ARUMUGAN AND Vs. STATE

JUDGEMENT

(1.) The appellants in C.A. Nos. 287 and 141 of 1987 are respectively accused Nos. 1 and 2 in S.C. No. 72 of 1986 on the file of Court of Session, Anna District, Dindigul. A 1 was found guilty under Section 302 I.P.C. convicted thereunder and sentenced to imprisonment for life. Likewise, A2 was found guilty under Section 302 read with Section 109 I.P.C. convicted thereunder and sentenced to imprisonment for life.

(2.) Aggrieved by the said conviction and sentence; the present actions had been resorted to.

(3.) Brief facts are :-(a) Accused 1 and 2 are the residents of Dindigul. One Murugan (since deceased) had been residing at Paraikulam, a segment of Dindigul. P.W. 1 was originally married to one Sundaram some three decades before and through him she had three off spring-two male and one female. Somehow or other, she developed illicit contract with the deceased Murugan and came up to live with him for the past 20 years prior to occurrence, which event happened on 17-4-1986. Through the deceased she begot four children. P.W. 1 had been residing at Kakkan Nagar, Dindigul. She also has two houses at Paraikulam, a segment of Dindigul. It appears that her husband the deceased had been making out his livelihood by engaging himself in soliciting for prostitution and he had been carrying on such an activity in one of the houses, which P.W. 1 had at Paraikulam.(b) Near Paraikulam E. B. Railway Colony is situate and in that vicinity there are petty shops, tea shops and other shops. There is a Venkatachalapathy temple in that area and adjacent to the temple, there is a press going by the name Indra press. In the Vicinity of the temple and the press, there is also an arrack shop.(c) P.W. 2 had been employed as a binder in Indra Press. He is unmarried. He had been staying on a room in the press itself. At about 5.00 or 5.30 a.m. in the morning of every day, it appears either P.W. 2 or his only employer had been performing the feat of lighting the limp in the said Venkatachalapathy temple located adjacent to the press. P.W. 3 had been running a bunk shop. Like wise, P.W. 4 had been running a firewood shop. The bunk shop and the fire wood shop of P.Ws. 3 and 4 are situate adjacent to an arrack shop in which P.W. 5 had been employed as a worker.(d) There is a place called Aranmanaikulam situate adjacent to E. B. colony area. At 3.00 a.m. on 17-4-1986, P.W. 6 richshaw puller had passed Aranmanaikulam area. At that time, accused 1 and 2 engaged his rickshaw and they in fact got down near Ganesh theatre.(e) At about 4.30 a.m. the deceased went to the arrack shop, in which P.W. 5 had been engaged with his work. He procured 50 ml. of arrack and consumed the same. Thereafter, it appears, the deceased had been sitting in a tea shop located opposite to Ganesh theatre. At that time, the deceased requested P.W. 4 to procure 100 ml. of arrack, to which course she was not amenable. However, she procured a plantain from a nearby shop to the deceased at his behest. Thereafter, the deceased and accused 1 and 2 went to the said arrack shop for consuming arrack. A 1 procured 300 ml. of arrack for a price of Rs. 10/- and P.W. 5, in turn, divided the said arrck into three parts by pouring in three tumblers and the same were served to the deceased as well as accused 1 and 2. After consuming the same, the deceased as well as accused 1 and 2, it is said, were quarrelling with each other. Thereafter, all of them went towards E. B. Colony.(f) At about 5.30 a.m. as usual, P.W. 2 after taking bath went to the temple for the purpose of lighting the lamp. At that time, he had seen A1 and A2 and the deceased conversing with each other in front of temple. All of a sudden, and quite unexpectedly, A2 was stated to have tripped to the deceased and he consequently, fell on the ground. At that juncture, A1 was stated to have whipped out M.O. 1. knife from his waist and inflicted three stabs on abdomen and chest regions of the deceased. Thereafter, both Al and A2 ran away towards the bus stand on the northern side. P.W. 3 who was then sleeping in front of his bunk shop was stated to have worker (awakened) upon hearing the noise and thus had the opportunity of witnessing the occurrence.