ARUMUGAM Vs. STATE

JUDGEMENT

(1.) THE case of the prosecution is that on 07.05.1998 at about 4.30 A.M. in Throwbathiamman Temple at THEnmambakkam Village, on account of prior enmity between the first accused and deceased Dharmalingam, A-1 to A-7, with an intention to cause the death of the deceased and to assault one Chinnayyan, formed an unlawful assembly and, in furtherance of such common intention, armed with weapons, went to the place where the deceased was sleeping and caused injuries on his body with knife and stick, resulting in his death. In the same course of transaction, they caused grievous injuries to the brother of the deceased by name Chinnayyan. THE trial court framed charges against the accused for offences punishable under Sections 147, 148, 342, 307, 326, 323, 302 and 302 read with 149 IPC. On conclusion of the trial, while acquitting A-3 to A-7, the trial court convicted A-1 and A-2 for the offence punishable under Sections 302 read with 34 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.1,000/-. THEy were also convicted for the offence under Section-324 IPC. and imposed with a fine of Rs.500/-. THE sentences were ordered to run concurrently. A-1 and A-2, who are brothers, have preferred the present Criminal Appeal aggrieved by the order of conviction and sentence passed against them by the trial court.

(2.) DURING the course of trial, the prosecution examined PWs-1 to 22, of whom, PWs-1 to 4 were cited as eye witnesses to the occurrence, PWs-11 and 12 were examined to speak about the attack on Chinnayyan and PWs-6 to 10 to substantiate the quarrel which ensued between A-1 and the deceased, and the panchayat conducted to pacify them. Further, the prosecution marked Exs.P-1 to P-26 and produced MOs-1 to 13. The learned trial Judge disbelieved the evidence of PWs-1 and 2, but, relying on the evidence of PWs-3 and 4, though they were partially treated as hostile witnesses, and also other materials/piece of evidence available on record, convicted A-1 and A-2 under Section 302 read with 34 IPC. Equally, the trial court convicted A-1 and A-2 under Section 324 IPC for causing grievous injuries on Chinnayyan by placing reliance on the evidence of PWs-11 and 12.

(3.) LEARNED counsel for the petitioner, at the foremost, submits that PWs-1 and 2 are interested witnesses since they are closely related to the deceased and Chinnayyan and their evidence corrodes from contradictions, therefore, the same should be disbelieved. By pointing out that the occurrence having taken place at 4.30 am. and therefore, the presence of the PWs-1 and 2 at that time is doubtful and further, it might not have been possible for them to correctly identify the assailants, it is reiterated that the evidence of PWs-1 and 2 should not be relied on. Even insofar as PWs-3 and 4 are concerned, though they have been cited as eye witnesses for the occurrence, the weapons used by the accused have not been specifically stated by them and moreover, they did not say anything about the presence or overt-acts of the other accused, therefore, they have been treated hostile to that extent; that being so, the evidence of such hostile witnesses should not be acted upon to hold against the appellants/accused. Admittedly, the deceased is an arrack seller and might have had other enemies in the village; hence, attack by somebody else inimically disposed of towards him also cannot be easily ruled out. By pointing out that though the statement of Chinnayyan was recorded by the Constable at 10.30 A.M., F.I.R. was registered only at 6 P.M. and the same reached the court of the Magistrate belatedly, it is submitted that there were all possibilities of embellishment. There is no corresponding injury as put forth by PWs-1 and 2 on the deceased and Chinnayyan. According to the learned counsel, on an assessment of the evidence as a whole, it could be presumed that a false case has been foisted against the appellants/accused. Finally, by submitting that the learned trial judge while acquitting other accused on the basis of the same evidence, erroneously convicted the appellants alone, learned counsel pleads that benefit of doubt may be given in favour of the appellants/accused and they may be acquitted.