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 (P.W.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, I.P.C. simpliciter for having caused the murder of Velusamy and sentenced him to suffer life imprisonment. THE second appellant has been convinced for the offence under Sec.307, I.P.C. for having attempted to cause the murder of Chinnasamy (P.W.2) and sentenced him to suffer rigorous imprisonment for seven years.

(2.) THE prosecution story is as under: Anandaraj (A-1) and the deceased Velusamy were neighbours. While Velusamy's house was on the northern side, the house of Anandaraj 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 be 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. THE prosecution alleged that, on 28.7.1987, there was a clash between the two groups, for which reports were given by both parties to the Vellianai Police Station, in whose jurisdiction comes the village Chinnamanaickenpatti, where the parties lived. THE prosecution further alleges that, on 30.7.1987, at about 10.00 p.m. Chinnabommanaicker (P.W.1), Chinnaraj (P.W.4), Subbanaicker, Muthusamy and other persons were sitting under a Vathanarayanan tree in the village. While they were so chit-chatting, accused 1 to 8 came there on four bi-cycles and passed them without doing anything. After some time, the accused persons came back at that time, the first accused accosted Velusamy as to why he had filed a case against the accused and tried to assault Velusamy with aruval. At the same time, the second accused accosted Chinnasamy (P.W.2) that he has supporting Velusamy,and therefore, he should not be spared and tried to assault him with aruval. According to prosecution while Velusamy could run away, Chinnasamy (P.W.2) could over the distance of hardly about 10 to 15 feet when he was assaulted by the second accused with aruval. Since he warded off the blow, his hands were cut and the second accused also assaulted on his back and, as a result, Chinnasamy (P.W.2) fell down. THEreafter, all the eight accused gave a hot chase to Velusamy. who was running away and after coming upto a particular distance in the field of Rajunaicker, Velusamy was surrounded by the accused and assaulted, firstly by Anandaraj (A-1), who dealt a blow with aruval on his neck, as a result of which Velusamy fell down and started entreating the accused persons not to assault him. At that time, Krishnan (A-2) also assaulted Velusamy as a result of which his hands were cut. THEreafter, all the other accused persons started assaulting Velusamy as a result of which Velusamy died on the spot. Velusamy received about seventeen injuries. THEreafter, the accused persons took to heels. Chinnasamy (P.W.2), who was lying injured near the Vathanarayanan tree, was then taken to Government Hospital at Karur in an autorickshaw and Chinnabommanaicker (P.W.1) proceeded to the Vellianai police station to lodge a First Information Report. THE investigation agency sprang into action and the Investigating Officer (P.W.14) reached the spot of occurrence. THE necessary spot observation mahazar, inquest mahazar, etc. were effected. THE statements of the witnesses were also recorded, including the statement of Chinnasamy (P.W.2), which was recorded in the hospital. THE corpse of Velusamy was sent for post-mortem examination, which was done on the next day by Dr.Shanmuganathan (P.W.3). THE accused persons were surrendered later on before the court. Some of the accused persons have discovered the aruvals, including the weapons used in the murderous attack. It also turned out that there was also a conspiracy hatched by the group belonging to Anandaraj (A-1) to eliminate one Bommanaicker, who is none else but the father of Palanichamy (A-9) as the ninth accused resented the way in which his father Bommanaicker had partitioned his property. Bommanaicker was a fortune-teller and he had earlier partitioned his property between his two sons, including Anandaraj (A-1) and had retained some lands for himself, perhaps for his daughter, Kanagammal. THE deceased Velusamy was on the side of Bommanaicker as also his daughter Kanagammal and, probably, because of that it was conspired that both Velusamy as well as Bommanaicker should be murdered. At the trial, however, the prosecution restricted itself to the murderous attack on Velusamy alone and the aspect of conspiracy to murder Bommanaicker was not seriously pursued by the prosecution perhaps because Bommanaicker himself, who was said to be the object of the conspirators and examined as P.W.5, turned hostile, THE prosecution examined three eye-witnesses, they being Chinnabommanaicker (P.W.1) Chinnasamy (P.W.2) and Chinnaraj (P.W.4). THE prosecution also relied on the medical evidence of Dr.Shanmughanathan (P.W.3) as also on the other circumstantial evidence of recovery of aruvals. However, the trial court did not accept the prosecution case of conspiracy regarding the murder of either Velusamy or Bommanaicker and acquitted all the accused of the offence under Sec.120-B, I.P.C. THE trial court also held that the prosecution was not able to prove any offence against accused 3 to 10. It was also held that it was the first accused alone, who had caused the murder of Velusamy, while the second accused had attempted to murder Chinnasamy (P.W.2). It accordingly convicted the first accused for the offence under Sec.302, I.P.C. substantively and the second accused for the offence under Sec.307, I.P.C. THEre being no appeal by the State or revision by anybody against the impugned judgment, we have to consider the correctness of the judgment only in so far as the above mentioned two appellants are concerned.

(3.) IT must be said, at the outset, that the trial court has been extremely casual, if not negligent, while framing the charge. This was clearly a case where the charge sheet very clearly suggested the formation of an unlawful assembly with the common unlawful object. The trial court did not bother to frame a charge for an offence under Sec.149, I.P.C. independently. Accordingly to the Public Prosecutor, this was perhaps because there was already a charge of criminal conspiracy under Sec.120-B, I.P.C. This is also not correct because the incident under the Vathanarayanan tree was and could have been viewed as an independent incident and a separate alternate charge under Sec. 149, I.P.C. itself could have been framed against the accused persons giving them a clear idea of the common unlawful object of murdering Velusamy. Unfortunately, that was not done. Further, though there was a clear material available on record of the individual acts, more particularly against the accused 1 and 2, no formal separate charge substantively for an offence under Sec.302, I.P.C. was framed. The learned trial court also ignored Sec.34, I.P.C. though not completely, as we would hereafter show. Thus, the framing of the charge was a classic example of casualness, carelessness as also negligence on the part of the trial court. Learned counsel very heavily relied upon all these circumstances and claims a verdict of acquittal on this ground for the first accused from the offence under Sec.302, I.P.C. According to him, this was a confusing charge which had resulted in material prejudice. He contended that the defence and more particularly the first accused could have concentrated in his cross-examination against his individual act and could have shown that he had not in fact done anything individually had the charge for the substantive offence under Sec.302, I.P.C. been framed against him. His other contention is that in the absence of the charge with the aid of Sec.34, I.P.C. also, the accused persons, more particularly accused 1 and 2, have been totally misled.