ANANDARAJ Vs. STATE

JUDGEMENT

(1.) THE above two appellants, who were originally accused 1 and 2, have filed this appeal, challenging their conviction by the trial Court. Originally there were ten accused, who were tried for the offence of entering into a criminal conspiracy to murder one Velusamy as also one Bomma Naicker, father of Palanichamy (A -9). The accused were also charged for forming an unlawful assembly and committing the murder of Velusamy in pursuance of the common object of the unlawful assembly. The second accused was additionally charged substantively for attempting to cause the murder of one Chinnasamy (PW -2). Additionally, all the accused were also charged for rioting being armed with dangerous weapons. Barring the two appellants, all the accused have been acquitted of all the other charges. The trial court has not accepted the case of conspiracy, as alleged by the prosecution, and has chosen to convict the first appellant for the offence under Sec. 302 IPC simpliciter for having caused murder of Velusamy and sentenced him to suffer life imprisonment. The second appellant has been convicted for the offence under Sec. 307 IPC for having attempted to cause the murder of Chinnasamy (PW -2) and sentenced him to suffer rigorous imprisonment for seven years.

(2.) THE prosecution story is as under: Anandaraj (A -l) and the deceased Velusamy were neighbours. While Velusamy's house was on the northern side, the house of Anandaraj was on the southern side. For reaching the house of Velusamy, one had necessarily to go through the house of Anandaraj and this was resented by Anandaraj. The prosecution contended that about one year prior to the incident, the nephew of Velusamy had died and when the dead body was tried to the taken through the house of Anandaraj, that was objected to. There were complaints given and it was only after police intervention that the body was allowed to be taken. It is an admitted position that, there is a civil dispute pending between these two persons on account of the disputed pathway and, therefore, the village has been divided into two factions -one supporting the deceased Velusamy and the other, the first accused Anandaraj.

(3.) LEARNED counsel relies on the celebrated judgment, reported in, 1993 SCC (Cri.) 583 (Subran alias Subramanian and others v. State of Kerala). Learned Counsel particularly invited our attention to paragraph 8 of this judgment and pointed out that the Apex Court had found therein that initially six accused persons were chargesheeted for an offence under Sec.302 IPC read with Sec.149, while none of the accused persons individually had been charged for the substantive offence of murder under Sec.302 IPC.