MYSUDHA Vs. STATE

JUDGEMENT

(1.) THE sole accused Mysudha has come forward with this appeal challenging his conviction and sentence passed by the learned District and Sessions Judge, Tiruvannamalai, in the judgment dated 31.07.2006 made in SC.No.112 of 2003, convicting the appellant for the offence under section 302 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.10,000/- in default to undergo one year rigorous imprisonment and convicting him under section 307 IPC and sentencing him to undergo 7 years rigorous imprisonment and imposing a fine of Rs.10,000/- in default to undergo one year rigorous imprisonment and convicting him under section 25[1][b] of the Indian Arms Act and sentencing him to undergo one year rigorous imprisonment and also imposing a fine of Rs.1,000/- carrying with the default sentence of one year rigorous imprisonment. 2.THE accused faced the trial under the following back drop:- [a] P.W.1 is the brother of father-in-law of the accused. P.W.4 is also the brother of father-in-law of the accused. P.W.5 is the wife of the deceased. THE accused as well as P.Ws.1, 3, 4 and 5 were the residents of the same village, viz., Kattamaduvu. THE accused and his wife were living in a joint family along with the parents of the accused. THE wife of the accused, one Prema was compelling the accused to set up a separate family and as a result, there were frequent quarrels between the accused and his wife Prema. In view of the frequent quarrels, Prema, the wife of the accused, left the marital home and she was residing in her parental home. Six months prior to the occurrence, the in-laws of the accused and the important village people went to the house and requested the accused and his father to set up a separate family and as such, there were strained feelings between the two families. [b] At 8.30 p.m., on the date of occurrence, i.e., 27.05.2002, as the father-in-law of the accused, one Jamila, P.Ws.1, 3, 4 and the deceased Manivannan heard that the accused assaulted his wife, Prema, they went to the house of the accused and questioned the conduct of the accused. THE accused went inside his house and took a country gun and shot the above said persons who came there for Panchayat. As a result, P.W.1 and the deceased sustained injuries. THE deceased became unconscious. P.W.4 took the injured deceased to the Government Hospital, Tiruvannamalai. [c] As per the evidence of P.W.11, the doctor attached to the Government Hospital, Tiruvannamalai, he examined the deceased on 27.05.2002 at 11.30 p.m. and found the following injuries:- "1.Lacerated wound over right side of fore head 2x1/2x1/2 with contusion around it 4x4 cm.

(2.) BLEEDING from right ear more present." Ex.P.13 is the Accident Register.

(3.) MR.K.S.Rajagopalan, learned counsel for the appellant contended that the prosecution has miserably failed to establish the guilt of the accused by adducing clear and consistent evidence. It is contended that the alleged eyewitnesses P.Ws.1, 3, 4 and 5 have not supported the case of the prosecution and they turned hostile. The learned counsel for the appellant would further submit that P.W.1 also disowned his report Ex.P.1 and stated in his cross-examination that the police obtained his signature in a blank paper and the signature alone is marked as Ex.P.1 in this case. It is further contended that the medical evidence belies the case of the prosecution. The doctor P.W.11 stated that the deceased was brought by P.W.4 and it was informed to him that the deceased was assaulted by four known persons with stick and stone. It is submitted that the injury sustained by the deceased as per Ex.P.13-Accident Register is only a lacerated wound on the forehead with a contusion and there is absolutely no gun shot injuries found by the doctor, P.W.11 who has examined the deceased at the earliest point of time. The learned counsel would further submit that as per Ex.P.7-Postmortem Certificate, it is opined by the doctor that the deceased died due to gun shot injury on the head and as such, the opinion is contrary to the injury sustained by the deceased as per the Accident Register-Ex.P.13 and there is no explanation from the prosecution in respect of this inconsistency between the medical evidence. It is further contended that the prosecution has not proved that M.O.1-country gun was exclusively possessed by the accused and the prosecution also not proved the recovery of M.O.1 by adducing reliable evidence. It is pointed out by the learned counsel for the appellant that according to P.W.1-the Village Administrative Officer while he went near the house of Devaraj, the father of the accused, the gun-M.O.1 was produced by the accused and he has not stated that it was concealed by the accused. Therefore, it is submitted by the learned counsel for the appellant that the prosecution case suffers from several serious infirmities.