RATHINAVEL Vs. STATE REP

JUDGEMENT

(1.) The appellant was accused in S.C. No. 68 of 1986 on the file of the Court of Session, Salem. He was found guilty under Section 302 (2 months) I.P.C. convicted thereunder and sentenced to imprisonment for life under each count with a direction for the sentences to run concurrently with the sentence of life imprisonment imposed upon him under Section 302 I.P.C. in S.C. No. 123 of 1986.

(2.) Aggrieved by the conviction and sentences, the present action had been resorted to.

(3.) Brief facts are :-(a) One Sivashanmugham (since deceased-first deceased - for short D1) was the eldest son of P.W. 1, a resident of Kulakkadu at Pallipalayamm. D.1's father-in-law is one Natesan. The said Natesan owned a lorry bearing registration No. MSN. 458 (M.O. 1.). The said lorry had been managed by D.1. The accused had been employed as the driver of the said lorry. The accused is also related to P.W.1. as his pangali. The lorry had two cleaners. One among them was one Ganesan (since deceased - for short D. 2.) whose father is none else than P.W. 2. The other cleaner was P.W. 6. The accused-driver was not properly rendering accounts to D. 1. as respects the earnings of the lorry. On account of this, there were frequent quarrels and skirmishes between the accused lorry driver and deceased 1.b. A few days prior to the occurrence, which event happened on 3-12-1985, P.W. l. required the services of the lorry M.O. 1. in connection with rig operation at Bangalore. Despite the requirement of the lorry M.O. 1. by P.W. 1. for such operation the driver-accused was unable to spare the services of the lorry inasmuch as he had engaged the lorry for carrying loads otherwise. A day later, i.e., to say on 4-12-1985, P.W. 1. received an information over phone requiring him to go over to Tiruchengode. On receipt of such information, he returned to the village by engaging a taxi. On reaching the Village, he came to know that his son deceased No. 1. and a clearner deceased No. 2. had been murdered and their bodies were lying at Veppankadu in Pillanatham Village, adjacent to Tiruchengode-Ariyanur Road.c. In the meantime, i.e., to say on 2-12-1985 the accused transported cement bags from Sarikagiri factory to Salem Junction. D. 2. and P.W. 6. were then functioning as cleaners of the said lorry. After unloading the cement bags at Salem Junction, the lorry proceeded via Attayampatti and got parked near a cinema theatre at Morepalayam, of which P.W. 12. was the then Watchman. After parking the lorry, the accused and D. 2. went to answer the calls of nature. The time was then 8.15 P. M. After answering the calls of nature, both of them returned to the lorry and the driver-accused attempted to start the lorry, but he was unable to do so. Apparently, there was some mechanical defect. Then the accused-driver and P.W. 6. went to the theatre for witnessing the film running at that time. D. 2. however, stayed and slept in the lorry itself.d. On the morning of 3-12-1985, at about 8.00 a.m., the accused-driver again made an attempt to start the Lorry and the attempt so made ended in dismal failure. He then sought the help of P.W. 7, owner of a tractor bearing registration No. TDS 7659 to give a push to the lorry M.O. 1. so as to start the same. P.W. 7. also readily obliged the accused driver in sparing his tractor for giving a push to the said lorry M.O. 1. for a consideration of Rs. 30/-. After a push having been given with the aid of the said tractor, the lorry started and the accused-driver drove the lorry to Attayampatti and got it parked there near the road side for the purpose of taking tea. The time was then 11.00 a.m. At that time, D.1. came there and questioned the propriety of the accused-driver in not sparing the lorry for its being utilised in connection with the rig operation, carried on at Bangalore but utilising the same for transport of goods unauthorisedly. The accused-driver in turn replied to D. 1. that the lorry M.O. 1. was being taken to Salem for the purpose of effecting repairs. D. 1 mandated the accused-driver not to take the lorry to Salem for the purpose of effecting repairs and instead, he directed him to go to Salem in a bus and purchase necessary spare parts for repairing the lorry. Consequently, the accused-driver and P.W. 6. cleaner went to Salem in a bus. After reaching Salemm, P.W. 6. after taking Rs. 100/- from the accused, went to his village saying that he would get himself engaged in another lorry, in view of the fact that the lorry M.O. 1. was to be sent to Bangalore in connection with the rig operation.e. The driver alone, it appears, returned with the spare parts to Attayampatti. At about 6.30 P.M. he contacted P.W. 8, an oil engine mechanic to effect the necessary and requisite repairs in the lorry M.O. 1. P.W. 8 found the brake system of the said lorry failed and he effected the necessary repairs and restored the brake system. At that time, D. 1. abused the accused lorry driver for his delayed return from Salem.f. After the restoration of the brake system of the