KUPPURAJ Vs. UNION TERRITORY OF PONDICHERRY

JUDGEMENT

(1.) R T. 14 of 1986 is a reference under section 366 Cr. P.C. for confirmation of sentence of death awarded to A -I and A -2 in S.C. No.6 of 1986 by the learned Sessions Judge, Karaikal. C.A. No. 1080 of 1986 is filed by A -1 to A -5 challenging in the legality and correctness of their convictions by the learned Sessions Judge in the above case wherein A -1 and A -2 were convicted under section 302 read with section 149 I.P.C. and sentenced to death and they are further convicted under section 148 I.P.C. and sentenced to undergo R.I. for one year. Though they were convicted under section 341 I.P.C. no separate sentence is awarded. A -3 was convicted under section 302 read with S. 149 I.P.C. and sentences to life imprisonment. He is also convicted under section 148 I.P.C. and sentenced to undergo R.I. for one year and also convicted under section 341 I.P.C. and sentenced to undergo R.I. for six months, the substantive sentences were directed to run concurrently with the life imprisonment. A -4 and A -5 were convicted under section 147 I.P.C. and sentenced to undergo R.I. for two years and were convicted under section 341 I.P.C. and sentenced to undergo R.I. for fix months, while they were convicted under section 302 read with section 149 I.P.C. and sentenced to undergo R.I. for three years and the substantive sentences were directed to run concurrently. . It is further directed that A -5 being an youthful offender to be sent to observation Home Ariankuppam and to be there for the period he is sentenced.

(2.) C .A. No. 116 of 1987 has been preferred by the State challenging the legality of the sentences awarded to A -4 and A -5 for enhancement of the same. They were tried for the above offences on the allegation that on 21.12.1985 at about 9.45 a.m. at Pillaiyar kuppam within the jurisdiction of the Mudali arpot Police Station A -1 to A -5 formed them selves into an unlawful assembly in which A -1 and A -2 were armed with Veechu Aruval, A -3 with Sulukki and those weapons were dangerous weapons and in pursuance of the common object A -4 and A -5 wrongfully restrained the deceased Uthiravelu aged about 41 years from proceeding from the scene of occurrence, thereby facilitating A -1 to A -3 to attack the deceased and during the course of the same transaction A -1 cut the deceased on his head and neck and A -2 also out with the weapon Veechuaruval on his head and left arm and A -3 also stabbed him with Sulukki in his abdomen and as a result of the injuries the deceased died later. In support of the above charges the prosecution examined P. Ws. 1 to 19, filed documents Exs. P -1 to 32 and marked M. Os. 1 to 26.

