MANIKANDAN Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the Additional District and Sessions Judge made in S.C.No.119 of 2008 dated 18.11.2008 where by the accused A1 was found guilty of offence u/s.148,341,302 I.P.C, A6 was found guilty of offence u/s.148 302 I.P.C and the accused 2,3 and 8 were found guilty of offence u/s.147,341,302 r/w.149 I.P.C, the accused 4 and 5 were found guilty of offence u/s.147,302 r/w.149 I.P.C and A7 was found guilty of offence u/s.148, 302 r/w.149 I.P.C. The lower court found A8 not guilty of any offence charged against him.

(2.) THE brief facts necessary for the disposal of the appeal would be as follows:(a) P.Ws.1 to 4 are the occurrence witnesses and out of them P.W.1 and 2 are the parents of the deceased. P.W.5 is a washerman and P.W.6 is the brother of the deceased. P.W.7 and 9 are the V.A.Os P.W.8 is the sweeper, P.W.10 is an agriculturist in Vedachandur village. P.W.11 is the cycle shop owner. P.W.12 is acoconut merchant. P.W.13,14 and 15 are the agriculturists of Angalakurichi village. P.W.16 is the lineman in Malayandi pattinam. PW.17 is the V.A.O of Pongaliyur Village. P.W.18 is the Doctor and P.W.19 is the retired Deputy Collector, P.W.20 is the cycle stand owner and PW.21 is the photographer, P.W.22 and 23 are the head constables, P.W.24 is the head clerk and P.W.25 is the Sub Inspector P.W.26 is the Judicial Magistrate and P.W.27 is the Investigating Officer.(b) THE victim was the son of P.Ws.1 and 2 and brother of P.W. 6. THE case of the prosecution would be that the deceased Sakthivel had constructed Veeramathiyamman-Karupparayan temple at Angalakurichi and the accused had raised dispute for obstructing the way and road for the said temple and there were dispute between the deceased and the accused persons. THE persons in and around that area had caused public nuisance near the temple and so the deceased Sakthivel raised a wall around the temple for the purpose of keeping the said temple clean. THE persons in that area wanted space for having the pathway and hence they complained to the Tahsildar and the Sub-Collector, Pollachi, who had also passed orders there on and on that basis of the Village revenue records and the V.A.O certificate- Ex.P.16. As per documents, it was found that the pathway belong to the villagers was blocked and the deceased Sakthivel was directed to remove the said wall put up around the temple and on that dispute the accused persons and the deceased Sakthivel grew enmity.(c) In the meantime on 21.02.2006, during midnight the accused demolished the said wall. On the next day, 22.02.2006, P.W.1, P.W.2 and the deceased Sakthivel went to the Tahsildar and questioned about the demolition of the entire wall, for which A5 told P.W.1 to get lost with his son otherwise, they would demolish the temple itself. P.W.1 and P.W.2 had pacified Sakthivel and took him with them to the bus stop to catch the bus towards Kottur at Angalakurichi bus stand. On the same day at about 05.00 p.m the accused A1 to A8 assembled together and on seeing them the deceased Sakthivel had attempted to run away and the accused had chased him and hit with a coconut stick and attacked with koduval. When the deceased Satkhivel had prevented the attack, he was pulled down by A1 and had stabbed him with knife on the chest of Sakthivel and left the knife in his body. THEreafter all the accused had taken soda bottle from the nearby bakery and the accused 2 and 7 had attacked him and cut on the head of Sakthivel with koduval. Due to the injuries caused with knife, koduval knife and knife with the wooden handle and coconut stick produced as M.Os.1 to M.O.4 respectively Sakthivel died on the spot. (d) Immediately, P.W.1 had given a complaint at Kottur Police Station to the Sub Inspector of Police and the complaint was registered in Cr.No.28/2006 u/s.147,148,341,323,324 and 302 I.P.C and an Express F.I.R-Ex.P.23 was immediately despatched to Judicial Magistrate No.2, Pollachi and Investigating Officer inspected the scene of occurrence at 07.45 p.m and found the deceased Sakthivel was laid down with knife. He had prepared Observation Mahazar and Rough Sketch and had arranged for taking photographs of the dead body of Sakthivel at the scene of occurrence. THEreafter he had conducted inquest and for that he examined various witnesses and prepared Ex.P.29 Inquest Report. He had also examined P.Ws.1, 2 and 4 and the witnesses Manikandan, Kalimuthu and recorded their statement. He has sent the dead body of Sakthivel for autopsy with a requisition through the Head Constable P.W.23 and the autopsy was done by the Doctor P.W.18 on 23.02.2006 by 11.10 a.m and had found that the death of Sakthivel was due to the injuries sustained by him and also due to the profused bleeding and shock over the injuries. THE said Post Mortem Certificate was produced as Ex.P.19. Investigating Officer subsequently collected M.Os.6 to 13 from the scene of occurrence in the presence of witnesses and examined witnesses and recorded their statement. THE Investigating Officer had also seized the knife embedded