PALANIVEL Vs. STATE

JUDGEMENT

(1.) THE appellants in Crl. A. No. 638 of 2003 are A1, A2 and A3. A1 has been convicted for the offence under Sections 302 and 324 I. P. C. (2 counts), A2 has been convicted for the offence under Sections 325 and 324 i. P. C. (3 counts) and A3 has been convicted for the offence under Sections 324 and 323 I. P. C. Challenging the above conviction, Crl. A. No. 638 of 2003 has been filed. In respect of acquittal of A2 and A3 for the offence under Section 302 r/w 34 I. P. C. , the State has filed Crl. A. No. 1160 of 2004.

(2.) THE brief facts leading to the filing of these appeals are as follows: a) THE deceased Balan is the brother of P. Ws. 1, 2, 3 and 5. P. W. 4 is the son of P. W. 1. A1, A2 and A3 are brothers. THE accused and the deceased are cousins. THE land in question originally belonged to A2 and the same was purchased by the father of the deceased. After purchase, the possession was handed over to the deceased. Near the said land, there is a poramboke land, which is in possession of A2. THEre is a dispute over taking water to the land in question through the poramboke land. THE deceased party tried to irrigate the lands by taking water through the poramboke land, which is in possession of the accused, but the same was prevented periodically. b) On the date of occurrence, i. e. on 29. 03. 2001 at about 7 a. m. , P. Ws. 1 to 4 and the deceased went to the said poramboke land and started digging a channel in the poramboke land for taking water to his land. At that time, A1 to A3 came there. THEy questioned the deceased and the witnesses as to how the channel could be dug in the land which is in their possession. So saying, A1 to A3, armed with knives attacked the deceased and p. Ws. 1 to 4. P. Ws. 5 and 6 went to the scene after hearing the noise. P. W. 5 after noticing that the deceased and the witnesses sustained injuries, caught hold of A1 and attacked him. He attacked A3 also and caused injuries. THEreafter, the accused ran away. c) THE deceased and the witnesses were taken to Panruti hospital and on the way, the deceased died. He was declared dead by the doctor and others were treated at the Panruti hospital. Intimation was sent to the police station. P. W. 14 Head Constable attached to Pudupettai Police Station went to hospital and received a complaint from P. W. 1. Ex. P1 is the complaint and a case was registered in Crime No. 110 of 2001 for the alleged offences under Sections 341, 324 and 302 I. P. C at 10. 00 a. m on 29. 03. 2001. d) On receipt of the message, P. W. 17 Inspector of Police went to the hospital and conducted inquest over the body of the deceased and the inquest report is Ex. P27. THEreafter, he went to the scene and prepared observation mahazar and rough sketch Ex. P28. He also effected recovery of spade, bloodstained shirt, bloodstained earth and sample earth etc. , examined p. Ws. 1, 3 and 4 in the hospital. e) In the meantime, P. W. 8, the doctor attached to Panruti hospital, conducted autopsy on the dead body and issued postmortem certificate ex. P2 he opined that the deceased would appear to have died of shock and hemorrhage due to injury to the vital organs, heart and lung sustained. f) P. W. 12 doctor attached to Panruti Hospital examined the other injured witnesses P. Ws. 1 to 5 and issued wound certificates viz. , exs. P10, P8, P7, P9 and P11 respectively. g) On the intimation given by the Government Hospital, cuddalore, the Sub Inspector of Police went to the hospital and recorded a complaint from Vasuki and the same was registered in Crime No. 111 of 2001 under Sections 147, 148, 341, 323 and 324 I. P. C. , which is a counter complaint. h) A2 got treatment in the Panruti hospital. A1 and A3 got themselves admitted in the Pondicherry hospital. i) On 31. 03. 2006 at about 10. 00 a. m. P. W. 17 Inspector of police arrested A1 and A3 at 10. 30 a. m. On the confession of A1 and A3, M. O. 1 and M. O. 4 were recovered. j) On 11. 04. 2001, P. W. 17 arrested A2 and on his confession, M. O. 3 knife was recovered. He sent the materials for chemical examination and after completion of the investigation, he filed the charge sheet against the accused. k) During the course of trial, on the side of prosecution, P. Ws. 1 to 17 were examined, Exs. P1 to P28 were filed and M. Os. 1 to 10 were marked. l) When the accused were questioned under Section 313 cr. P. C. , they denied their participation in the occurrence. On the side of the defence, Ex. D1 counter complaint given by Vasuki and Ex. D2 wound certificate issued in respect of the injuries sustained by Vasuki were marked. m) THE trial Court accepted the prosecution case and convicted A1 for the offence under Sections 302 and 324 I. P. C. (2 counts)However, A2 and A3 have been acquitted in respect of the offence under Section 302 r/w 34 I. P. C. A2 has been convicted for the offence under Section 325 and 324 I. P. C. (3 counts) and A3 has been convicted for the offence under Sections 324 and 323 I. P. C. Challenging the conviction, all the accused have filed crl. A. No. 638 of 2003 and in respect of acquittal of A2 and A3 for the offence under Section 302 r/w 34 I. P. C. , the State has filed Crl. A. No. 1160 of 2004. This is the subject matter of appeals before this Court.

(3.) ACCORDING to the prosecution, the deceased party have got a right to use the channel to take the water to the land. ACCORDING to the defence, they cannot use the poramboke land even as a channel since the poramboke land is in possession of the accused. As such, even admittedly, there is no dispute between these parties for a long period over themselves. But, the point is that the materials placed by the prosecution through the witnesses would clearly indicate that both the parties sustained injuries in the same occurrence and in respect of the same occurrence, two complaints have been received at the police station, one given by P. W. 1 and another by Vasuki. In the complaint given by P. W. 1, there is a reference about the injuries on the deceased and P. Ws. 1 to 4. As per the complaint given by Vasuki, the injured persons are A1 to A3 and Vasuki. As such, there is no dispute that both the complaints have been treated as a case and counter. But unfortunately, P. W. 17 has not taken care to investigate the counter case, which has been registered in Crime No. 111 of 2001. As a matter of fact, A1 and A3, who sustained injuries in the occurrence, were admitted in JIPMER Hospital, Pondicherry.