ETICAN Vs. NALLATHAMBY

JUDGEMENT

(1.) THIS revision is filed by the defacto complainant against the acquittal of the respondents / A-1 to A-4 in respect of all the charges, viz. , offence under Section 302 I. P. C. against A-1 and for offences under sections 302 read with Section 34 and 201 I. P. C. against A-1 to A-4 on the file of the Principal Sessions Judge, Namakkal, in S. C. No. 35 of 2003 as per judgment dated 30. 6. 2003.

(2.) THE facts that led to the filing of this revision are as follows: (a) P. W. 1 Ettikan is the father of the deceased Mani and p. W. 2 Kalaiyarasi is the wife of the deceased and they are closely related to p. Ws. 3 to 5. P. W. 4 Chockalingam, who is an agriculturist, is doing lorry business and P. W. 5 is doing rice business. P. Ws. 1 to 5, deceased Mani and the accused are known to each other and P. W. 6 is the wife of A-3. A-1 is having poultry shed near Thangayee temple at Periyapatty and the deceased Mani, P. Ws. 1 to 6 and the accused are the residents of Periapatty village. THE deceased was a Kabadi player and he was living with his wife along with his parents in the same building in different portions. Since the deceased Mani was without any job, he used to drive the car of A-1 and he also used to consume liquor along with A-1 to A-4. As he was under ayurvedic treatment for nearly one year, he stopped drinking and subsequently, again he started drinking along with the accused. (b) In the Kabadi game on 16. 01. 2001 arranged in celebration of the Pongal festival, the deceased Mani and his team won the game, which was over by 5. 30 P. M. and at about 7. 30 P. M. on the same day, P. W. 4 went to the poultry shed of A-1 to see A-3, where A-3 and his wife were residing in a portion, and he found his wife P. W. 6 and when he enquired her about the whereabouts of A-3, he was informed by her that A-1 to A-4 and the deceased were consuming liquo r at the end of the poultry shed and when P. W. 4 went to the said place, he found A-1 to A-4 and the deceased Mani consuming liquor. THEy also indulged in wordy quarrel. P. W. 4, after informing P. W. 6, went back to his lorry workshop at Namakkal. THE deceased Mani did not turn up to his house on the evening of 16. 01. 2001 and on the next day also and having been informed so by P. W. 2 at 8. 00 A. M. on 17. 01. 2001, P. W. 1 searched of his son in all the places and made enquiries to p. W. 3 about his whereabouts but all ended in vain. On 18. 01. 2001 at about 5. 30 a. M. , P. W. 1 went to the public well situated at a distance of 65 feet from his house in search of his son and in the street light, he saw the body of his son lying dead in the well steps and started shouting and when he went near the dead body, he found him dead with two stab injuries above his right hand elbow, one injury on the left side below the ambit, one injury in the front portion of the neck and abrasions on the knees. On hearing his shouting, his wife and daughter-in-law as well as other people gathered. THEreafter, P. W. 1 went to namakkal Police Station to lodge Ex. P. 1 complaint at 8. 00 A. M. where the same was received by P. w. 15, the then Sub-Inspector of Police at Namakkal Police station, who, on receipt of the same, registered the case in Namakkal Police station Crime No. 52 of 2001 as suspicious death. THE printed First Information Report is Ex. P. 16. He sent the copy of the First Information Report to the Court and concerned officials. (c) P. W. 6, Inspector of Police, on receipt of the First information Report, took up investigation and went to the place, where the well is situated and where the body of the deceased was lying, and prepared observation mahazar Ex. P. 7 and rough sketch Ex. P. 17. He conducted inquest on the body of the deceased in the presence of panchayatdars and also in the presence of witnesses P. Ws. 1, 2 and 4 and others and prepared Inquest Report ex. P. 18. He seized M. O. 5 one pair of rubber chappels and M. O. 6 blood stained sleeve banian and also sample blood under mahazar Ex. P. 8 and arranged to take photographs M. O. 7 and M. O. 8 through P. W. 7 photographer. He sent the body of the deceased for post-mortem along with requisition Ex. P. 2 through P. W. 14 Police constable. (d) P. W. 8 Dr. Uma Maheswari attached to Government Headquarters Hospital , Namakkal, on receipt of the requisition, conducted autopsy on the body of the deceased at 4. 00 P. M. on 18. 01. 