SENTHIL Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) CHALLENGE is made to the judgment of the Principal Sessions Division, Villupuram, made in S.C.No.27 of 2006 whereby the appellants two in number, A2 and A3, stood charged along with A1 who died pending trial, tried and found guilty of offence under Sections 302 r/w 34 and 324 I.P.C. and awarded life imprisonment and two years rigorous imprisonment respectively.

(2.) THE short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.2 is the resident of Muthumariamman Temple street, Villupuram. THE accused, the deceased Vijay and P.W.2 were all friends. P.W.2 was a painter by profession. P.W.1 is the paternal uncle of the deceased. On 1.4.2004 at 8.00 p.m. the accused took soup in a public place, at that time, P.W.2 accompanied by the deceased went there and there was wordy altercation between the accused and the deceased. THE persons standing nearby pacified the situation and all left the place. On 2.4.2004, when they went to take tea, the accused quarrelled with the deceased. THEn, they left the place. On 3.4.2004 at 11.00 p.m. when deceased took P.W.2 to his paternal uncle's house for taking dinner, at that time, all the accused were standing with deadly weapons. A1 was armed with veetch aruval, while A2 and A3 were armed with knife. THEy threatened the deceased. P.W.2 tried to take the deceased inside the house. At that time, A1 attacked the deceased on his head. When the deceased tried to prevent the same, A1 attacked him on his left hand. Immediately, P.W.2 went to the rescue. A3 attacked him and stabbed him on his flank, while A2 attacked him on his shoulder. On hearing the distress cry, P.Ws.1 and 3 went near the accused. THE accused fled away from the place of occurrence. (b) P.W.2 and the severely injured Vijay were taken to Villupuram Government Hospital. After giving first aid, they were taken to Jipmer Hospital, Pondicherry where both P.W.2 and the deceased were given treatment. P.W.10 doctor attached to the hospital gave treatment and the accident register was marked as Ex.P10 and thereafter, despite treatment Vijay died at 5 ' o' clock. (c) P.W.1 proceeded to the respondent police station and gave a complaint Ex.P1 to P.W.11 Inspector of Police at about 7.45 a.m. On the strength of Ex.P1 report, a case came to be registered in Crime No.459/2004 under section 324 and 302 I.P.C. THE express F.I.R. Ex.P11 was despatched to Court. (d) P.W.11, Investigating Officer took up investigation. He proceeded to the spot, made in inspection and prepared Ex.P4 observation and drew a rough sketch Ex.P12 in the presence of witnesses. He recovered the material objects from the place of occurrence including the blood stained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body of the deceased in the presence of witnesses and prepared inquest report Ex.P13. THEreafter, the dead body was subjected to post mortem. (e) On receipt of the requisition, P.W.8 doctor attached to the Government Hospital, Pondicherry conducted autopsy on the dead body of the deceased and gave his opinion through the content of post mortem certificate Ex.P.8 and also as a witness before the Court that the deceased would appear to have died of head injuries. Pending investigation, A2 and A3 were arrested on 5.4.2004. A2 came forward to give confessional statement and the admissible part of the same is marked as Ex.P2 and pursuant to which he produced M.O.1 Veetch aruval and M.O.2 knife and both the accused were sent for judicial remand. When A1 was arrested, he gave confessional statement and the same was recorded. He also was sent for judicial remand. (f) P.W.10 doctor gave treatment to P.W.2 and the accident register Ex.P.10 was produced before Court. All the material objects recovered from the place, from the dead body and weapons of crime recovered from the accused pursuant to their confessional statement were subjected to chemical analysis. Pending investigation, it was found that the deceased belonged to scheduled caste community. Under such circumstances, the case was handed over the Deputy Superintendent of Police, Villupuram. (g) P.W.12, Deputy Superintendent of Police, took up further investigation. He obtained the community certificate from the concerned Tahsildar P.W.9 in respect of the deceased and community certificate for the accused were also obtained. On completion of the investigation, the investigating officer filed a final report. (h) THE case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 18 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused were question under section 313 Cr.P.C as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witnesses were examined. Pending trial, A1 died. Hence, A1 stood abated and the trial Court proceeded as against A2 and A3 alone. THE Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable and found the accused guilty under section 302 r/w 34 and 324 I.P.C and awarded life imprisonment and two years rigorous imprisonment respectively. Hence, this appeal at the instance of the appellants.

(3.) ADDED further learned counsel, in the instant case, the trial Court has found A2 and A3 guilty for sharing the common intention along with A1. There is nothing to infer or indicate that they entertained common intention along with A1. Further, insofar as section 324 IPC was concerned, the the accused could not be found guilty under section 324 IPC. It is doubtful whether P.W.2 could have been seen the occurrence at all. Under such circumstances, the prosecution has miserably failed to prove its case.