KANNAIYAN Vs. STATE

JUDGEMENT

(1.) A1 to A4 in S. C. No. 111/2001 on the file of the Court of sessions, Nagapattinam are the appellants in this appeal. All of them were charged for an offence under section 302 read with section 34 I. P. C. In addition to the above, A4 was also charged for an offence under section 307 i. P. C for making an attempt on the life of P. W. 1. The learned Sessions Judge convicted all the accused under the first charge referred to above and sentenced them to undergo imprisonment for life together with a fine of rs. 1,000/- each, carrying a default sentence. However, A4 was acquitted of the offence under section 307 I. P. C and instead, he stands convicted for an offence under section 324 I. P. C and sentenced to a fine of Rs. 1,000/-, carrying a default sentence. It is that conviction which is in challenge in this appeal. Heard Mr. V. Gopinath learned senior counsel appearing for the appellants and mr. E. Raja learned Additional Public Prosecutor appearing for the State.

(2.) THE occurrence is shown to have taken place at about 3. 00 p. m on 08. 01. 2000, during which, one Mathivanan, who is stated to have been attacked by A1 to A4, succumbed later on to the injuries on 22. 01. 2000 and in the course of the same transaction, P. W. 1 is also shown to have been attacked by A4. To sustain their case, the prosecution examined P. Ws. 1 to 3 as eye witnesses to the occurrence, besides medical and other official witnesses. THE case of the prosecution as spoken to by P. W. 1 is as follows: "a1 is her father-in-law. A2 is A1's brother-in-law. A3 and A4 are the sons of A1. She is the wife of the deceased. THEre was a property dispute between the accused on the one hand and her husband. A panchayat was convened in regard thereto on the day of the occurrence, which was attended to by her husband. He was returning home. En-route, he was way-laid by all the accused and they attacked him, which she witnessed. THEy attacked her husband with sticks and suluki. A1 and A2 attacked her husband on his head and hands with suluki. A2 also attacked her husband on his head and hands. A3 and A4 attacked her husband on his head with a wooden log. She ran towards her husband and she was also beaten. A4 attacked her on her head and hands with suluki. Her husband fell down and all the accused ran away. P. W. 2, a local villager, took her and her husband to the Government Head Quarters Hospital at Nagapattinam, where they were admitted as in-patients for treatment. On the third day, her husband was transferred for better treatment to the Government Head Quarters Hospitalat Thanjavur and thirteen days after the date of occurrence, her husband died. "

(3.) THE question that falls for decision is whether the conviction of the accused for the offences referred to above is supported by any legal material" Mr. V. Gopinath, the learned senior counsel appearing for the appellants, would submit the following points: a) THE place of occurrence is shifted to the advantage of the prosecution. b) P. Ws. 2 and 3 could not have witnessed the occurrence at all and therefore their evidence should be disbelieved. c) P. W. 2 had admitted that A1 had sustained injuries in the same transaction in which Mathivanan/since deceased came to sustain the injuries. This means, there was a quarrel between the two groups. If that is so, then the case of each individual must be considered on their own individual acts. d) When there is a quarrel, there is no question of sharing the common intention by one accused with the other accused and it stands eliminated. e) THE prosecution had failed to place before the court any medical evidence to show what is the treatment given to Mathivanan/since deceased between the date of the incident and the date of his death. This vitiates the entire prosecution case and in any event, in the absence of medical evidence, even the individual, assuming he caused the fatal attack, cannot be found guilty for an offence under section 302 I. P. C but only for a lesser offence. For this purpose, the learned senior counsel relied upon a Division bench judgment of this court in the case reported in 2001-1 L. W. Crl. Pg. 354 (Nammalwar Vs. State, etc.) f) THEre is discrepancy in the evidence of the witnesses as to the weapons used by each of the accused vis-a-vis the deceased as well as p. W. 1 and the benefit of the same should be given to the accused. We heard the learned Additional Public Prosecutor on all these points. THE learned Additional Public Prosecutor, relying upon the judgment reported in 1999 Volume I S. C. C. Pg. 120, would submit that when there is medical evidence to show that the death was caused by septicemia, which was due to head injury and the said injury was sufficient in the ordinary course of nature to cause death, the conviction under section 302 I. P. C would be proper.