SELVAM Vs. STATE

JUDGEMENT

(1.) AGGRIEVED by the judgment passed against the appellants by the Additional Sessions Judge, Nagarcoil in s. C. No. 97 of 1997, in and by which, A1 to A7 were convicted for the offences punishable under Sections 148 and 341 I. P. C. and sentenced them to undergo R. I. for three years and one month respectively, A2 to A5 and A7 were convicted for the offence punishable under Section 147 and sentenced them to undergo R. I. for two years, A1 was convicted for the offence punishable under Section 302 I. P. C. and sentenced him to undergo life imprisonment and also imposed a fine of rs. 1000/- with default clause and A2 to A7 were convicted for the offence punishable under Section 302 r/w 149 I. P. C. and sentenced each to undergo life imprisonment and also imposed a fine of Rs. 1000/- with default clause, the appellants have come forward with this appeal.

(2.) THE case of the prosecution, in a nutshell, is as follows: a. P. W. 1 is the sister of the deceased Magadevan. She is residing along with her son Muthukumar at Mela Street, Seedapal. On 8. 10. 1995 around 11. 00 a. m. , she came to Keelaperuvilai village to take back her son, who came to his maternal grandmother's house to spend holidays. P. W. 1's son was studying VI standard at the time of occurrence. P. W. 3 is the mother of P. W. 1. b. When P. W. 1 informed P. W. 3 about the reopening of school to his son on 9. 10. 1995, P. W. 3 informed P. W. 1 that she would send her grandson on the next day. THErefore, P. W. 1 decided to return to her house at Seedapal. She was proceeding to the bus stand to go to Seedapal along with the deceased, who was walking with the cycle, around 12. 45 p. m. While they were proceeding near Christoper colony junction, all the accused 1 to 7 stood in front of Gani beef stall. A1 and A6 were carrying Aruval in their hands. On seeing the deceased Magadevan , A1 and all the accused alarmed and shouted that they should not allow him to leave from that place. While saying so, A1 pulled the cycle of Magadevan. All of a sudden, all the accused prevented Magadevan from proceeding further. THEy surrounded him. On seeing this, P. W. 1 shouted at them. However, Magadevan attempted to escape from the clutches of the accused and ran towards eastern side. When he tried to escape from the accused and ran towards eastern side to the extent of 50 feet all the accused again surrounded him and prevented him from proceeding further. Meanwhile, A1 attacked Magadevan with Aruval on his right side and inflicted several injuries.c. In furtherance of the said attack, A1 caused injuries on his left cheek. Again, he attacked Magadevan with Aruval on his left chest above the stomach and inflicted an injury. Meanwhile, A6 attempted to attack the deceased with Aruval. As the aim of the attack was missed, A1 sustained injury on his head. Immediately after the said attack, Magadevan fell down on the ground. All the seven accused lifted and thrown him on the western side of Gani beef stall. On seeing this, P. W. 1 raised alarm. However, all the accused ran fast towards Christoper Colony on the western side with Aruval. THE brother of A1 Nagarajan lifted the cycle of Magadevan and thrown into a pit, which was situated on the southern side of the road. P. W. 1, thereafter, saw her brother and found him dead. THE said attack was witnessed by one Ramesh.d. P. W. 1, thereafter, proceeded to Mayam village, wherein, her brother-in-law one Rajamurthy was living. Since P. W. 1 did not know the procedure to lodge a complaint before the Police Station and also did not find any person to assist her, she went to her brother-in-law's house. She narrated the incident and in turn, her brother-in-law Rajamurthy informed the Asaripallam police station over phone. THEreafter, P. W. 1 and Rajamurthy proceeded to Asaripallam police Station to lodge a complaint.e. P. W. 11 head constable, who was attached to Asaripallam Police Station at the relevant period, recorded the statement given by P. W. 1 around 5. 30 p. m. Ex. p. 1 is the statement given by p. W. 1. THEreafter, P. W. 11 prepared a printed F. I. R. , Ex. P. 14, and sent Ex. P. 1 and F. I. R. to the Judicial Magistrate No. 2, Nagercoil.f. On receipt of the information from P. W. 11 around 18. 