(3.) AS regards the occurrence it is alleged that on 21.12.1985 between 9.30 and 9.45 a.m. while the deceased was proceeding in a scooter M.O. 4 from north to south at Eechankadu Road he was way laid by all the accused and at that time A -1 cut him with Veecharuval on his neck with M.O. 1 knife and while A -2 attempted to give a cut with M.O. 2 the deceased tried to ward off the blow with his left arm and he sustained injury on his left arm and immediately A -3 stabbed him with Sulukki M.O. 3 and it pierced on the right side of his hip. After receiving the injuries the deceased started sagging bending his neck forward and A -4 and A -5 standing in front of Uthiravelu (since deceased) restrained him from proceeding further. A -1 and A -2 stated chopping the neck of Uthiravelu as if they were butchering a goat. P.W. 2 who first noticed the attack on the deceased raised hue and cry and proceeded to the scene place. Her cry drew the attention of P.W. 1 who was sitting under a tamarind tree near the Mariamman temple and he rushed to the scene place. P.W. 5 who was a neighbour witnessed the occurrence. When they went to he scene place and raised alarm, A -3 dropped the Sulukki, while A -1 and A -2 left the scene place with the respective weapons in their hands. P.W. 4 who was proceeding towards the Paper mill to hand over the leave letter met P.W. 1 prior to the occurrence. When he was talking under the Tamarind tree with his friends he also saw A -1 to A -3 sitting on the ruins of the basin made out of bricks and it is stated that A -1 started at him and when he proceeded further the alarm raised by P.W. 2 attracted him and when he went to the scene place he witnessed the attack by the accused on the deceased. Thereafter P.W. 1 along with one Packkiri who met him on the way in a cycle went to the police station and gave an oral complaint to P.W. 16. Assistant Sub Inspector of Police, Kirumambakkam, who reduced the same into writing and Ex. P -1 is the complaint given by P.W. 1. He also recorded the complaint in G.D. which is marked as Ex. P -28 and thereafter he despatched the complaint through a police co table to Thavalakuppam police station and he also informed about the occurrence to the Thavalakuppam Police Station and Circle Officer, Muthaliarpet through wireless. Thereafter he secured a van from the Paper Mill and he along with five constables proceeded to the scene place, and reached there at 10.15 p.m. There he found the deceased being with cut injuries on his head, and left arm and a portion of the arm was hanging. He prepared a requisition Ex. P -24 and sent the body through P.W. 15 Police constable to the Government Ho spital Pondicherry. P.W. 19 Inspector of Police who was informed about occurrence at about 10.10 a.m. proceeded to the scene place and reached there at about 11.00 a.m. At 11.30 hours he received the F.I.R. and prepared the observation mahazar Ex. P -2 in the presence of P.W. 5 and another. He rushed to the General Hospital where the body was sent and thereafter he sent intimation to the Sub -Divisional Judicial Magistrate, Pondicherry, altering the section of law to 302 I.P.C. Ex. P -31 is the report regarding the same. He held inquest over the dead body of the deceased Uthiravelu between 12 and 15 hours in the presence of P.W. 8 and others, and during inquest he examined P. Ws. 1, 4 and Dandapani. Ex. P -12 is the Inquest report prepared by him. Thereafter he gave a requisition to the R.M.O. Pondicherry to conduct post -mortem on the body of Uthiravelu P. W. 14 Assistant Surgeon, attached to the Government Hospital, Pondicherry, conducted autopsy between 3.00 and 4.00 p.m. and he found the following external injuries; (1) A cut injury 2 cm. long cutting through the posterior aspect of the right pinna. (2) Deep injury involving skin muscles and vesseds of the neck and involving the brain stem extending from right earlobe to left ear -lobe about 20 x 5 cm. with irregular borders. (3) Two cruciated injuries over the occipital each about 8 x 2 cm. bona deep about the previous one. (4) Subtotal amputating injury involving the left fore -arm at the junction of the proximal 2/3rd distal 1/3rd involving both bona fractures and tendens and vessels. (5) Two penetrating injuries 2 1/2 x 1 1/2 in the right flank in the posterior auxiliary -line. He also found the internal injuries; (1) A linear fracture on the frontal bona measuring 3 cm. in the right side. (2) A 'Y' shaped fracture 7 cm. in length on the occipital bone extending to the right parital bone. (3) There is a through and through trans acting injury of the spinal cord below the foraman magnum. He sent viscera and blood for chemicial examination after receiving the report Ex. P. 26. He gave his final opinion. According to him, Injury No.5 could have been caused by M.O. 3 while injury Nos. 1 to 4 could have been caused by M. Os. 1 and 2. He would further state that the curvo of the M. Os. could have been come into contact with the pinna and caused Injury No.1. According to him, Internal Injury No.1 could have been caused by 'Contrecoup' and Injury No.2 was caused on the base of the skull and the region is called head portion and external injury No.2 must have been caused by weapons like M. Os. 1 and 2, and Internal Injury No.2 corresponds to external Injuries 2 and 3. He would further opine that these injuries are sufficient to cause death and that the death was due to head injury with multiple fracture with hypovolemic shocks and the death would have occurred due to the injuries above -mentioned 3 to 5 hours prior to the post -mortem examination. Ex. P -27 is the post -mortem certificate issued by him. P.W. 19 continued further investigation. He inspected the scene place at 15.30 Hours and he caused the photos of the scene place to be taken through P. W. 11. Exs. P -14 to P -17 are the photos showing the different views of the place where M. O. 4 was found. Ex. P -18 photo shows M.O. 4 and Ex. P -19 is the photo showing the place of occurrence with, blood stains. Ex. P -20 photo shows M.O. 3 and M. Os. 20 to 26 are the negatives of Exs. P -14 to P -20. He seized the blood stained articles from the scene place, namely M.O. 3 Suluki, M.O. 4 blood -stained earth, M. Os. 5, 6, 8 to 10 blood stained Kattamani leaves in the presence of P.W. 5 and Ekambaram under the cover of mahazar Ex. P -3. He drew the rough sketch of the scene of occurrence, which is marked as Ex. P - 32. At about 17 hours he examined witnesses P.W. 2, P. W. 3 and others, and on 22.12.85 he examined P.W. 14 and others at Thavalakuppam Police Station and recorded their statements. He also examined others. On 23.12.1985 he sent the blood stained articles with a requisition to the S.D.J.M. Pondicherry to send them for chemical examination P.W. 12 Assistant Sarishtadar of S.D.J.M. Court on receipt of the requisition from P.W. 19 caused the blood stained M. Os. to be sent to Central Forensic Laboratory, Hyderabad, as per the orders of the Magistrate. Ex. P -22 is the Chemical Examiner's report and Ex. P -23 is the Serologist report. P.W. 19 continued further investigation, and examined the other witnesses. P. W. 17 Sub Inspector of Police arrested A -1, A -2 and A -4 at 14 hours at Villupuram bus stand and he seized the clothes of the accused in the presence of the witnesses. A -1 gave a voluntary confession statement and he recorded the same in the presence of witnesses, the admissible portion is marked as Ex. A -6. He also recorded the confession statement made by A -2 the admissible portion of which is marked as Ex. P -5. Since it was night and also there was emotion in the area he felt not safe to take the accused to the area to recover the weapons. Hence he asked the witnesses to come the next morning at 8.00 hours and on 25.12.85 at 8.45 hours he proceeded to the scene of occurrence along with A -1 and A -2 and P.W. 15 and one Janakiraman. A -1 showed the place where he had concealed the weapon used by him, removed the same and handed over the weapon M.O. 2 to him and it was seized under the cover of mahazar Ex. P -7. A -2 showed the place where he had concealed the weapon used by him and removed the same and handed over M.O. 1 to P.W. 19 who seized the same under the cover of mahazar Ex. P -8. Thereafter A -1, A -2 and A -4 were sent for remand. On 26.12.85 he showed M. Os. 1 and 2 to the Medical Officer P.W. 14 and thereafter sent the same to the Court. On 27.12.85, P.W. 16 Assistant Sub Inspector arrested A -5 at 5 hours at Veeranamkeezhapatti colony and produced him before P.W. 19. P.W. 16 arrested A -3 on the same day at 6.30 p.m. and produced him before the Inspector. P.W. 19 sent them for remand. After examining certain witnesses and after completing investigation P.W. 19 laid charge sheet on 18.2.1986 under sections 147, 148, 341, and 302 r/w s. 149 I.P.C. against A -1 to A -5.