VADIVEL Vs. STATE

JUDGEMENT

(1.) THE appellants are A-1 and A-3 and they have come forward with this appeal challenging their conviction and sentence passed on them by the learned Additional Sessions Judge, Fast Track Court No. I, Erode, in S. C. No. 157 of 2004 by the judgment dated 15. 12. 2004 convicting them for the offence under Section 302 r/w 34 I. P. C. and sentencing them to life imprisonment and imposing a fine of Rs. 1,000/-, in default, to undergo 6 months rigorous imprisonment and also convicting them for the offence under Section 506 (ii) I. P. C. and sentencing them to undergo two years rigorous imprisonment.

(2.) THERE are totally three accused in this case and the second accused also convicted for the offence under Section 302 I. P. C. and sentenced to undergo life imprisonment and imposing a fine of Rs. 1,000/-, in default, to undergo 6 months rigorous imprisonment apart from convicting him under Section 506 (ii) I. P. C. and sentencing him to undergo two years rigorous imprisonment, but he has not preferred any appeal.

(3.) THE accused in this case faced the trial under the following backdrop : (i) P. W. 1 is the brother-in-law of the deceased, Palanisamy ; P. W. 2 is the mother of the deceased. P. Ws. 1, 2 and the deceased are the residents of Vendipalayam village, Erode. A-1 is also a resident of the same place. P. W. 1 was running a business under the name and style as "valajothi" cables. He has given cable connections to all the houses in that area including the house of A-1. The deceased was supervising the business of P. W. 1 and also collecting the subscription amount from the customers. Six months prior to the occurrence, A-1 was not paying the subscription in spite of the repeated demands. Thereafter, the deceased, along with P. W. 1 and with the persons working under them, went to the house of A-1 and disconnected the cable connection. A-1 went to the house of the deceased and questioned the conduct of the deceased disconnecting the cable connection to his house and demanded him to restore the connection threatening that he is a big rowdy. On the same day at 3. 00 p. m. , A-1 along with A-2 and A-3 came to the house of the deceased and threatened him. Again on the same day, while the deceased was watching the T. V. , cable connection was disconnected and when enquiry they found that the main cable connection line was cut and the deceased was informed that A-1 only cut the main cable line. Thereafter, the deceased went along with P. W. 1 to the house of A-1 to question about his conduct which resulted in a wordy quarrel and the deceased and P. W. 1 returned to their house. Again on 31. 08. 2003 at 3. 00 p. m. , A-1 to A-3 went to the house of the deceased and threatened the inmates to restore the cable connection and at that time A-1 kicked P. W. 2 on her stomach. While the deceased intervened, he was also assaulted by A-1 with a stick and he was threatened by the accused by showing a aruval. Therefore, there were strained feelings between the accused party and the deceased family. (ii) On the fateful day of occurrence, i. e. on 02. 09. 2003 at 12. 00 noon, the deceased, P. Ws. 1 and 2 and one Vimala, wife of P. W. 1, were in their house. They heard the shouting calling them outside. The deceased opened the door and went outside. At that time, A-1 and A-3 caught hold of the hands of the deceased. A-2 brought an empty colour soda bottle, M. O. 1, from a adjacent shop and broken the same by hitting on the floor and thereafter, beat the deceased on his left side chest. The deceased fell down. P. Ws. 4 and 5 also came there and they were also threatened by A-2 and all the accused ran away from the scene with M. O. 1, broken bottle. (iii) P. W. 1 took the injured along with P. W. 4 in the two wheeler to Erode Government Hospital. At that time, the legs of the deceased scratched on the floor resulting injuries on the legs. (iv) The Doctor, P. W. 3, attached to the Government Hospital, Erode, examined the deceased on 02. 09. 2003 at 1. 15 p. m. and he declared that the deceased already died. The Doctor, P. W. 3, sent the death intimation, Ex. P. 2 to Out-Post Police Station. (v) P. W. 1 went to Modakurichi Police Station and gave a report, Ex. P. 1 to P. W. 12, Head Constable and P. W. 12 registered a case in Crime No. 230 of 2003 for the offence under Sections 342 and 302 I. P. C. Ex. P. 23 is the Express First Information Report and he sent the same to the higher police officials and the Magistrate Court. (vi) P. W. 13, Inspector of Police, received the intimation on 02. 09. 2003 and reached the police station at 2. 15 p. m. and received the First Information Report and took up the investigation. He went to the Government Hospital, Erode, and held inquest on the dead body of the deceased from 2. 40 p. m. to 4. 30 p. m. Ex. P. 24 is the inquest report. He sent the body for post-mortem with a requisition. (vii) The Doctor, P. W. 3, conducted post-mortem on the dead body of the deceased on 02. 09. 2003 at 5. 20 p. m. and found the following injuries : external Injuries : 1. Lacerated injury 10 X 6 X 8 cm left side front of Chest near the nipple, exposing the underlying on Muscle and bone on probing found to enter pleural cavity. 2. Lacerated injury of 4 X 2 X 2 left foot medial three toes. 3. Lacerated injury of 2 X 2 X 2 cm right big toe. Internal Injuries : 1. Hameo thorax left side about 2 litres blood seen in pleural cavity. 2. Left lung upper lobe punctured with lacerated injury of 4 X 2 X 2 cm in size. 3. Heart punctured and lacerated 4 X 2 X 2 cm size in Venous left ventricle and atrium, Heart empty. There was pericardial blood collection also seen. No fracture ribs lungs right 250 gms left 200 gms. Hyoid intact. Stomach empty. Liver 1100 gms pale Spleen 100 grm Kidney. Each one 150 gfm. Bladder empty. Brain 1000 grm. Spine intact. Ex. P. 4 is the Post-Mortem Certificate. The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to multiple injury (Heart and Lungs ). (viii) P. W. 13, in continuation of his investigation, went to the scene of occurrence at 5. 00 p. m. and prepared the Observation Mahazar, Ex. P. 5 and the rough sketch, Ex. P. 25 in the presence of witnesses. He also recovered bloodstained earth, M. O. 4, sample earth, M. O. 5 and pieces of glass, M. O. 6, from the scene in the presence of witnesses under Ex. P. 6. He examined P. Ws. 2, 5 and others and recorded their statements. On 03. 09. 2004, on information he arrested A-2 and A-3 at 12. 30 noon. In pursuance of the admissible portion of the confession of A-2 under Ex. P. 8, he recovered the broken soda bottle, M. O. 1 under Ex. P. 10 in the presence of P. W. 1 and another. He also recovered bloodstained shirt, M. O. 7 under Ex. P. 11 in the presence of witnesses. Thereafter, he remanded the accused for judicial custody and sent the material objects under Form 95 to the Court. He examined other witnesses and recorded their statements. At 8. 00 p. m. , he recovered the cable T. V. License from P. W. 1 and examined some more witnesses and recorded their statements. He received the Post-Mortem Certificate, Ex. P. 4 and thereafter, examined the Doctor, P. W. 3 and recorded his statement. He sent the material objects for chemical examination through Court. A-1 surrendered before the Judicial Magistrate, Kangayam, and he was taken into police custody on 16. 09. 2003. In pursuance of the admissible portion of confession of A-1 under Ex. P. 13, he recovered M. O. 9 bloodstained shirt under Ex. P. 14 in the presence of witnesses. He sent the material objects seized for chemical examination through the Court on 25. 09. 2003. P. W. 13, after receiving the chemical examination reports, Exs. P. 19 and 20 and the Serologist report, Ex. P. 21 and after completion of the investigation filed the charge sheet against the accused on 13. 11. 2003 for the offence under Sections 302, 302 r/w 34 I. P. C.