30 hours, P. W. 14 immediately proceeded to the occurrence spot with police personnel. On reaching the place of occurrence, he prepared an observation mahazar Ex. P. 3 in the presence of P. W. 4 Kaja Mohideen and Gani. He has also drawn a rough sketch Ex. P. 15. g. In furtherance of the investigation, P. W. 14 sent a message to the photographer P. W. 9 to take photos of the dead body and material objects which were available at the occurrence spot. As per the instructions given by P. W. 14, P. W. 9 photographer took photos at the occurrence spot. M. O. 7 series are photos and M. O. 8 series are negatives. THEn, P. W. 14 conducted inquest over the dead body of Magadevan in the presence of the witnesses and prepared an inquest report. Ex. P. 16 is the inquest report.h. To know the cause of the death of the deceased,p. W. 14, entrusted the dead body of Magadevan to the police constable P. W. 12. While doing so, P. W. 14 gave a requisition letter ex. P. 6 to the doctor for conducting post mortem. As per the instructions given by P. W. 14, P. W. 12 handed over the requisition letter Ex. P. 6 to the doctor p. W. 7.i. On receipt of the said letter from P. W. 12, P. W. 7 conducted post mortem on the next day on 9. 10. 1995 around 12. 30 hours. During the course of post mortem examination, he found the following injuries. "external Examination: 1) Incised wound over the left mandibular region extending to the middle of the neck about 7" x 2" x " in size exposing the muscles and mandible left side. 2) Incised wound over the base of the neck about 8" x 3" x 3" in size cutting all the muscles of the neck and all the blood vessels of the neck trachea and oesophagus and c6 cervical vertibra hanging with the skin. 3) Incised wound over the chest below the 2nd wound transverse in direction about 6" x " x 1" in size exposing the muscles and sternum and cutting the 2nd rib left side. 4) Incised wound over the epigastriu m transverse in direction 1 " x 1" x " in size. Fracture of the 8th rib both right and left side. Heart 250 gm. Chamber empty cut section pale. Lungs Right 400 gm s , Left 350 gm cut section pale. Hyoid bone broken. Stomach 250 gm. contain 100 ml black coloured fluid present. Liver 1300 gm cut section pale Spleen weight 100 gms cut section pale. Eath kidneys 125 gms cut section pale. Brain 1300 gm cut section pale. Opinion as to cause of death: THE deceased would appear to have died of injury neck and other injuries. THE Death would have occurred about 18 to 30 hours prior to post-mortem. " j. P. W. 7 issued a post mortem report Ex. P. 7. After the post mortem was over, P. W. 12 removed M. O. 9 to 15 from the dead body of Magadevan and handed over the same to the Inspector.k. In furtherance of the said investigation, P. W. 14 collected bloodstained graze M. O. 5 and ordinary earth M. O. 6. Further, he also recovered M. Os. 2 and 3. THE said recovery was effected in the presence of witnesses under the cover of Athatchi Ex. P. 4. THE cycle M. O. 4, which was found inside the tank, was also recovered by P. W. 14 under the cover of mahazar Ex. P. 5. He enquired the prosecution witnesses and recorded their statements.l. Meanwhile, P. W. 14 came to know about the surrender of a1 before the Court. He took the custody of A1 from the Court for the purpose of enquiry and recovery. He enquired A1 in the presence of witnesses P. W. 8 and Pandara Nadar , who were present at the police station at the time of enquiry. In the presence of P. W. 8 and Pandara Nadar , A1 gave a confession statement. THE admissible portion of the confession statement is ex. P. 8. As per Ex. P. 8, P. W. 14 and the mahazar witnesses accompanied A1 to Beer Mohamad Coconut Thopu. A1 entered into coconut thopu and took a knife from the place where he hide it and handed over the same top. W. 14. P. W. 14 recovered M. O. 1 from A1 in the presence of P. W. 8 and Pandara Nadar under the cover of mahazar Ex. P. 9.m. P. W. 14, thereafter, sent a requisition letter to p. W. 10 Head clerk attached to Judicial Magistrate Court and asked him to forward the material objects for finding out the blood group. Ex. P. 10 is the requisition letter given by P. W. 14. P. W. 10 forwarded the material objects, which were recovered by P. W. 14 at the time of investigation, to forensic laboratory. After the analysis was over, he received chemical report Ex. P. 12 and serological report Ex. P. 13.n. Meanwhile P. W. 14 retired from service. P. W. 15 continued the investigation. He enquired the doctor Ashok , who has given treatment to A1. He also received a wound certificate Ex. P. 17. After the completion of investigation he filed the charge sheet.

(3.) ACCORDING to the learned counsel, the following infirmities would very much affect the root of the prosecution case and in such circumstances, the conviction and sentence imposed by the learned Sessions judge against these appellants are not sustainable under law.