MUNIAPPAN Vs. STATE

JUDGEMENT

(1.) The appellants are A-1 and A-2 in Sessions Case No. 149 of 1985, on the file of First Additional Sessions Judge, Coimbatore. They were convicted for the offences under Sections 449 and 302 read with 34 I.P.C., and sentenced to undergo R.I. for three years and to pay a Fine of Rs. 50/- in default to undergo R.I. for two weeks, and to undergo imprisonment for life respectively. The sentences were directed to run concurrently.

(2.) The crux of the indictment against the appellants is that on 24-2-1985 at about 11.00 P.M., the appellants trespassed into the arrack shop that belonged to the deceased Subbiah Thevar, and assaulted with a broken bottle on his right hand and leg, and after pushing him down on the floor, by crumpling his head and strangulating his neck, caused the death of the deceased.

(3.) The brief facts are :(a) The scene village is Ramanathapuram, within Pollachi police jurisdiction. The deceased Subbiah Thevar, aged about 60 years was running an unlicensed arrack shop. P.W. 1 Marimuthu and P.W. 2 Mayilsamy had their own tea shop, situated on the western side of the house of the deceased. At the extreme west, there was a"Murugan Rice Mill', in which P.W. 4 - Subramaniam was working as a driver.(b) The 1st appellant Muniappan belonging to Chengadhurai village, was working in a rice mill belonged to P.W. 10 Kanakaraj, situate at Jamin Muthur village. The 2nd appellant Radhakrishnan is his associate. The 1st appellant, frequently used to come to the unlicensed arrack shop of the deceased, and consume arrack. More often, he did not use to make the payment, and he would create 'galaata' in the arrack shop. Therefore, P.Ws. 1 and 2 had the occasions to see 1st appellant often.(c) P.W. 5 Sakthivel was owning a cycle shop at Jamin Muthur village. On 24-2-1985 at about 8.00 P.M., the 1st appellant came to his shop and hired M.O. 1-cycle. The relevant entry made by P.W. 5 in the register is Ex. P5. P.W. 1, at 11.00 P.M., after closing his tea shop, came out of the shop to go for answering the calls of nature. At that time, P.W. 1 saw A-1 coming on M. O. 1 cycle along with A-2, who was sitting on the bar and both of them entering into the arrack shop, after putting the M. O. 1 cycle outside the shop.(d) A few minutes later, P.W. 1 came back to his shop. Suddenly, P.W. 1 heard a sound from the arrack shop of the deceased crying "[Vernacular Matter Omitted]" P.W. 1 went and informed this to P.W. 2, and both of them went to the arrack shop, in order to see what happened. They found the front door bolted from inside. P.W. 4, who was in the rice mill also came there, on hearing the sound emanating from the shop of the deceased. They found a window opened at the eastern side of the house. With the help of petromax light, which P.W. 1 carried and torch-light which was brought by P.W. 4, P.Ws. 1, 2 and 4 peeped into the window, and saw the deceased was being assaulted by A-1 by means of a broken bottle -M.O. 3 by scratching on his right elbow, shoulder and right knee. The deceased was trying to escape from the attack. However, A-1 pushed the deceased down, and thereafter both A-1 and A-2 caught hold of the head and dashed it against the floor. On seeing this horrible sight, P.Ws. 1 and 4 shouted at the appellants, and requested them to leave the deceased. But even then, A-1 and A-2 both throttled the neck of the deceased and twisted the same by turning the head to the opposite direction. P.W. 1 rushed to the house of the owner of the building - Krishnasamy Gounder, and informed about the incident. Then on his instructions P.W. 1 came back and asked one Aaran, the servant working under him to scale over the roof and to gain entry into the house. Accordingly, the said Aaran climbed on the roof and removed some tiles on the front side and got into the house. When he gained entry into the house and unbolted the door, all these witnesses, viz. P.Ws. 1, 2 and 4 and Krishnasamy Gounder, the landlord, went inside the house and found the deceased dead, and inside the house in a separate room, one Gurusamy, aged about 12 years, the son of the deceased was found sleeping. In the right hand side corner, in another room, the witnesses found, the tiles of the middle roof had been removed, and through that way, the appellants escaped from the house.(e) On 25-2-1985, at 3.00 A.M., P.W. 1 came to Poliachi Police Station, and gave Ex. P1 complaint to the Sub-Inspector of Police-P.W. 8. On the basis of the same, P.W. 8 registered the case in Cr. No. 27 of 1985, for the offence under Section 302 I.P.C., and despatched Ex. P1 complaint and Ex. P 14-printed F.I.R., to the Court, as well as to the senior officials.(f) At 4.45 A.M., P.W. 11-Inspector of Police, received the F.I.R., and went to the spot and took up further investigation. He prepared Ex. P18 observation mahazar and Ex. P17 rough sketch. He held inquest between 6.00 A.M., and 12 noon, on the dead body of the deceased and examined P.Ws. l, 2, 4 and others. Ex. P19 is the inquest report. Then he sent P.W. 6-Head Constable, along with Ex. P6 requisition and dead body of the deceased, for being entrusted the same to Doctor for post-mortem.(g) P.W. 9-Doctor attached to the Government Hospital at Pollachi, commenced post-mortem at 4.50 P.M., on 25-2-1985 and found the following injuries :-"