JUDGMENT
R. Banumathi, J.
1. Accused 1, 5 and 10 in S.C.55/1996 on the file of Principal Sessions Judge, Tiruvannamalai are the Appellants. Aggrieved with the conviction for various offences (by the Judgment dated 18.12.1996), Appellants have preferred this Appeal.
2. Prosecution witnesses are related as under:-
Vellakuchi (deceased)
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—————————–
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Subramani Pandu
(P.W.2) Vennila (P.W.3)
=Ranjitham |
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Ulaganathan (P.W.1)
3. The accused parties are related as
Gopal Rajathi Chinnapaiyan Ambika
(A8) (A9) (A4) (A5)
=Velayutham
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-------------------------------------------
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Sankar Settu Daughter
(A2) (A3) = Sankar @
Jayasankar
(A1)
4. Few months, 7 – 8 months prior to the occurrence, A2 – Sankar had kidnapped Anjala, daughter of P.W.2 – Subramani and married her. Anjala and A2 are living together, which is not to the liking of both the families. Since then, there was enmity between both families. Survey No.268/12 in Kattamadavu Village belongs to Ranjitham, wife of P.W.2. On enjoyment of this vacant site, which is in between the houses of P.W.2 and A9, the parties are inimically disposed and subsisting enmity between them.
5. On 08.08.1995 – 10.00 AM A1 to A10 have formed themselves into an unlawful assembly, trespassed into the site of P.W.2 and digged pit for laying the foundation for construction of the house. P.W.2 – Subramani interfered and questioned the conduct of the accused. Upon hearing the noise, P.W.3 – Vennila, P.W.1 – Ulaganathan and deceased Vellakuchi also came in running. P.W.1 – Ulaganathan also joined P.W.2 and objected to the conduct of the accused in digging the pit for laying the foundation. Objection raised by P.Ws.1 and 2 resulted in wordy altercation between them.
6. In the course of wordy altercation and fight, the accused had inflicted injuries on P.W.1 – Ulaganathan, P.W.2- Subramani and P.W.3 – Vennila as under:
A1 Ulaganathan left forehead
Koduval (P.W.1)
A2 & A3 Ulaganathan all over the body
beat with (P.W.1)
stones & stick
*****
A4 & A5 Subramani Head & Stomach
hit with iron (P.W.2)
pipe
*****
A6 & A8 Vennila right shoulder
beat with (P.W.3) &
stick & stones left thigh
A9 Vennila right wrist
bitten (P.W.3)
*****
A10 deceased head & stomach
beat with stick Vellakuchi
The occurrence was witnessed by P.W.6 - Manonmani and Arumugam.
7. Injured P.Ws.1 to 3 and Vellakuchi were taken to the Government Hospital, Chengam. P.Ws.1 to 3 were admitted in the hospital as in-patients. P.W.4 – Dr. Abdul Jabbar treated P.Ws.1 to 3. Noting the injuries on P.Ws.1 to 3, P.W.4 issued Exs.P-2 to P-4 – Wound Certificates. No external injury was found on the person of Vellakuchi. However, she was given treatment. She remained in the hospital along with P.Ws.1 to 3.
8. P.W.10 – Head Constable, MelChengam received intimation from the Hospital about the admission of injured P.Ws.1 to 3 in the hospital and Vellakuchi. On receipt of intimation, P.W.10 went to the hospital and recorded Ex.P.1 – Statement from P.W.1. On the basis of Ex.P.1 – Statement, a case was registered in Crime No.260/95 under Secs. 147, 148, 324 and 323 IPC. Ex.P-16 is the First Information Report.
9. Accused 2, 3 and 9 have also sustained injuries and were admitted in the hospital. P.W.10 – Head Constable recorded Ex.P.25 – Statement from A2. On the basis of Ex.P.25, a case was registered in Crime No.261/1995 under Secs. 147, 148, 324 and 323 against P.Ws.1 to 3 and one Pandu and Karupannan. Ex.P-17 is the First Information Report.