2001 and found the external and internal injuries as noted in the Post-Mortem Certificate Ex. P. 3. (e) After post-mortem, P. W. 14 recovered M. Os. 1 to 4, viz. , blood stained white colour banian, blue colour lungi, brown colour jatty and yellow colour waist cord respectively, from the body of the deceased and handed over the same to P. W. 16 with a report under Ex. P. 15. (f) P. W. 16 conducted further investigation, examined the witnesses and recorded their statements. Since P. W. 16 was transferred, further investigation was taken up by P. W. 17 Raju, who obtained the final opinion from p. W. 8 Doctor about the cause of the death. He sent the Chemical Analysis report and Post-Mortem Certificate to the Forensic Science Department at Government Mohan kumaramangalam Medical College Hospital, Salem, for further opinion and P. W. 9, police Surgeon, Professor of Forensic Medicine of the said Hospital, gave his opinion that the cause of death was due to asphyxia and compression of neck and on receipt of the report from P. W. 9, P. W. 17 altered the charge sheet from suspicious death to one under Section 302 I. P. C. and sent Ex. P. 19 Alteration report to the Judicial Magistrate. (g) On 30. 5. 2002 at 2. 00 P. M. when P. W. 5 Palanisamy was proceeding from Periapatty to Namakkal in his T. V. S. 50 vehicle, he met the first accused, who came in his T. V. S. 50 vehicle, near Fire Station at Namakkal. During that time, A-1 gave extra-judicial confession to P. W. 5 to the effect that when the deceased Mani, on 16. 01. 2001, refused to consume liquor along with him and co-accused in his poultry shed, he pressed the neck of the deceased Mani forcibly and pushed him down and the other accused A-2 to A-4 caught hold of his legs and hands and A-1 again pressed his neck, which resulted in his death and then A-1 to A-4 brought the dead body in Suzuki vehicle and pushed the same in the well. P. W. 5, on receiving such statement from A-1, went to Namakkal Police Station and informed the same to P. W. 17 on 30. 5. 2002 at 6. 00 P. M. P. W. 4 also gave statement on 30. 5. 2002 to P. W. 17 that he had lastly seen the deceased on 16. 01. 2001 at 7. 30 P. M. in the company of A-1 to A-4 in the poultry shed of A-1 and he has also informed the same to shanmugham, Palanisamy and Raman. On such statement, P. W. 17 went in search of the accused on 31. 5. 2002 at about 7 am and arrested A-1 in front of Periyapatty panchayat Office in the presence of P. W. 11 Ponnusamy, the then Village administrative Officer of Periapatty, and another and A-1 gave a voluntary confessional statement Ex. P. 9 (admissible portion) to P. W. 17 in the presence of the same witnesses and then took him to the office of A-1 in Namakkal -Paramathy Main Road from where A-1 handed over M. O. 9 motor cycle to P. W. 17 and the same was seized by P. W. 17 in the presence of the witnesses under Ex. P. 10. THE said motor cycle belonged to P. W. 13 Kandasamy and it was seized by the police from one Jayam after the arrest of A-1 on 31. 5. 2002 at about 12. 30 P. M. P. W. 17 then arrested A-3 and A-4 in the presence of the same witnesses and sent a-1, A-3 and A-4 to remand. P. W. 17, in the course of further investigation, recorded statements of witnesses. On 06. 6. 2002, the second accused surrendered before the Judicial Magistrate No. IV, Salem, and he was also then remanded to judicial custody. After completing investigation, P. W. 17 filed the final report.

(3.) LEARNED counsel for the revision petitioner/de facto complainant, in support of his contention, relied on the decision of the honble Supreme Court in State of Karnataka V. Siddappa Basanagouda Patil (A. I. R. 1990 SC 1047) wherein Their Lordships held thus: "this piece of evidence of the Investigating officer discloses that the deceased had trespassed into the house of the respondents, received all the injuries, then came to the road with bleeding injuries and fell down. As to how the occurrence originated there is no clear evidence. But we have to infer from the circumstances that the deceased had not received all the injuries while he was on the road as spoken to by P. Ws. 1, 2 and 6 but even earlier to the arrival of the witnesses to the scene when the deceased trespassed into the house of the respondents and picked up quarrel with them. Hence, we are in full agreement with the view expressed by the High Court that there is suppression of genesis and origin of the occurrence. There is no clear evidence as to what was the justifiable cause for the deceased who was a well-known wrestler, to enter the house of the respondents, and to pick up a quarrel. As we have pointed out earlier, the irresistible inference is that the deceased should have fallen victim at the hands of the respondents only after he entered the house of the respondents. "