on the chest of the deceased Sakthivel from the Post Mortem Doctor. THEreafter he handed over the body of Sakthivel to the relatives and had collected M.Os.16 to 19 the clothes worn by him from the body of deceased and after examining the other witnesses and recording their statements handed over the material objects to the court and arrested A5 and A6 in the presence of P.W.8 and recorded their confession statements and on the basis of the confession leading to recovery was also recorded and on that basis A6 had identified and taken M.O.2 Koduval and the Investigating Officer seized the weapons through Seizure Mahazar. He had also identified the place where A4 destroyed the shirt of the deceased by putting fire. THEreafter he produced the said accused for remand. Similarly A1 was arrested by the Investigating Officer on 01.03.2006 at 06.00 p.m in the presence of witnesses and recorded his confession statement from him and according to the said confession leading to recovery, he seized T.V.S Victor motor cycle - M.O.14 from the Abirami cycle stand near Pollachi bus stand. He had also recorded statement from the witnesses of the seizure. THE blood stained white shirt was seized as per confession of A1 leading to disclosure through Mahazar and thereafter he arranged for the remand of A1 to judicial custody. He had also sent the seized material objects to court and examined witnesses and recorded their statements. Similarly he had also arrested A7 and A8 in the presence of witnesses and recorded the confession statement given by A8 alone.(e) Investigating Officer also examined P.W.11 and recorded his statement. Since A2 and A3 surrendered before Judicial Magistrate, Pollachi on 06.03.2006 and 08.03.2006 he submitted a requisition for recording statement of witnesses P.W.1, P.W.2 before the Judicial Magistrate u/s.164 Cr.P.C and accordingly P.W.1, P.W.2 and one Arukutty @ Arumugam and Manikandan were examined by the learned Judicial Magistrate u/s.164 Cr.P.C. THE Investigating Officer had also obtained police custody regarding A2 and A3 and it he examined and recorded confession statement from A2 and A3 and on their confession A7 was arrested on 11.04.2006 and his confession statement was also recorded by the Investigating Officer and in pursuance of the said confession leading to recovery, he had seized M.O.3 knife from the bushes in Manjanaickanoor palayam on the Udumalpet road through Seizure Mahazar and had also sought for remand against A7. He had also submitted requisition for sending M.Os for Forensic examination and thereafter obtained the Chemical Observation report and serology report from the said laboratories and completed the investigation and filed the charge sheet u/s.147,148,341 and 302 r/w 149 I.P.C.

(3.) AGGRIEVED by the judgment of conviction passed against the accused A1 to A7, the appellants/accused have preferred the present appeal. The learned counsel for the appellants A1, A2, A4 to A7 and A3 while collectively submitting their arguments would insist that the lower court without properly appraising the evidence had wrongly ended in conviction against A1 to A7 and the evidence of prosecution witnesses were not properly scrutinised and weighed by the lower court. They would further submit that the evidence of P.W.1 and P.W.2 who were the eye witnesses were considered by the lower court and had given credit and based upon their evidence A1 to A7 were convicted under various sections. It is also argued that out of eye witnesses P.Ws.1 to P.W.4, P.W.3 and P.W.4 turned hostile and the evidence of P.W.1 and P.W.2 are none other than the parents, who are interested witnesses and their evidence are full of contradictions and it cannot be believed. He would also point out the admissions made by P.W.1 in cross examination to the effect that he had seen the police constable at the scene of occurrence and both P.W.1 and P.W.2 did not intervene the stopping of their son as various persons stabbed on him and murdered him. It is also stressed that P.W.1 had categorically admitted that the accused had neither stabbed nor beat his son. These contradictions according to the learned counsel for the appellants would not only affect the evidence but also falsify the entire evidence of P.W.2 who was stated to have accompanied P.W.1 to the scene of occurrence. He would further submit in his argument that P.W.2 also would not have been present at the scene of occurrence and the entire evidence of P.W.1 and 2 could not be relied upon. He would again submit that the evidence of P.W.1 and P.W.2 even if true had not spoken about several injuries found on the body of the deceased and this would bloom large over the suspicion over the evidence of P.Ws 1 and 2. He would further submit in his argument that the alleged occurrence was said to have happened on 22.02.2006 by 05.00 p.m and the Police Station was only five minutes walk distance from the scene of occurrence, however the F.I.R reached the court very belatedly and it would leave a presumption that it has been concocted for the purpose of implicating the accused.