S. Nagamuthu, J.
1. The appellants are the accused 1 to 3 in S.C.No.304/2015 on the file of the I Additional District and Sessions Judge, Tuticorin. There was yet another co-accused arrayed as accused No.4 by name, Kandhaiah. The trial Court had framed as many as 6 charges against the accused as detailed below:
|1||A1 to A4||120(B) r/w 302 IPC|
|2||A1 to A3||341 IPC|
|3||A4||302 r/w 109 IPC|
|4||A1 to A3||302 r/w 34 IPC|
|6||A1 to A3||506(ii) IPC|
|Accused||Conviction under Sections||Sentence imposed|
|A1||341 IPC||one month simple imprisonment and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one week.|
|506(ii) IPC||Six months rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for one month|
|302 r/w 34 IPC||Imprisonment for life and fine of Rs.5,000/-, in default to undergo six months simple imprisonment|
|A2 and A3||302 r/w 34 IPC||Imprisonment for life and fine of Rs.5,000/-, in default to undergo six months simple imprisonment|
3. The case of the prosecution in brief is as follows:
The deceased in this case was one Mr.Kanagaraj. P.W.1 is his brother. P.W.1 and the deceased were Auto Drivers by profession. The deceased was owning a hunting dog. He used to take the dog to the nearby forest to hunt rabbits. The 1st accused also hails from the same village. He was also owning a hunting dog. He too used to take the dog to the nearby forest for hunting rabbits. In fact, on several occasions, the 1st accused and the deceased had gone together with their respective dogs for hunting. When rabbits were caught by dogs, there arose some quarrel between the accused and the deceased as to whose dogs caught the rabbits. This quarrel went into a scuffle between them. Thereafter, on one occasion, when the 1st accused and the deceased were in the old bus stand at Kovilpatti, on account of earlier occurrence, there arose fresh quarrel between the accused and the deceased. In the said quarrel, the deceased had attacked the 1st accused. The people standing there, persuaded them and separated them. On account of the same, the first accused had developed grudges against the deceased. This is stated to be the motive for the occurrence. After the above occurrence, the 1st accused had closed his shop and went to Kayathar.
3.1. The accused 2 to 4 are stated to be the associates of the 1st accused. On 13.02.2014, around 2 pm., at East Park Road, the 1st accused was found roaming around. On seeing him, P.W.1 informed the deceased that the 1st accused had come to Kovilpatti and therefore, he should be careful.
3.2. On the same day, that was on 13.02.2014, at 9 p.m., the deceased had gone somewhere near the Fire Service Office at Kovilpatti Bazaar. It is alleged that these three accused, gave a chase to him in an attempt to attack him. All the three accused (A1 to A3) were armed with aruval. On reaching the deceased, all the three accused indiscriminately cut the deceased with aruvals. The deceased fell down in a pool of blood. The occurrence was witnessed by P.Ws.1 to 4. But they could not prevent the accused from cutting the deceased as they were all menacingly attacking the deceased with deadly weapons. After the deceased had fallen in a pool of blood, all these three accused (A1 to A3) fled away from the scene of occurrence with weapons. P.W.1 and others found the deceased dead. Thereafter, P.W.1 went to the Kovilpatti West Police Station and made a complaint at 11.30 p.m. on 13.02.2014. On the said complaint, a case was registered in Crime No.100/2014 for offences under Sections 341, 294(b), 302 and 506(ii) IPC. Since the name of the assailants, who accompanied the 1st accused were not known, he mentioned in the complaint only the name of the 1st accused and mentioned that two others accompanied the 1st accused and attacked the deceased. Ex.P1 is the complaint and Ex.P19 is the FIR.
3.3. P.W.22 took up the case for investigation. He went to the place of occurrence at 12.45 a.m. on 14.02.2014 and prepared an observation mahazar and a rough sketch in the presence of witnesses. Then, he recovered the bloodstained earth and sample earth from the place of occurrence. Then, he examined, P.Ws.1 to 4 and few more witnesses and recorded their statements. He conducted inquest on the body of the deceased and forwarded the same for postmortem.