10. P.W.11 – Inspector of Police had taken up investigation in both cases in Crime No. 260/1995 and 261/1995. Scene of occurrence – Kattamaduvu Village – houses of P.W.2 and A2 was inspected in the presence of witnesses. Ex.P.10 – Observation Mahazar and Ex.P.20 – Rough Plan were prepared on the scene of occurrence. Blood stained mud and sample mud (M.Os.6 and 7) were seized under Ex.P.11 – Seizure Mahazar.
11. On 09.08.1995 – 5.30 PM Vellakuchi, who was in the hospital, died of injuries. On receipt of death intimation, the case was altered into Sec. 302 IPC under Ex.P.18 – Express Report. P.W.11 – Inspector of Police had taken up further investigation.
12. On 09.08.1995 – 7.00 – 9.00 PM Inquest was held on the body of deceased Vellakuchi examining the witnesses in the presence of Panchayatdhars. Panchayatdars opined that the death was due to the assault – head injuries caused during the occurrence. Ex.P.19 is the Inquest Report. After inquest, the body was sent to autopsy.
13. Pursuant to requisition from the Inspector of Police, P.W.5 – Dr. Navaneetham Dhanalakshmi had conducted the autopsy on deceased Vellakuchi and noted
(i) a fracture over the skull well above the occipital protruberance in the middle;
(ii) small wound over the posterior aspect of parietal lobe (cerebrum) left side;
P.W.5 opined that the deceased would appear to have died of shock and haemorrhage due to fracture of skull. Ex.P-8 is the Post Mortem Certificate.
14. A3, A4, A7 and A10 were arrested on 10.08.1995 at 4.00 AM. On the basis of the confession statement from A4, M.O.2 – iron pipe and M.O.5 – stick were seized under Ex.P.21 – Mahazar. On the same day at 12.00 Noon, A2, A6 and A9 were arrested. On the basis of the confession statement of A2, M.Os.1, 3 and 4 (Koduval and two sticks) were seized under Ex.P-23 – Mahazar. On 25.08.1995 – A1 and A8 were arrested.
15. The case registered in Crime No.261/1995 was also taken up for simultaneous investigation along with this case in crime No.260/1995. Accused 2, 3 and 9 have sustained injuries in the transaction. Exs.D-1 to D-3 are the wound certificates of A3, A2 and A9 respectively. Upon investigation, the case in Crime No.261/1995 was referred as mistake of fact (Ex.P.24 – Final Report).
16. On completion of investigation, accused 1 to 10 were charge sheeted for the offences under secs. 147, 148, 302, 324, 323, 447 read with 149 IPC.
17. To substantiate the charges against the accused, in the trial court, Prosecution has examined P.Ws.1 to 11. Exs.P-1 to P-25 are marked. M.Os.1 to 10 are remanded to the Court. On the side of the defence, Exs.D-1 to D-3 are marked. The accused were questioned under Sec. 313 Crl.P.C. about the incriminating evidence and circumstances. A2, A3 A9 filed separate statement in writing stating that they are in possession of poramboke site. They have further stated that P.Ws.1 to 3 aggressively gathered against them and one Pandu had cut A2 with Koduval and other Prosecution witnesses party have hit them and A2, A3 and A9 sustained injuries.
18. Upon consideration of the evidence, the learned Sessions Judge found that the fight originated when the accused tried to dig trench for laying the foundation and in the fight, both parties sustained the injuries. That P.Ws.1 to 3 and deceased Vellakuchi sustained injuries is well proved by the cogent and consistent evidence of P.Ws.1 to 3, corroborated by the medical evidence. Pointing out Ex.P.8 – Post Mortem Certificate and finding that the death is a homicidal one, the learned Sessions Judge rejected the defence that death of Vellakuchi was a natural one which the Prosecution witnesses party have tried to take advantage to foist false case against the accused.
