ATHIKKAN Vs. STATE

JUDGEMENT

(1.) THESE two appeals arise out of a judgment rendered by the learned Sessions Judge, Kanniyakumari Division at Nagercoil, in S. C. No. 42 of 1987 dated 31. 8. 1987, finding the first accused (appellant in C. A. No. 569 of 1987) alone guilty for the of fence under Section 302, I. P. C. and thereby convicting and sentencing him to life imprisonment and acquitting the accused 2 to 4 (respondents in C. A. No. 279 of 1988) of the charges framed and tried against them. Challenging the said judgment, the State has preferred appeal against acquittal in C. A. No. 279 of 1988 and the lifer the first accused has filed C. A. 569 of 1987, challenging the correctness and propriety of the same. Since both the appeals arise out of a single judgment against four accused, which ended in convicting the first accused and acquitting accused 2 to 4 and the convicted accused and the State have preferred separate appeals on the same factual aspects and law and evidence, both these appeals are disposed of by delivering this common judgment.

(2.) THE factual scenario of the prosecution case is stated as hereunder: P. W. 1 Chellathangam is the wife of the deceased by name ramasamy, residing in Vettikattuvilai in Sarottu Village in Kanniyakumari District, within the jurisdiction of the Thukkalay Police Station. P. W. 1's husband's brother Velappan was employed as a Wireman in the Electricity Board. P. Ws. 3 and 4 are the daughters of the said Velappan. P. W5 their mother is one ponnammal. It appears that there existed an enmity between Ponnammal's family and the family of the accused for several years and as such they we re not in talking terms. Ponnammal, the mother of P. Ws. 3 and 4 is stated to have encroached and put up a hut in the place belonging to one Chellammal and in that connection, at about 8 am. on 20. 12. 1985 there was a quarrel between P. W. 3 and P. W. 4 and the accused and in which A1. A3 and A4 had beat P. W. 3 and P. W. 4 and a complaint was given to thukkalay Police station and accordingly, the injured were sent to the hospital. At about 6 p. m. on that day, the deceased Ramasamy, husband of P. W. 1, returned from his job and he was informed of the morning incident by P. W. 1. At about 9 p. m. the deceased has been to the house of Velappan for the purpose of enquiring the incident happened in that morning. At about 11 p. m. on that day, p. W. 2 brought the deceased with the help of his hands and he was not in a position to talk and she was informed by P. W. 2 that the accused has beat him with sticks. P. W. 2 told her that when the deceased was returning from the house of Velappan, near the six feet pathway, all the accused beat him with sticks and hands. THE left hand thumb finger, left side hand and the back were also seen with the injuries and more so, the deceased complained of pain in his bladder. As it was night time, P. W. 1 could not go to the Police Station. THErefore, on the next day evening at about 8 p. m. , she took her husband in an auto-rickshaw to the Thukkalay Police Station and gave a oral complaint which was reduced into writing to her narration, read over to her, and she subscribed her signature, marked as Ex. P. 1. THEn she took her husband to Thukkalay Hospital and after some treatment, he was referred to the Government Hospital, Nagercoil for further treatment, where P. W. 1 and the deceased were examined by the Sub inspector of Police, Thukkalay, and a statement was also recorded from the deceased by a Judicial Magistrate. After 10 days, the deceased Ramasamy died in the hospital.

(3.) P. W. 10 Dr. Yusuf, claims that at about 9 a. m. on 22. 12. 1985 he admitted the deceased Ramasamy in good condition and capable of speaking to others and Ex. P. 10 is the copy of the Accident Register. Dr. Pen ravindran P. W. 11, the Medical Officer attached to the Government Hospital, nagercoil, claims that he was present during the recording of the dying declaration by P. W. 8, the Judicial Magistrate, at about noon on 22. 12. 1985 and that the patient was conscious and to that extent he has certified in Ex. P. 6. P. W. 12 Dr. Sathyavathi, Devi, the Medical Officer attached to the Government Hospital, nagercoil has also seen the deceased Ramasamy and she speaks about the intimation sent to the Judicial Magistrate Ex. P. 4 to record dying declaration and the surgery done to Ramasamy between 3 p. m. to 5 p. m. on that day. The tissues to the extent of 1'x 1/2'in the small intestine had been affected with sepsis and that it was rectified by the surgery and she was of the opinion that because of the tearing above referred, the faecal matter came out and surrounded other portions with infection and this injury could have been caused by kicking and beating and this injury is likely to cause death in the ordinary course of nature and Ex. P. 11 is the case sheet regarding the patient. Dr. Azhagesan, P. W. 13 is the Radiologist attached to the Nagercoil Government hospital. He speaks to the factum of the x-rays and Ex. P. 13 is his report. Dr. Thangavel of the Government Hospital, Nagercoil, P. W. 14 speaks about the second surgery and according to him, the internal injuries found on the person of the deceased would cause death in the ordinary course of nature. PW. 15 dr. Santhanam attached to Government Hospital, Nagercoil, claimed that the deceased Ramasamy had expired at about 7. 30. p. m. on 4. 1. 1986 and sent Ex. P. 14 the death intimation to the Police. Another doctor by name Boopathi, examined as P. W. 16 of the Government Hospital, Nagercoil, on the receipt of the corpse with a requisition to conduct autopsy, he did the autopsy and found the following injuries: 1. Plastered wound 3 in numbers. The plasters were removed. 2. A sutured wound-surgical 19 sutures along the mid line vertically-30 cm wound is infected. 3. A drainage wound along with drainage tube in situ just about the left anterior super iliac spine 5 cm transverse-infected. 4. A cut down wound 1/2 cm just above the right medial mallelous. He was of the view that all injuries are ante-mortem and the patient died due to the formation of peritonitis. Ex. P. 16 is the post mortem certificate given by him.