RAMU Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 27th august, 1984 of the Court of Session, Madurai in Sessions Case No. 15 of 1983.

(2.) IT arises from these facts : ( i ) Accused 1 to 4 are the residents of Thummalappatti situate within the jurisdiction of Balagundu Police station. Accused 2 is the husband of accused 4. Accused 1 and 3 are their sons. The family of the accused is residing adjacent to the house of P. W. 4. Accused 4 is the daughter of P. W. 4 ( sic.) through his wife. P. W. 1 is the daughter (sic.) P. W. 7 is the second wife. Her husband is Mayandi Thevar (since deceased ). P. Ws. 2 and 3 are respectively her brother and sister. P. W. 3 is also married and she has been residing with her husband at Palarpatti. (ii) P. W. 4 owns a garden land at Konarkulam. The total extent of the garden land comprises of four acres. P. W. (sic.) 4 and on Maya Thevar are having equal shares in the said thottam. There is a common well with pumpset for irrigation of those lands. Out of the two acres belonging to his share, P. W. 4 conveyed one acres to accused 4 and the other one acre to P. W. 1. (iii) Accused 1 subsequently married the daughter of Maya Thevar. Thereafter, there was irrigation dispute between the family of P. W. 1 and that of the family of accused 4. Maya Thevar being the father-in-law of accused 1, joined with the family of accused 4 and offered stiff resistance to the land being irrigated with water from the common well by the family of P. W. 1. (iv) With regard to taking of the water from the common well, a wordy altercation arose between the two families on 14. 6. 1982 at 5. 30 P. M. , resulting in mutual fight leading to the filing of a complaint before P. W. 11, Sub Inspector of Police. The complaint given by the deceased against the accused was registered as Crime No. 318 of 1982 by P. W. 11 under Secs. 323 and 324, I. P. C. The complaint given by accused 2 regarding the same occurrence was also registered as Crime No. 118 of 1982 under secs. 323 and 324, I. P. C. against the family members of P. W. 1. After investigation, the case in Crime No. 118 of 1982 was referred as mistake of fact and the case in Crime No. 318 of 1982 resulted in the filing of the report under sec. 173, Crl. P. C. , before Court, which resulted in conviction and sentence of the accused. Since then, there were feelings of animosity and embittered relationship between the two families. (v) On 7. 8. 1982 at 10 P. M. accused 1 went to the house of p. W. 4, shouted and created a pell-mell situation by demanding that his mother, accused 4 should be given a share in the family properties. P. W. 4 was then not available in the house. P. Ws. 2 and 3 were then present in the house. P. W. 1, who had been there to have a courtesy call on his mother, pacified accused 1, besides telling him that he should not behave in such a fashion. (vi) On 8. 8. 1982, at about 7 a. M. the deceased went to his field in Idayankulam in connection with certain agricultural operations. At about 2 P. M. accused 1 to 4 emerged at the house of P. W. 4 and created a calamitous situation by making a hell of noise. Then P. Ws. 1 to 3 were in their house. At that time, the deceased came returning from his fields. He asked them the reason for the shouting. Immediately accused 4 went to her house, brought an aruval and knife. She gave the aruval to accused 2 and knife to accused 1. After handing over the weapons to them, she instigated them to do away with the deceased. Accused 2 inflicted a cut on the back of the deceased with aruval. On receipt of the cut, he ran towards north. Accused 1 chased him and stabbed twice on his chest. He fell down. Thereafter, accused 3 hit his chest. P. W. 2 snatched a stick lying there and beat accused 1 and twice and accused 2 once on their head. Accused 4 came there. She was also beaten by P. W. 2 on her mouth with the stick. Accused 1 to 4 ran towards west carrying away the weapons with them. Attracted by the hue and cry emerging from the scene, P. Ws. 5 and 6, residing in the vicinity in the scene of occurrence, ran there and saw the accused running away from there, carrying the weapons with them. The victim-deceased was then placed in a cot near the cattle shed of one Veeraswami and after a short-while he breathed his last. (vii) P. W. 1 accompanied by his brother P. W. 2 reached Batlagundu Police Station at 4. 30 P. M. and laid Ex. P1 complaint to P. W. 12, Sub Inspector of Police, who in turn, registered the same in Crime No. 400 of 1982. Under Sec. 302, I. P. C. He prepared express reports and sent the same to the concerned officials through the Constable P. W. 9. He also sent a V. H. F. message to P. W. 16, Inspector of police. (viii) At 6 P. M. , Accused 1, 2 and 4 appeared before p. W. 12 and give Ex. P11 complaint which was registered in Crime No. 401 of 1982. Under Sec. 324, I. P. C. P. W. 12 arrested them and sent them to the hospital. (ix) P. W. 15, on receipt of the message, proceeded to the police station and on the way he met P. W. 9 and got the copy of the express f. I. R. He then reached the station at 6. 