19. On the above findings A1 to A6, A8, A9 and A10 were convicted for various offences as noted below:
Charge
1
Gist of offence
2
Against which accused
3
Finding
4
1
U/s. 147 IPC
Unlawful Assembly and rioting
A1 to A10
Accused 1, 3 to 6 and 8 to 10 – convicted u/s. 147 IPC.
Fine- Rs.200/- imposed.
1
2
2
U/s. 148 IPC
Rioting – Armed with deadly weapon-
Koduval
3
A1
4
A1 found guilty. Convicted u/s. 148 IPC.
3 months RI.
3
U/s. 447 IPC for committing criminal trespass into the land of Ranjitha, w/o. P.W.2.
A1 to A10.
Accused 1,2,3 to 6 and 8 to 10 found guilty. Convicted u/s. 447 IPC. Fine of Rs.200/- imposed.
4
U/s. 324 IPC for causing injury to P.W.1 – Ulaganathan.
A1
A1 found guilty. Convicted u/s. 324 IPC. RI for one year.
5
U/s. 323 IPC for causing injury to P.W.1 – Ulaganathan
A2 and A3
A2 and A3 found guilty and convicted u/s. 323 IPC. Fine of Rs.200/= imposed.
6
U/s. 323 IPC for causing injury to P.W.2 Subramani
A4 and A5
A4 and A5 found guilty. Convicted U/s. 323 IPC. Fine of Rs.200/- imposed.
7
U/s. 323 IPC. for causing injury to P.W.3 -Vennila
A6 and A7
A6 found guilty and convicted u/s. 323 IPC. Fine of Rs.200/- imposed.
8
U/s. 324 IPC for causing injury to P.W.3 -Vennila
A9
A9 found guilty and convicted u/s. 323 IPC. Fine of Rs.200/= imposed.
1
9
2
U/s. 302 IPC for causing death of Vellakuchi.
3
A1 to A10
4
A10 found guilty u/s. 304(ii) IPC and sentenced to undergo R.I. for three years. A1 to A9 acquitted of the charge.
A7 was acquitted of all the charges.
20. Aggrieved over the conviction, Accused 1, 5 and 10 have preferred this Appeal. Contending that only the accused party are in possession of the vacant site and that only the Prosecution witnesses were trying to trespass into the same, the learned counsel for the accused submitted that this aspect was not properly appreciated by the trial court. Laying emphasis upon the injuries sustained by Accused 2, 3 and 9, it is submitted that the injuries on the person of accused are not explained and that the Prosecution has suppressed the origin and genesis of the occurrence. Contending that the Prosecution case unfolded by the evidence of the witnesses suffers from infirmities, the learned counsel assailed Ex.P.1 – Statement for its delay and submitted that it could not have come into existence as alleged. Pointing out that no external injury was caused to Vellakuchi and that her natural death had been taken advantage of by the Prosecution witnesses party and that the trial court erred in convicting A10 for the offence under Sec. 304(ii) IPC, it is submitted that in any event, even if the Prosecution case is to be proved, A10 could only be convicted for the offence under Sec. 323 IPC and the conviction under Sec. 304(ii) IPC cannot be sustained. As the last submission, the learned counsel also prayed for admonition of the Appellants under Sec. 360 Crl.P.C.
21. In response, the learned Government Advocate (Criminal Side) has submitted that the injuries caused to Vellakuchi and the overt act of A8 and A10 is well spoken to by P.Ws.1 to 3, which is substantiated by the medical evidence. It is submitted that the death is proved to be due to assault and hitting of Vellakuchi by A10, the trial court rightly convicted A10 under Sec. 304(ii) IPC. Further submitting that A2, A3 and A9 sustained only simple injuries, the learned Government Advocate submitted that no duty is cast upon the Prosecution to explain the injuries and that no exception could be taken for the fair investigation. The learned Government Advocate has also drawn the attention of the Court that the First Information Report in Crime Numbers 260/1995 and 261/1995 were received in the Court on 09.08.1995 – 4.15 PM which cannot be said to be unreasonable.