said lorry M.O. 1, the driver-accused took the said lorry to the petrol bunk (pump ?) going by the name 'OM Sakthi Enterprises", of which P.W. 13. is the employee and fuelled the lorry with 80 litres of diesel. (diesel). The time was then 7 P.M. Exhibit P. 7. is the carbon copy of the bill for the supply of 80 litres of diesel.g. The lorry M.O. 1 it appears, got parked at Pillanatham Veppankadu, some distance away from the cinema talkies located at Morepalayam. At about 9 p.m. one K.A.S. bus bearing Registration No. TNQ 9763 passed that way. P.Ws. 9 and 10 were respectively the then conductor and driver of the said bus. The accused-driver, however, stopped the said bus and requested P.Ws. 9 and 10 to give him a helping hand in pushing the lorry so as to see the said lorry got started. P.Ws. 9 and 10 obliged the accused-driver in giving a push to the said lorry. At that time, the accused-Driver was found in a perturbed state of mind. P.Ws. 9 and 10 did not however, know the accused lorry driver previously, but however, identified him subsequently at the identification parade held within the premises of Judicial Second Class Magistrate's Court, Sankagiri.h. The accused-driver drove the lorry towards Attayampatti and when the said lorry was nearing Attayampatti Police Station, the accused-driver sighted P.W. 11. standing near the Police Station. The time was then 10.00 P.M. On sighting P.W. 11, the driver-accused stopped the lorry and met P.W. 11 and told him that he was proceeding towards Mettupatti to go to his sister's house and in the road proceeding towards Mettupatti, there were lot of wild pigs and therefore, requested him to accompany him and he readily did so and that apart he also gave five cartridges he had to the accused-driver. When the lorry reached Mettupatti, the driver accused parked the lorry, asked P.W. 11 to be in the lorry itself, then went to his sister's house and returned to the lorry after half an hour. At that time, P.W. 11, to his dismay found some injury on the right hand of the accused, beside his dhothi also being found stained with blood. Then the accused drove the lorry towards Vennandhur.i. P.W. 20 was the then Sub-Inspector of Police, Tiruchengode Police Station. On 4-12-85 at 10.00 a.m. he was in charge of the Police Station. The accused-driver appeared before him, along with lorry M.O. 1. and gave a statement. The statement so made by the accused-driver had been recorded by him. At that time, P.W. 3. was bodily present there. The statement so recorded had been read over to the accused-driver and got his signature. On the strength of that statement, he registered a case in Crime No. 743/85 under Sections 302 and 307 I.P.C. Exhibit P.18. is the printed First Information Report. He prepared express reports and sent the same to the concerned officials. Since the place of occurrence fell within the jurisdictional limits of Mallasamudram Police Station. P.W. 20 made arrangements for the transfer of the F.I.R. to the said Police Station through Police Constable No. 1886. Sowrimuthu. The said constable handed over the transferred F.I.R. to P.W. 21, the then Grade I Constable attached to Mallasamudram Police Station. P.W. 21. in turn registered the case in Crime No. 229/85 on the file of Mallasamudram Police Station. Exhibit P. 19. is the Printed F.I.R. He prepared express reports and sent the same to the concerned officials.j. P.W. 24 was the then Inspector of Police, Tiruchengode. On receipt of the copy of the express F.I.R., he took up further investigation of this case. He rushed and reached Tiruchengode Police Station at 12.00 Noon. He arrested the accused who was present there then. On interrogation, the accused gave a voluntary confession statement under Section 27 of the Evidence Act in the presence of P.W. 3. Exhibit P. 1. is the admissible portion of the confession-statement. The same had been attested by P.W. 3. and another. At 1.15 A.M. pursuant to the confession so made, P.W. 14. seized M.O. 1. lorry besides seizing M.O. 2. Koduval and M.O. 3. series cartridges five in number taken and produced by the accused from the tool box available in the said lorry under Exhibit P.2. Mahazar attested by P.W. 3. Since the accused was found injured on his right hand, he had been sent to the Government Hospital, Tiruchengode for the purpose of treatment.k. P.W. 19 the then Assistant Surgeon attached to Government Hospital, Tiruchengode treated the accused at 1.30 P.M. and also noted down the injuries, he found on his person. Exhibit P. 17. is the wound certificate he issued, for the injuries he found on the person of the accused. After the accused being treated as an out-patient, the accused had been taken to the Police Station at 1.45 P.M.l. At 2.00 P.M., the accused took P.W. 24 to Pillanathan, Veppankadu and showed the place where the bodies of deceased 1 and 2 were lying. After inspecting the corpse of D.1. and D. 2. P.W. 24, prepared Exhibit P.3. observation mahazar, attested by P.W. 4. He also drew a rough sketch, Exhibit P. 24, Between 3.00 and 7.00 P.M. he held