2 are brothers. A-3 to A-5 are the associates of A-1 and A-2. A-1 and A-2 are the sons of one Jayalakshmi, who is distantly related to the deceased. There was enmity between the family of the deceased and the family of the said Jayalakshmi over the chit transactions. P. W. 4 Balamani, the wife of the deceased, joined the chit run by the said jayalakshmi, but did not pay back the amount regularly to her. Similarly, two other subscribers introduced by P. W. 4 Balamani also had not paid back the amount to Jayalakshmi after getting the amount in auction. Over this, there used to be frequent quarrels between these two families. (c) A-1 Selvam @ Selvakumar proposed to marry a girl. Relatives of the girl came to the accused place to enquire about A-1. On some information suspected to be given by the deceased Babu Naidu, the girl's family was not inclined to give the girl in marriage to A-1 Selvam. Ultimately, the marriage proposal was dropped. Over this also, there was a grudge in the mind of the accused family. (d) P. W. 1 Raja was in his shop on 16. 3. 1994 at about 10 p. m. P. W. 2 Kannan, after finishing his job, came to the shop of P. W. 1 in order to take him to the house. Then, both of them left the shop and they were proceeding to their house at about 12. 15 mid-night. While they were reaching their house, A-1 to A-5 suddenly appeared in the scene along with deadly weapons. (e) A-1 Selvam shouted at P. W. 2 Kannan, stating that because of the trouble given by his family, the image of their family got spoiled and therefore, the entire family must be finished off. While so stating, A-2 Sasi @ Sasikumar stabbed P. W. 2 Kannan on his hip. On receipt of injury, P. W. 2 Kannan cried. (f) On seeing this ghastly incident, P. W. 1 Raja cried aloud and ran into his house and informed his father and mother about the occurrence. Both of them rushed to the scene of occurrence. A-3 Madhu @ madhusudanan gave a cut on the deceased on his right shoulder and right thigh. When the deceased turned round and about to escape by climbing the staircase, a-1 Selvam prevented him from proceeding further and gave a cut on the head of the deceased. (g) On hearing this sound, P. W. 3 Venkatesan, the brother of the deceased, who was residing in the neighbouring house, came out of the house along with his wife P. W. 10 Pushpa and saw the attack. When they came nearer to the scene of occurrence, A-4 Khalid, with a knife gave a cut on p. W. 3's right hand back side and also on the fingers of the deceased. P. W. 10 shouted. Then, A-5 Munivel cut the ring fingers of both the left and right hand of P. W. 10. (h) Then, on hearing the sound, P. W. 7 Srinivasan, P. W. 8 panneer Selvam and other persons came there. By that time, the accused persons fled away. On noting that P. Ws. 2,3,10 and the deceased sustained injuries, p. W. 1 Raja took them to Virugambakkam Police Station at about 12. 30 mid-night. (i) P. W. 1 Raja gave Ex. P-1 complaint to P. W. 19 Inspector of Police. They were advised to go to Royapettah Hospital along with Police memo. A case was registered in Crime No. 311 of 1994 for the offences under sections 147, 148, 448, 326 and 307 IPC. Ex. P-26 is the F. I. R. The F. I. R. and the complaint were sent to the Magistrate and other superior officers. (j) On 16/17. 3. 1994 at about 12. 55 mid-night, P. W. 11 dr. Loganathan attached to Royapettah Hospital, saw the deceased and declared him dead. He admitted P. W. 2 Kannan in the Hospital and gave treatment. He issued Ex. P-4 accident register. He also admitted P. W. 3 Venkatesan and issued ex. P-5 accident register. P. W. 11 Doctor also admitted P. W. 10 Pushpa and issued ex. P-6 accident register. Ex. P-7 is the accident register relating to the death of the deceased. Then, P. W. 12, another Doctor, conducted surgery on the stomach of P. W. 2 Kannan. (k) In the meantime, at about 1. 00 p. m. , P. W. 19 Inspector of Police went to the scene of occurrence and observed all formalities by preparing observation mahazar and rough sketch and recovered the bloodstained earth, sample earth etc. (l) Since P. W. 19 received the message of death of the deceased, he prepared Express Report altering the case into one under Section 302 IPC. He also arranged for recording of dying declaration from P. W. 2 through the Magistrate. Accordingly, the Magistrate came and recorded the statement of p. W. 2 Kannan. (m) Then, P. W. 19 Inspector of Police came to the Hospital and conducted inquest. Ex. P-29 is the inquest report. He examined the eye-witnesses and others. The body of the deceased was sent for post-mortem. (n) P. W. 13 Doctor conducted post-mortem on the body of the deceased and found five injuries on the body of the deceased. He opined that the deceased would appear to have died of haemorrhage, shock, as a result of stab injuries on the right thigh. Ex. P-10 is the post-mortem certificate. (o) On 18. 3. 1994, P. W. 19 Inspector of Police arrested A-2 and A-4 and on their confession, recovered M. Os. 3,5 and 6, the weapons (knives ). On the same day, he arrested A-3 and A-5 and on their confession, recovered M. Os. 4 and 7, the knives and M. O. 27 shirt. Then, P. W. 19's successor, another Inspector of Police took up investigation and filed the charge sheet against the accused. (p) During the course of trial, on the side of prosecution, P. Ws. 1 to 19 were examined, Exs. P-1 to P-29 were filed and M. Os. 1 to 27 were marked. On the side of defence, Exs. D-1 and D-2 were marked. (q) When the accused were questioned under Section 313 cr. P. C. with reference to the incriminating materials available on record, they merely denied their complicity in the crime in question. (r) Ultimately, the trial Court convicted all the accused with reference to the offences and sentenced them as referred to above. Hence, this appeal.

(3.) IN reply to the above submissions, learned Additional public Prosecutor Mr. E. Raja, while referring to the various authorities, would contend that though Ex. D-1 is admissible under Section 157 of the INdian evidence Act, the entire prosecution case projected through the evidence of injured witnesses, namely P. Ws. 1,2,3 and 10 and the other witnesses, namely p. Ws. 4,5,6,7 and 8, cannot be rejected, especially when their evidence is cogent and is in consonance with Ex. P-1 complaint, which is the earliest document and also corroborated by medical testimony. Mere variations contained in Ex. D-1 statement would not be given more weight in order to reject the ocular testimony tendered before the Court, which has been tested by cross-examination through the injured witnesses and the other independent witnesses.