22. Upon consideration of the submissions of the Appellant and the Government Advocate, judgment of the trial court and other materials on record, the following points that arise for consideration;
(i) In the light of simple injuries sustained by A2, A3 and A9, can it be said that the Prosecution has not come out with the true version ?
(ii) Whether guilt of A1, A5 and A10 and other accused based on Ex.A-7 Post Mortem Certificate is proved beyond reasonable doubt ?
(iii) Whether the conviction and sentence of imprisonment warrants any interference ?
23. CONVICTION U/S. 447 IPC (CHARGE NO.3)
The parties are inimical on two counts;-
(i) About 7-8 months prior to the occurrence, A2 had kidnapped Anjala, daughter of P.W.2 and married her. Both of them are living together much to the disliking of both families;
(ii) on enjoyment of land in Survey No. 268/12 in Kattamaduvu village belonging to Ranjitham, wife of P.W.2 and the accused party making rival claim.
In Ex.P.20 – Plan, Anna Street is the east-west Street. On its southern side are houses of 9th accused(Rajathi) and P.W.2. Serial No.3 (in Ex.P.20) is the house of Rajathi – A9. Serial No.4 (in Ex.P.20) which is of further southern side is the house of P.W.2. Just on the southern side of A9’s house is the disputed site, which stands in the name of Ranjitham. To show that patta stands in the name of Ranjitham, no document or the certificate from the Village Administrative Officer is produced.
24. A1 to A-10 are charged for the offence under Sec. 447 IPC. To constitute the offence of criminal trespass, the Prosecution is to prove that the Prosecution witnesses are in possession of the Property. Though no revenue document is produced, P.Ws.1 and 2 have clearly spoken about the ownership and their possession in Survey No.268/12, Kattamaduvu Village – in between the houses of A9 and P.W.2. Possession of the disputed site was also brought out by the objective findings during investigation as is noted in Ex.P.10 – Observation Mahazar.
“uhrhj;jp tPl;ow;F bjd;g[wk; gpd;dhy; Rg;gpukzp kidtp u”;rpjj;jpd; nghpy; gl;lh th’;fg;gl;l fhyp epyk; cs;sJ@/
Such assertion by the Investigating Officer as to the ownership of Ranjitham though by itself is not a substantive evidence, it goes a long way in strengthening the version of the Prosecution. By the evidence of P.Ws.1 and 2, the Complainant Party are proved to be in possession of the disputed site.
25. The occurrence originated in connection with the trespass by the accused 1 to 10 on 08.08.1995 – 10.00 AM. Accused 1 to 10 gathered together and started digging trench for laying the foundation. When P.W.2 enquired and questioned their conduct, the accused proceeded in digging the trench. P.W.1 also joined P.W.2 and objected to the conduct of the accused in laying foundation, which resulted in wordy altercation and fight between the parties. P.W.3 Vennila and deceased Vellakuchi also questioned the conduct of the accused.
26. The accused party claimed to be in possession of the vacant site. Though they claimed to be in enjoyment of the vacant site, the accused have not produced any document substantiating their possession or title. Their entry into Survey No.268/12 and digging the trench and the criminal trespass are proved by the consistent version of P.Ws.1 to 3. Unlawful entry of the accused into the site with unlawful intention amounts to commission of the offence within the meaning of Sec. 447 IPC. Their intention to commit the offence could be gathered from various circumstances. On 08.08.1995 it is not one or two persons gathered in digging the trench. At least ten persons have gathered. Perhaps to meet any eventuality and resistance while they are digging the pit. Thus, the entry of the accused is not mere passive presence; but with intention to forcibly occupy by digging the trench for laying the foundation. When being questioned by P.Ws.1 and 2, reacting to the same, the accused hit P.Ws.1 to 3. The sole intention of the accused and that they were actuated with the intention of criminal trespass and retaining possession thus could be gathered from the attending circumstances.