3.4. P.W.19 Dr.Venkatesh conducted autopsy on the body of the deceased on 14.02.2014 at 8.10 a.m.. He found the following injuries:
(1)A 11 x 48 cut of scalp.
(2)19 x 6 cm cut of left shoulder.
(3)15 x 5 x 2 cm cut of left shoulder.
(4)16 x 4 x 3 cut of left shoulder.
(5)17x 4 x 3 cm cut of left neck.
(6)A cut of 20 x 4 x 58 cm left leg
(7)20 x 5 x 3 cm left neck.
(8)19 x5 x 3 cm cut of left forehead.
(9)10x 3 x 1 cm cut of left eye.
(10)4 x 2 x 1 cm right eye
(11)9x 2 x 3 cm right occipital
(12)17 x 5 x 3 cm cut of right shoulder
(13)6 x 2 x 1 cm cut of right wrist.
(14)10 x 2 x 1 cm cut of right palm
(15) A cut of 20 x 8 x 5 left thigh
(16) 18 x 3 cm fracture skull present.
Ex.P20 is the postmortem certificate. He gave opinion that the injuries found on the deceased could have been caused by weapons like aruval. He further opined that the death of the deceased was due to shock and hemorrhage due to the injuries found on the body.
3.5. P.W.22, during the course of investigation, recovered the bloodstained cloth from the body of the deceased. When the investigation was in progress, the 3rd accused voluntarily appeared before the Village Administrative Officer of Kovilpatti, on 20.02.2014 at 11.00 a.m., and he wanted to make a confession. P.W.13 allowed him to confess and then, he reduced the same into writing. Ex.P11 is the said extra judicial confession. Along with the said confession, he prepared a special report under Ex.P11. Along with Exs.P10 and P11, he took the 3rd accused to the police station and produced him before P.W.22. On such production, P.W.22, arrested the 3rd accused. While in custody, the third accused gave a voluntary confession in presence of some witnesses, in which, he disclosed the place, where he had hidden an aruval, a shirt and a hero honda motorcycle. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced the said objects. On returning to the police station, he forwarded the accused for judicial remand. He handed over the material objects recovered from him to the Court.
3.6. Since P.W.22 went on leave, P.W.21 continued the investigation. The accused 1, 2 and 4 had surrendered before the Court. P.W.21 took them into police custody. While in custody, the first accused gave a voluntary confession, in which, he disclosed the place, where he had hidden an aruval and bloodstained shirt. In pursuance of the same, he took the police and the witnesses to the place of hide out and and produced the said material objects. Similarly, the 2nd accused gave a voluntary confession, in which, he disclosed the place, where he had hidden the bloodstained shirt and an aruval. In pursuance of the same, he took the police and the witnesses to the said place of hide out and produced the said material objects. The 4th accused also gave a voluntary confession, in which, he disclosed the place, where he had hidden the TVS motorcycle. In pursuance of the same, he took the police to the place of hide out and produced the same. P.W.21 recovered the same under a mahazar.
3.7. The investigation was thereafter continued by P.W.22. At the request of P.W.22, the material objects were sent for chemical examination. The report revealed that there were bloodstains on all material objects including the aruvals recovered from the accused. On completing the investigation, P.W.22 laid charge sheet against the accused.
4. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 22 witnesses were examined, 26 documents were exhibited and 11 material objectes were marked and on the side of the accused, Form 95 dated 25.02.2014 is marked as Ex.D1.
5. Out of the said witnesses, P.Ws.1,2,3,4,5 and 6 have vividly spoken about the entire occurrence. They have stated that when they were standing near the place of occurrence, the deceased was found running, being chased by these three accused. They have further stated that on reaching the accused, all the three accused, namely, 1 to 3 cut the deceased with aruvals indiscriminately and caused his death. P.W.1 has further spoken about the complaint made by him to the police, upon which, the present case has been registered. P.W.7 has stated that when he was standing near the Dhanalakshmi Hotel, situated somewhere near the place of occurrence, the 1st accused was found fleeing away from the scene of occurrence in the motorcycle with bloodstained aruval. Thus, he rushed to the place of occurrence and found the deceased lying dead. P.W.8 has spoken about the hear say information. P.W.9 has spoken about the fact that he heard about the occurrence later. P.W.10 has stated that on 09.02.2014, when he had gone to Veerapandi Nagar, he found the accused 1 and 4. Then, short while, the accused 2 and 3 also came there. Then all the four accused went into the house situated therein. He further stated that he was under the impression that they had gone into the house to talk about the earlier occurrence.
