CHINNASAMY ALIAS KANNYALAN Vs. STATE

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the conviction of the appellants-accused A. 1 and A. 2 under Section 304 (ii) IP C and sentence imposed to undergo rigorous imprisonment for 5 years.

(2.) THE brief facts of the case are as follows:- (a) P. W. 1 is the brother of the deceased Rangasam y. THE deceased is also uncle of P. W. 2 and Cousin of P. W. 3. THE occurrence took place on 18. 4. 1998 at 11. 00 p. m. , About four days prior to the occurrence, A. 1's sister's grand daughter by name Baby, a minor girl is said to have been kidnapped by one Chockalinga m. THE family members of the said minor girl Baby suspected that the deceased engineered the elopement or abduction. On 18. 4. 1998 there was some Pooja in Devampadivalasu Makaliamman temple in which P. W. 1, the deceased,p. W. 2 and one Sandhu , Venkatachalapathy participated and they were returning after the Pooja was over. THE deceased was walking 40 feet in front of P. W. 1 and others. When they were nearing Muthalamman Temple,a. 1 armed with Vasi (a weapon used to separate the coconut from the husk) and A. 2 with an iron pipe attacked the deceased on his stomach, private parts and right leg. At the time of attack, they were saying that he was the reason for elopement of Baby. P. W. 1, 2 and others went to catch the accused, but they escaped. Immediately, P. W. 1 took the TVS 50 Moped and brought a taxi in which the deceased was taken to Government Hospital, Pollachi. On 19. 4. 1998 at 4. 03 a. m. , P. W. 5, Dr. Kaja Mohideen examined the deceased and found the following injuries:- "1. A blunt injury over left side of the chest over axill a region- contusion size 5 cm x 5 cm; 2. A blunt injury over right side of the abdomen contusion size 10 cm x 8 cm; 3. A blunt injury with small abrasion over lateral aspect of right knee joint. size 4 cm x 2 cm 4. Obstructed inguinal hernia right side" (b) THEreafter he gave intimation Ex. P. 4 to Police station. On the advice of P. W. 5, the injured Rangasamy was taken to Medical College Hospital ,Coimbatore in a taxi. After admitting him in the Hospital, P. W. 1 went to Pollachi Taluk Police Station and gave a complaint before P. W. 9, Head Constable, who recorded the complaint of p. W. 1. THE said complaint is Ex. P. 1. Based on Ex. P. 1, complaint, P. W. 9 registered a case in Crime NO. 66 of 1998 under Sections 324 and 506 (ii) IP C against the accused. Ex. P. 10 is the printed FIR. P. W. 10, Sub Inspector of Police who received copy of the FIR went to the place of occurrence and at 9. 00 a. m. , in the presence of PW. 4 and one Natarajan , he prepared Ex. P. 2 observation mahazar and Ex. P. 11 rough sketch. He examined P. Ws. 1 , 2 and 3, Vankatachalapathy , Sandhu and P. W. 4 and recorded their statements. On 19. 4. 1998 at 9. 55 a. m. , P. W. 6 admitted the injured Rangasamy at the Government Medical College Hospital at Coimbatore and gave intimation to the Police. (c) On 23. 4. 198 P. W. 10 Sub Inspector of Police arrested the accused near Nalligoundenpalayam Mariamman Temple. THE accused volunteered to give statement of confession and produced M. Os 1 and 2. In pursuance of the said confession statement the weapons were seized under a cover of mahazar Ex. P. 9 signed by P. W. 8 and one Damodharan. On 30. 4. 1998, at 7. 30 a. m. , he received the intimation that the injured Rangasamy who was treated at the Government Medical College Hospital , Coimbatore died and therefore, P. W. 11, Inspector of Police altered the Section of the FIR as one under Secton 302 IPC read with Section 34 IPC and sent Ex. P. 12, express report to the Court. Between 10. 00 a. m. , and 1. 00 p. m. , on 30. 4. 1998 in the presence of Panchayatdars , P. W. 11 conducted inquest on the body of the deceased and examined witnesses. THE inquest report is Ex. P. 13. After inquest, he sent the body along with Ex. P. 7 requisition through P. W. 9 constable Muthiah for autopsy. (d) P. W. 7 conducted autopsy on the body of the deceased on 30. 4. 1998 at 2. 15 pm. , and found the following injuries:- External: 1. Sutured surgical abdominal vertical midline incisional wound partially healed measuring 22 x 1. 5 cm abdominal cavity deep with 16 sutures. 2. Surgical drainage wound 3 x 2 cm abdominal cavity deep seen on either flanks. 3. Surgical infected drainage wound measuring 2 x 1 cm present in the left subcostal region. 4. Abrasion with black scab measuring 1 cm diameter present in the outer surface of middle third of right arm. 5 Bedsore measuring 12 x 10 cm present in both buttocks. Internal: 1. Haematom a of varigated appearance present in the lower anterior abdominal wall. 2. Small bowel found adherent to one another. 3. Peritoneal cavity contains about 200 ml of foul smelling faecopurulent fluid. 4. Small bowel found sutured measuring 4 cms , one foot proximal to the ileocaecal junction. On dissection of the sutured wound in the small bowel a perforation measuring 3 x 1 cm is present. THE sutured wound is infected. 5. Multiple areas of contusion seen in the terminal portion of the small bowel. " (e) He also gave the opinion that the accused would appear to have died as a result of septic complication of blunt injury of the abdomen ( perforative faecal peritonitis ). (f) P. W. 11 once again examined P. W s 1 and others who were already examined by P. W. 10 Sub Inspector of Police and recorded their statements. He also examined P. W. 6, 7 and obtained the postmortem certificate. After completion of investigation on 27. 4. 1998 he filed a final report against the accused under Section 302 IPC. (g) Before the learned Principal Sessions Judge, Coimbatore , on behalf of the prosecution, P. Ws 1 to 11 were examined and EXs. P. 1 to P. 13 were and M. Os 1 and 2 were marked. On behalf of the accused D. Ws 1 and 2 were examined and Exs. D. 1 and D. 6 were marked. When the accused were questioned under Section 313 Cr. P. C. , with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses as against them, they denied the same as false. Along with the statement under Section 313 Cr. P. C. , they have also produced five documents which include 2 photographs with negatives. (h) On a consideration of the oral and documentary evidence, the learned Principal District and Sessions Judge came to the conclusion that the offences alleged against the accused under Section 302 IPC is not proved, but offence committed under Section 304 (ii) IPC proved and convicted them and sentenced them to undergo R.I for five years. Aggrieved over the said conviction and sentence, this Criminal Appeal has been filed by the appellants/accused.

