LAWS(MAD)-2008-7-485

RANI Vs. KUMARAVEL

Decided On July 21, 2008
RANI Appellant
V/S
KUMARAVEL Respondents

JUDGEMENT

(1.) CRL.A.No.469 of 2005 has been preferred by the appellant, Rani, who is A.3 and CRL.A.No.473 of 2005 of 2005 has been preferred by the appellants Kumaravel and Yuvaraj, who are A.1 and A.2, respectively, in S.C.No. 78 of 2004, on the file of the learned Additional Sessions Judge (FTC), Namakkal. By judgment dated 24.5.2005, A.1 and A.2 were convicted under Section 302 IPC, for which, each of them were sentenced to undergo life imprisonment and to pay a fine of Rs.2000/= each, in default, to undergo two months simple imprisonment and they were also convicted under Section 324 IPC and sentenced to undergo one year rigorous imprisonment each. A.3 has been convicted under Section 324 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/=, in default, to undergo one month simple imprisonment. Challenging the said conviction and sentence, the appellants have preferred the above two Criminal Appeals.

(2.) THE respondent-Erumaipatti Police have filed a final report alleging that, due to prior enmity with the deceased Krishnasamy, with respect to the boundary wall that existed in between their respective houses, on 5.6.2003, at 12.00 noon, when the deceased and his son Mani and their workmen were engaged in putting up the compound wall with hollow bricks, after demolishing the existing compound mud wall, the accused 1 to 3 demolished the hollow bricks used for the purpose of raising the compound wall, and when this was questioned by the said Mani, with an intention to murder P.W.1, Mani, A.1 with the crow bar attacked Mani on his head, due to which he fell down, and A.3 with the help of Aruvalmanai (vegetable cutter) attacked him on his head, left hand, right shoulder, while A.2 attacked Mani with a stick on his hip and legs, thereby A.1 to A.3 have committed an offence punishable under section 307 read with Section 34 IPC. Secondly, in the course of same transaction, when P.W.1's father Krishnaswamy intervened, the first accused with the crow bar, attacked Krishnasamy on his head, the second accused beat him with stick on his head and the third accused attacked Krishnasamy with Aruvalmanai on his head and hands repeatedly, due to which, Krishnasamy succumbed to the fatal injuries 5 days later, in spite of treatment taken in the Hospital, thereby A.1 to A.3 have committed an offence punishable under Section 302 read with 34 IPC.

(3.) 1. After completion of the evidence by the prosecution witnesses, when the accused were questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, the accused denied each and every circumstances put against them as contrary to the facts and each of the accused filed written statements. 5.2. According to the accused, on the date of occurrence at 12.00 noon, P.W.1 Mani along with the workmen engaged in putting up the hollow bricks compound wall adjacent to their house. When this was prevented by the accused claiming the disputed place as the one belonging to them, the deceased Krishnasamy with the crow bar attacked the first accused on his head, right leg and left fore hand, resulting in bleeding injuries. On seeing this, A.3, mother of A.1 came there and P.W.1 Mani attacked her also with the crow bar on her right upper hand. When this was prevented by A.2, P.W.1 Mani, with the same crow bar, attacked on his right hand. Thereafter A.1 and A.3 were admitted as in-patients in the Namakkal Government Hospital for treatment, while A.2 was treated as out-patient. On the complaint given to the Erumaipatti Police, a case in Cr.No.141/03 was registered against the deceased Krishnaswamy and P.W.1 Mani under Sections 324 and 326 IPC. Though they were examined, the independent witnesses Satheeshkumar and Manoharan have not been examined by the Police inspite of their request and ultimately the respondent-Police referred their case as mistake of fact. According to the accused, they have not attacked the deceased Krishnaswamy and in the melee, the deceased sustained injuries. Further, the weapons were available at the scene of occurrence and they have not brought with them from Namakkal. Further, the deceased aged about 75, died only due to the operation performed on him for the head injuries sustained by him and that is why the prosecution has not produced the history of the case sheet maintained by the Hospital. Further, the first accused had sustained a fracture on his left hand for which he took treatment from a Private Nursing Home. The accused examined D.Ws.1 and 2 on their side. 5.3. D.W.1, an Orthopaedic Doctor attached to Subi Hospital, a private Nursing Home, Namakkal, deposed that on 6.6.2003 at 9.00 p.m., he examined the first accused. A.1 complained of pain and swelling in his left hand. On the next day X-ray was taken and a fracture was found on the lower portion of left side ulna bone, for which he was dressed with bandage and tablets were given by him. The doctor also found a sutured wound on his head. According to him, of the two injuries, one is grievous in nature. 5.4. D.W.2 is a known person to the accused as well as to the deceased and he is residing 500 to 600 feet away from their house. At the time of occurrence he was in the Ration Shop, which situates in the house of the accused. At about, 12.00 noon, 4 or 5 persons from the ration shop, hearing the noise, rushed towards the house of the deceased. When he entered the house of the deceased, he saw the accused were preventing P.W.1 and his men from putting up the hollow bricks. Then the deceased attacked the first accused with the crow bar on his head. Thereafter P.W.1 Mani also attacked him on his head. When this was intervened by A.3, mother of the first accused, she also received injuries at the hands of P.W.1 and the deceased. Thereafter A.2 Yuvaraj prevented further attack on his wife, A.3 and in the said course of action the attack given by Mani, mistakenly fell on the deceased and the deceased fell on a stone and sustained head injuries thereof. According to D.W.2, it is only the deceased and P.W.1 who initially attacked the accused and the accused were not armed with any weapon.