27. The accused claimed to be in possession and attempted to set up a bonafide claim of title to the vacant site. No documents are produced to show the bonafide claim of title or possession excepting bare suggestion to the witnesses. When the accused had no bonafide claim of title, their entry into the site and digging trench inspite of warning by P.W.2, clearly shows that A1 to A6 and A8 to A10 have committed the offence of criminal trespass. Absolutely, no semblance of evidence showing that the accused had acted under bonafide claim. On the evidence of P.Ws.1 and 2 and other circumstances, the learned Sessions Judge had rightly convicted A1 to A6 and A8 to A10 for the offence of criminal trespass under Sec. 447 IPC (Charge No.3).
28. Conviction under Secs. 147 and 148 IPC (Charge Numbers 1 and 2):
Presence of the accused is well spoken to by P.Ws.1 to 3. Common object of the unlawful assembly could be inferred from the facts and the conduct of the parties. As discussed earlier, all the accused have gathered together to dig the trench. It was not mere passive presence; but actually engaged in digging the pit. When P.Ws.1 and 2 questioned them, the accused violently reacted to the same. Thus the common object of the unlawful assembly, viz., the criminal trespass and to cause injuries to the Prosecution witnesses and Vellakuchi is also well brought out by the evidence. Finding of the learned Sessions Judge that Accused 1 to 6 and 8 to 10 have formed themselves into an unlawful assembly with the common object and their conviction under Sec. 147 and 148 IPC is to be sustained (Charge Numbers 1 and 2).
29. In the wordy altercation, A1 inflicted cut injury on P.W.1 on the left forehead with Koduval. A2 and A3 had beaten P.W.1 Ulaganathan with stones and stick. A4 and A5 had hit P.W.2 – Subramani on the head and stomach. A6 and A8 have assaulted P.W.3 with stick and stones. While, Vellakuchi tried to intervene, A10 had hit her with stick on the head and stomach. A8 also hit the deceased Vellakuchi with hands. P.Ws.1 to 3 have clearly narrated about the occurrence.
30. Evidence of P.Ws.1 to 3 is assailed mainly on two grounds;
(i) in narrating the occurrence and the overt acts of the accused, evidence of P.Ws.1 to 3 suffers from severe discrepancies and contradictions;
(ii) Accused 2, 3 and 9 sustained the injuries. Non- explanation of the injuries to the accused and pleading ignorance of the injuries to the accused by the Prosecution witnesses party seriously undermines their testimony.
Evidence of injured witnesses – P.Ws.1 to 3 has to be tested for its credibility in the light of the above contentions urged by the Appellants.
31. To substantiate the first limb of arguments that the evidence of P.Ws.1 to 3 suffers from contradictions, the learned counsel for the Appellants produced a chart containing the overt act of each of the accused relating to the injured witnesses and the situs of the injuries. By reading of the chart, I do not find any variation at all excepting minor contradictions. Those minor contradictions are trivial regarding the overt act of some of the accused. But these are only small trivialities, which are due to normal perception and observation. The contention urged is to be viewed in the light of whole setting of the facts. When the Prosecution witnesses are surrounded by at least ten accused persons attacked, variation regarding the overt act and the situs of the injuries are bound to occur. That would not in any way undermine the reliability of P.Ws.1 to 3.
32. Next point urged is the non-explanation of injuries on the person of A2, A3 and A9, who sustained injuries in the same transaction. As per the defence version, on 08.08.1995 – 10.30 AM when they were digging the trench, P.W.2 – Subramani and his wife Ranjitham and P.W.1 – Ulaganathan and others came questioning the right of the accused in laying the foundation, which resulted in the wordy altercation. Further defence is that one Pandu assaulted A2 and A3 with Koduval and beat A9 Rajathi with stick and P.W.1 Ulaganathan and one Karuppanan also beat A2, A3 and A9 and P.W.3 had also beaten A9 Rajathi with stick. As to the injuries sustained by the accused, a case is registered in Male Chengam P.S. Crime No.261/1995. In Ex.P.1 – Complaint, injuries sustained by the accused are neither mentioned nor explained.