5.1. P.W.11 has spoken about the preparation of the observation mahazar and rough sketch. P.W.12 has spoken about the confession made by the accused 1,2 and 4 and the consequential recoveries of material objects on the deposition of statements. P.W.13 has spoken about the extra judicial confession made by the 3rd accused and the recovery of material objects on the disclosure statements made to the police. P.W.14 is the Head Clerk of the Judicial Magistrate Court. She forwarded the material objects to the Forensic Lab for chemical examination as directed by the learned Magistrate. P.W.15 has stated that he handed over the FIR to the learned Magistrate at 2.50 a.m. on 14.02.2014. P.W.16 is the Constable. He has stated that he handed over the dead body for postmortem. P.W.17 is the official from the Tamil Nadu Electricity Board. He has stated that at the place of occurrence on the crucial day, there was enough light available and there was no electricity failure. P.W.18 has spoken about the registration of the case on the complaint of P.W.1. P.W.19 has spoken about the postmortem conducted and his final opinion regarding the cause of death. P.Ws.21 and 22 have spoken about the investigation done and the final report filed.
6. When the above incriminating materials were put to the accused, they denied the same as false. However, did not choose to examine any witnesses. As we have already pointed out, one document is marked on their side as Ex.D1. Their defence was a total denial. Having considered all the above, the trial Court convicted these appellants alone, however, acquitted the 4th accused. Aggrieved over the same, the appellants are before this Court with this appeal.
7. We have heard the learned senior counsel for the appellants and the learned Additional Public Prosecutor for the respondents and we have also perused the records.
8. The learned counsel for the appellants would submit that P.Ws.1 to 6 would not have witnessed the occurrence at all, because they had no business to come to the place of occurrence at the crucial time. Though attractive, we find no force in the said argument. P.Ws.1 to 6 have stated that they had gone to the Bazaar in the usual course. It was only at that time, according to them, they found the deceased being chased by the accused 1 to 3. They have further stated that on reaching the deceased, all these three accused cut the deceased indiscriminately with weapons. Thus, in our considered view, the presence of P.Ws.1 to 6, at the place of occurrence, cannot be doubted.
9. Now, the question is whether participation of the accused 2 and 3 in the occurrence has been proved by means of the evidence of these witnesses, namely, P.Ws.1 to 6. It is the positive case of the prosecution that the occurrence was at 9 p.m. on 13.02.2014. The FIR, in this case was registered at 11.30 p.m. 13.02.2014, ie., after about 2 hours of the occurrence. The police station is situated very nearer to the place of occurrence. But it had taken more than two hours for the case being registered. P.Ws.1 to 6 were together until then. Had it been true that the accused 2 and 3 were already known to these six witnesses, certainly, when complaint was made by P.W.1, he would have mentioned the names of the accused 2 and 3 also as assailants in the FIR. But, in the complaint, P.W.1 had stated that apart from the 1st accused, who was known to him, two other persons could be identified also participated in the occurrence. Thus, it is crystal clear that two other assailants, who participated in the occurrence along with the 1st accused, were not previously known to these eyewitnesses. That is the reason why there is no mention about those two assailants in the FIR. Subsequently, during the course of investigation, these accused 2 and 3 were implicated as accused. Of course, in Court, during trial, these witnesses have identified the accused 2 and 3 as assailants along with the 1st accused. But, unfortunately, there was no Test Identification Parade conducted. In the absence of the Test Identification Parade and in the light of the fact that the occurrence had taken place for a short time, in our considered view, the identification of these two accused for the 1st time in Court by P.Ws.1 to 6 cannot be believed. Thus, acting on the evidence of P.Ws.1 to 6, we cannot safely hold that the accused 2 and 3 also participated in the occurrence.