inquest over the bodies of D. l. and D. 2. Exhibit P. 25. is the inquest report pertaining to D. 1. while, Exhibit P. 26. is the inquest report pertaining to D. 2. During inquest, he examined P.Ws. 1, 2, and others.m. After the inquest was over, he handed over the body of D. 1. to the constable P.W. 14. along with Exhibit P. 8. requisition for the purpose of autopsy. Likewise, he also handed over the body of D. 2. to the constable P.W. 16. along with Exhibit P. 9. requisition for the purpose of autopsy.n. At 7.15 P.M. P.W. 24, seized from the place where the body of D. l. was lying M.O.4. Cheppal, M.O. 5. blood stained earth and M.O. 6. sample earth and also seized from the place where the body of D. 2, was lying M.O. 7, blood stained earth and M.O. 8. sample earth under Exhibit P. 4, attested by P.W. 4. He then also examined P.Ws. 4 and 7. The accused then took P.W. 24. to Vennanthur and after reaching there, the accused pointed out a ditch situate in front of Senthil Corporation located at Rasipuram Main Road, wherefrom P.W. 24. recovered M.O. 9. dhothi under Exhibit P.S. Mahazar attested by P.W. 5. and another. P.W. 24 then took the accused to Vazhappadi Police Station.o. After reaching there, he came to understand that P.W. 22, the then Inspector of Police, Vazhappadi seized M.O. 19. Button knife under Exhibit P. 15. mahazar attested by P.W. 18. near the dead body of one Sengoda Gounder in Crime No. 361/85 of Vazhappadi Police Station. Exhibit P. 20. is the requisition sent by him to Judicial Second Class Magistrate No. 4, Salem, for sending the same to the Chemical Examiner for examination. P.W. 24, then examined P.W. 8. and others at Attayampatti. He brought the accused to Mallasamudram Police Station at 12.30 AM, (O. 30 A.M.). He seized from the accused M.O. 10. pant, M.O. 11. shirt, M.O. 12. banian, and M.O. 13. underwear under Exhibit P. 6. form No. 95 attested by P.W. 5. He then examined P.W. 5. and others. On 5-12-1985, he sent the accused to Court for remand. He also examined P.Ws. 6. and 11.p. P.W. 19, the then Assistant Surgeon attached to Government Hospital, Tiruchengode on receipt of requisition Exhibit P. 8 conducted autopsy over the body of the deceased No. 1. at 8.00 AM. on 5-12-1985. Exhibit P. 16. is the Post Mortem Certificate he issued. He would opine that the injuries found described in Exhibit P. 16. could have been caused by a weapon like M.O. 19. He would further opine that all the injuries were antemortem and that all the injuries were necessarily fatal. After the autopsy of D. 1. was over, the constable P.W. 14, seized from the body of M.O. 14. shirt, M.O. 15. banian, M.O. 16 underwear, M.O. 17. dhothi and M.O. 18. waist cord and handed over the same at the Police Station.q. P.W. 15. the then Assistant Surgeon attached to Government hospital, Tiruchengode on receipt of Exhibit P. 9, requisition conducted the autopsy over the body of D. 2. at 10.00 A.M. on 5-12-1985. Exhibit P. 10. is the Post Mortem Certificate he issued. He would opine that the injuries found described in Exhibit P. 10. could have been caused by weapon like M.O. 19. and that all those injuries were necessarily fatal. After the autopsy of D. 2. was over, the constable P.W. 16. seized from the body M.O. 20, Lungi, M.O. 21, Shirt, M.O. 22, banian, M.O. 23, underwear and M.O. 24, Waist Cord and handed over the same at the Police Station.r. On 7-12-1985 P.W. 24 examined P.Ws. 9 and 10. On 14-12-1985 he gave a requisition to the Judicial II Class Magistrate's Court, Sankagiri for conducting test identification parade so as to enable P.Ws. 9 and 10 to identify the accused. On 21-12-1985. he examined P.Ws. 15 and 19. On 23-12-1985 he sent Exhibit P. 11, requisition to the Judicial Second Class Magistrate's Court, Tiruchengode to send the incriminating material objects for chemical analysis.s. P.W. 17 was the then Head Clerk attached to Judicial II Class Magistrate's Court Tiruchengode. On receipt of Exhibit P.11 requisition, he under the directions of learned Judicial II Class Magistrate, separately packed and sent the incrimination material objects to the Chemical Examiner for the purpose of examination under the original of Exhibit P. 12. office copy of the letter. Exhibits P. 13. and P. 14. are the reports of the Chemical Examiner and Serologist respectively.t. P.W. 23. was the then Head Clerk attached to Judicial II Class Magistrate's Court No. 4, Salem. On receipt of Exhibit P. 20 requisition, he under the directions of learned Magistrate, packed and sent M.O. 19, to the Chemical Examiner for the purpose of Examination under the original of Exhibit P. 21. Office copy of the letter. Exhibit P. 22. is the Chemical Examiner's report, while Exhibit P. 23. is the Serologist's report relating to M.O. 19.u. P.W. 24. examined P.W. 12. on 2-1-1986. On 7-2-1986 he examined P.W. 13. After completing the formalities of the investigation, he laid the final report under Section 173(2) Cr. P.C. on 24-3-1986, against the accused before the Judicial II Class Magistrate, Tiruchengode under Section 302(2) counts I.P.C.