(3.) THE above contention of the learned senior counsel for the appellants is supported by the admitted evidence of P. Ws 1 and 2 themselves. During cross examination, P. W. 1 has admitted that on 18. 4. 1998 Mylsamy , the father of the girl gave a complaint against himself, P. W. 2 Kaliappan and his sons Duraiyan and Singuru and therefore the Police summoned them and they appeared before the Police and after enquring them the Police sent them back. P. W. 2 has also admitted that on 18. 4. 1998 two Police constables came and took himself and four others including P. W. 1 to Police station for enquiry. But unfortunately P. W. 9, Head Constable or P. W. 10 Sub Inspector of Police and p. W. 11, Inspector of Police totally show ignorance of summoning them to Police station for enquiring them. I am at a loss to understand as to how two constables were deputed from the Police Station to take 5 persons to the Police station for the purpose of enquiry without the knowledge of the Head Constable or the Sub Inspector of Police. THErefore the admission of P. W s 1 and 2 that they were taken to the Police station for enquiry on the complaint made by the eloped girl's father only shows that the complaint lodged by the accused already was not considered by the Police and no action was taken at the instance of some influential person. THE other document submitted along with section 313 Cr. P. C. , statement would show that the father of the eloped girl Mylsamy has sent complaints to higher officials like Dy. Superintendent of Police, Superintendent of Police and collector to take action against the prosecution party in connection with the abduction of his minor daughter. However, a complaint has been registered in that regard only one month later on 14. 5. 1998 as a case in Crime No:84 of 1989 under Section 366 read with 109 IPC in which P. Ws. 1 and 2 are accused.