10. Now, turning to the extra judicial confession given by the 3rd accused. In our considered view, it is highly unbelievable. It is not as though P.W.13 was already known to the 3rd accused. He was a total stranger to him. If that be so, it is difficult to believe that the third accused would have chosen such a total stranger to make a confession. Thus, the said confession, in our considered view, is highly suspicious. If once the said extra judicial confession is also rejected, we find absolutely there is no evidence against the accused 2 and 3, upon which, we can safely conclude that they also participated in the commission of the crime.
11. But the learned Additional Public Prosecutor submitted that the recovery of aruval and the shirt from the possession of the 3rd accused in pursuance of the confession statement made by him would lend assurance to the case of the prosecution that the 3rd accused had participated in the occurrence. In our considered view, since we have disbelieved the extra judicial confession said to have been made by the 3rd accused to the Village Administrative Officer, P.W.13, as a corollary, we have to reject the recovery of the material objects also from his possession.
12. Therefore, we hold that so far as the accused 2 and 3 are concerned, the prosecution has failed to prove the case beyond reasonable doubts. Therefore, they are acquitted.
13. Now, turning to the case of the first accused. P.Ws.1 to 6 have vividly spoken about the motive. P.W.1 has further stated that after the earlier occurrence, the 1st accused left Kovilpatti and went to Kayathar. This, he did by closing his business. The first accused was found roaming around near the fire service station on the date of occurrence by P.W.1. P.W.1 suspected with the movement of the 1st accused. He informed the deceased about the movement of the first accused, despite that the occurrence had taken place. As we have already pointed out, we do not find any reason to doubt the presence of P.Ws.1 to 6 at the place of occurrence.
14. The learned counsel would further submit that P.Ws.1 to 6 are interested witnesses and therefore, their evidence should be doubted and rejected. This argument also does not persuade us, simply because, they happened to be closely related to the deceased, their evidence cannot be rejected. It is of course true that no one from the Bazaar has been examined. But on that score, we cannot offord to reject the evidence of P.Ws.1 to 6. Though these witnesses have been cross examined at length by the defence, nothing has been elicited to doubt their veracity. Thus, in our considered view, the first accused was the one, who cut the deceased indiscriminately along with two other assailants. According to the medical evidence, the death was due to the multiple injuries caused. Thus, in our considered view, the prosecution has proved that the death of the deceased was caused by the 1st accused along with two others.
15. The learned counsel for the appellants would further submit that there was inordinate delay in preferring the complaint and forwarding the same to the Court. This argument also, in our considered view, is baseless. As we have already pointed out, absolutely, in our considered view, there was no delay either in registering the case and forwarding the same to the Court. Thus, this argument is also rejected.
16. In view of the foregoing discussions, we hold that the prosecution has proved the case beyond reasonable doubt that it was this accused, who caused the death of the deceased along with two other assailants. Having come to the said conclusion, we have to now examine as to what was the offence committed by the 1st accused. As we have already narrated the motive for the occurrence has been clearly established. The 1st accused on returning all the way from Kayathar, gathered two of his men, gave a chase with aruval in his hands, and cut him indiscriminately. These circumstances would clearly establish that the 1st accused had definite intention to do away with the deceased. Thus, the act of the first accused squarely fall within the 1st limb of Section 300 IPC. There is no evidence to bring the act of the 1st accused under any of the exceptions to Section 300 IPC. Thus, the 1st accused is liable to be convicted for the offence under Section 302 read with 34 IPC. Similarly, he is liable to be punished under Sections 341 and 506(ii) IPC.
17. Now, turning to the quantum of punishment, the trial Court has imposed only reasonable punishment for these offences, which does not require any interference at the hands of this Court.
18. In the result, the appeal is partly allowed in the following terms:
(i) The conviction and sentence imposed on the appellants 2 and 3 are set aside and they are acquitted of all charges ;
(ii) The conviction and sentence imposed on the 1st accused/1st appellant for offence under Sections 341, 506(ii) and 302 read with 34 IPC are hereby confirmed.
(iii) Bail bonds of the appellants 2 and 3 shall stand cancelled.