(g) One of the daughters of P.W. 1, namely, Eswari had been residing in one of the houses of her mother at Paraikulam. On the morning of the day prior to the occurrence P.W. 1 went to Paraikulam to see her ailing daughter Eswari and she had stayed in her daughter's house for that night. On day, dawn, P.W. 1 came to know from her younger sister, Seeniammal that her husband's dead body was lying in front of Indra Press formerly known as Natesh Press. She immediately rushed and reached the scene of occurrence. There she found her husband the deceased lying there with stab injuries on his person. She immediately thereafter rushed and reached Dindigul North Police Station of which, P.W. 12 was the then Sub-Inspector of Police. It was at about 7.30 a.m., P.W. 1 appeared before him and lodged an information Ex. P. 1. On the strength of Ex. PI, P.W. 12 registered a case in Cr. No. 569 of 1986 under Section 302 I.P.C. Ex. P 10 is the printed copy of the First Information Report. He prepared express reports and sent the same to the concerned officials.(h) P.W. 14 was the then Inspector of Police. At about 8.00 a.m. he received express report and immediately took up further investigation in this case. He rushed and reached the scene of occurrence at about 8.30 a.m. After inspecting the scene of occurrence, he prepared Ex. P. 2 observation mahazar in the presence of witnesses P.Ws. 7 and 9. He also drew a rough sketch of the scene Ex. P21. He seized from the scene M.O.2 blood stained earth, M.O. 3 sample earth, M.O. 6 cigaratte packet, M.O. 7 match box, M.O. 5 rupee Note 1, M.O. 10.1 rupee Note-1 and M.O. 11.50 ps. coin 1 under the cover of a mahazar. He held inquest over the body of the deceased between 9 a.m. and 12.00 noon. Ex. P. 20 is the inquest report. During the inquest, he examined P.Ws. 1, 5 and others. After the inquest was over, he sent the body of the deceased through constable P.W. 11 along with a requisition for the purpose of autopsy. Thereafter, he examined P.Ws 2 to 7, 9, 10 and others. He searched for the accused and they were absconding.(i) P.W. 10 was the then Medical Officer attached to Government Hospital, Dindigul. At 5.15 pm he conducted autopsy over the body of the deceased. Ex. P8 is the post-mortem certificate he issued. Ex. P9 is the chemical examiner's report regarding viscera. He would opine that all the injuries he found on the person of the deceased could have been caused by a weapon like Mo.O.1 He would further opine that injury No. 4 is necessarily fatal.(j) After autopsy was over, P.W. 11 constable seized from the body of the deceased M.O.4 dhothi, Mo. 5 shirt, and M.O. 8 gold ring and handed over the same at the police station.(k) On 23-4-1986, at 4.00 p.m. P.W. 14 arrested A2 near Winci theatre situate at Dindigul-Palani bypass in the presence of P.W. 8. On interrogation, A2 gave a voluntary confession statement, the admissible portion of which is Ex. P3, P.W. 14 also seized from A2, M.O. 2 lungi and M.O. 13 shirt under Ex. P. 4 mahazar attested by P.W. 8. Pursuant to Ex. P3 confession, A2 took P.Ws. 8 and 14 to Palani and pointed out A1 who was standing at the bus stand in front of Palani Government Hospital. P.W. 14 arrested A1 in the presence of P.W. 8. On interrogation, A1 gave a voluntary confession statement, the admissible portion of which is Ex. P5. He also seized from A1 M.O. 14 shirt and M.O. 15 dhothi under Ex. P. 6 mahazar. Pursuant to Ex. P. 5 confession, A 1 took out and produced M.O.1 knife kept concealed underneath a trunk box in the house of Bhoominathan and the same was seized under Ex. P. 7 mahazar attested by P.W. 8.On 24-4-1986, he sent Ex. P11 requisition to Judicial II class Magistrate court No. 1, Dindigul, for the purpose of sending the incriminating articles to the chemical examiner for the purpose of examination. He also sent Ex. p. 15 requisition to the same court on 7-5-1986 for sending some other incriminating material objects to the chemical examiner for the purpose of examination :(1) P.W. 13 was the then Head clerk attached to Judicial II class Magistrate No. 1, Dindigul. As per the directions of learned Magistrate, he separately packed and sent M.Os. 2 to 5 to the chemical examiner for the purpose of examination under the original of Ex. P. 12 office copy of the letter. Likewise, as per the directions of learned Magistrate, he separately packed and despatched M.Os. 1 and 12 to 15 to the chemical examiner for the purpose of examination, under the original of Ex. P. 16 office copy of the letter. Exs. P. 13, P. 14 and P. 17 are the Chemical examiners report and Exs. P. 18 and P. 19 are the reports of the Serologist.(m) In the mean time, P.W. 14 Inspector had been transferred and his successor Inspector laid the final report before the Judicial II class Magistrate No. 1, Dindigu1 on 6-8-1986, against the accused A 1 under Section 302 and as against A2 under Section 302 read with Section 109 I.P.C.