30 P. M. and got the copy of the F. I. R. in Crime No. 400 of 1982. He reached the scene at 6. 45 P. M. After inspecting the scene, he prepared the observation mahazar , Ex. P6. He also drew a rough sketch, Ex. P14, of the scene. Between 7 and 10 P. M. , he held inquest over the body of the deceased. During inquest he examined P. Ws. 1, 2, 3 and others. Ex. P15 is the inquest report. After the inquest was over, he handed over the body of the deceased to P. W. 10 Constable along with the requisition, ex. P12 for the purpose of autopsy. He seized from the scene M. Os. 6 and 7 under Ex. P7 mahazar. Exs. P6 and P7 were attested by P. W. 8. He also examined P. Ws. 1 to 4 and 6 in connection with the case in Crime No. 401 of 1982. (x) P. W. 13, the doctor attached to the Government Hospital, Dindigul , examined accused 2 at 6. 45 P. M. and treated him for the injuries. Ex. P8 is the wound certificate. At 6. 55 P. M. he examined accused 1 and treated him for the injuries. Ex. P9 is the wound certificate. At 7. 05 P. M. , he examined accused 4 and treated her for the injuries. Ex. P10 is the wound certificate. (xi) P. W. 15 went to the hospital and examined accused 1, 2 and 4 who were taking treatment there and made arrangements to send them to court for remand. (xii) P. W. 14, the doctor attached to the Government Hospital, Batlagundu conducted autopsy over the body of the deceased at 8. 30 A. M. on 9. 2. 1982. Ex. P13 is post-mortem certificate. He opined that the injuries No. 1 and 3 could have been caused by infliction of a stab with a knife. Injury No. 5 could have been caused by the tip of the aruval. He further opined that injury No. 1 is necessarily fatal. After autopsy, P. W. 10 seized from the body M. Os. 1 to 5 and handed over the same at the police station. (xiii) P. W. 15 came to know that accused 3 surrendered before the Judicial Second Class Magistrate No. II , Madurai on 26. 8. 1982. (xiv) On 29. 8. 1982 P. W. 15 sent Ex. P2 requisition to the judicial Second Class Magistrate, Nilakkottai for sending the incriminating articles to the Chemical Examiner for the purpose of analysis. P. W. 7, the Assistant attached to the said Court sent them under the original of Ex. P3, office copy of letter, to the chemical examiner, Exs. P4 and P5 are the reports of the Chemical Examiner and Serologist respectively. (xv) After completing the formalities of the investigation, P. W. 15 laid the report under Sec. 173, Crl. P. C., before Judicial second Class Magistrate, Nilakkottai on 6. 11. 1982 for the offence under Sec. 302, I. P. C. appeared to have been committed by the accused, after referring the case in Crime No. 401 of 1982 as'mistake of fact';. (xvi) Learned Sessions Judge, upon committal framed charges under Sec. 302 read with Sec. 34, I. P. C. , against 1 and 2; under Sec. 302 read with Sec. 109, I. P. C. , against accused 4 and under Sec. 323, I. P. C. against accused 3. The accused denied the charges and claimed to be tried. (xvii) The proposition examined P. Ws. 1 to 15, and marked M. Os. 1 to 7, in proof of its case. (xviii) The accused when examined under Sec. 313, Crl. P. C., as regards the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. Accused 1 would however file a written statement in a detailed fashion narrating the circumstances under which the occurrence had happened. They did not choose to examine any witness on their side. However, they chose to mark Exs. D1 and D2. (xix) Learned Sessions Judge, on consideration of the materials placed before him and after hearing the arguments of learned Public prosecutor and learned counsel for the defence found accused 1 and 2 guilty under Sec. 302 read with Sec. 34, I. P. C. and accused 4 under Sec. 302 read with Sec. 109, I. P. C. convicted them thereunder and sentenced each of them to imprisonment for life. He found accused 3 guilty under Sec. 323, I. P. C. , convicted him thereafter and sentenced to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence, the accused have come forward with this appeal.

(3.) WHEN the attack had been mounted on the deceased, none of them went to the rescue of the deceased till upt o the successful termination of the attack, almost leading to the death of the deceased. P. W. 2 was stated to have beaten accused 1, 2 and 4 by means of a stick, causing injuries on their persons. It is not as if the beating of the accused P. W. 2 was done, when they were mounting an attack on the deceased. The evidence of P. Ws. 1 and 3 would not reveal as to what necessitated P. W. 2 to mount an attack on the accused. But P. W. 2 alone would say that the accused attempted to mount an attack on P. Ws. 1 and 3 and at that juncture seizing a stick lying there he beat the accused obviously with a view to prevent them from causing injuries to P. Ws. 1 and 3. The evidence of P. W. 2 on this aspect of the matter spells out volume of suspicion when P. Ws. 1 and 3, as earlier stated, did not speak anything at all as to any attempt having been made by the accused to amount an attack on them.