33. Exs.D-2, D-1 and D-3 are the Accident Registers relating to accused 2, 3 and 9 respectively. From those Accident Registers
A2 sustained injuries }(i) incised right little
(as per Ex.D2) } wound finger, palmer
} aspect; left
} palm between
} thumb and index
} finger.
}
}(ii)abrasion right shoulder
(simple in nature)
A3 sustained injuries } abrasion right shoulder;
(as per Ex.D1) } big toe (right)
(simple in nature)
A9 sustained injuries } contusion right side face
} below; right
} shoulder
}
(simple in nature)
That A2, A3 and A9 sustained injuries in the same transaction is brought out by the defence by the medical evidence.
34. When P.W.1 was questioned about the injuries on the person of the accused, he has denied the same though he has admitted that A2, A3 and A9 had come to the hospital for treatment. The answer elicited from P.W.1 on the injuries to the accused is as
@rk;gt rkak; vjphpfSf;F ve;j fhaKk; Vw;gltpy;iy/ eh’;fs; vjphpfis jpUg;gp mof;ftpy;iy/ 2tJ vjphp r’;fh;. 3tJ vjphp nrl;L. 9tJ vjphp uh$hj;jp Mfpnahh; kUj;Jtkidf;F rpfpr;irf;F te;jpUe;jhh;fs;///@
In the same vein, P.W.3 Vennila has also pleaded ignorance about the injuries to the accused. Laying stress upon the above answers elicited from P.W.1 and non-explanation of injuries to the accused, the veracity of P.Ws.1 to 3 is assailed on the ground that they are not truthful witnesses and that no reliance could be placed upon their testimony. Mere non-explanation of injuries on the person of the accused by the Prosecution witnesses does not ipso facto lead to the conclusion that the Prosecution witnesses are not giving truthful version nor does it suggest that the Prosecution has not come out with the true version.
35. Duty is cast upon the Prosecution to explain the injuries sustained by the accused,
(i) if it is not superficial or simple in nature;
(ii) if the injuries are caused in the course of the same transaction;
Where the injuries sustained by the accused are simple in nature, non-explanation of the injuries would not affect the Prosecution case. As noted earlier, A2, A3 and A9 sustained only simple injuries. Further, the case of the Prosecution rests upon the consistent evidence of the injured witnesses P.Ws.1 to 3. The fact that P.Ws.1 to 3 are injured and the nature of injuries sustained by them and deceased Vellakuchi outweighs the effect of omission to explain the injuries on the person of accused. The contention urged assailing the reliability of P.Ws.1 to 3 on the ground of non-explanation of injuries to the accused cannot be sustained.
36. P.Ws.1 to 3 are injured in the occurrence. Sustaining injuries is well proved by unimpeachable medical evidence as noted below:
As per Ex.P-2, P.W.1 sustained injuries:-
(i) Incised wound .. left side forehead
(ii) Contusions .. right side forehead; right
hand just below elbow
joint; left hand just below
elbow joint;
(iii) Abrasion .. right side face.
As per Ex.P-3, P.W.2 sustained injuries:-
Incised wound .. right side scalp; left side
scalp; left side scalp
(adjacent to the 2nd one)
As per Ex.P-4, P.W.3 sustained injuries:-
Contusion .. right shoulder; lateral
aspect of right thigh.
Thus the oral evidence of P.Ws.1 to 3 is well consistent with the medical evidence. Since P.Ws.1 to 3 are injured witnesses, their evidence cannot at all be disbelieved.
37. P.Ws.1 to 3 being injured witnesses, their testimony stands on higher footing. The fact that they were injured as strengthened by the medical evidence lends assurance to their testimony. Evidence of injured witnesses P.Ws.1 to 3 is entitled to great weight. That apart, presence of P.Ws.1 to 3 at the time and place of occurrence cannot be doubted. Cogent and convincing ground is required to doubt the version of the injured witnesses. Absolutely, no such ground is forthcoming to doubt their testimony.
38. P.W.6 – Manonmani, resident of Kattamaduvu was also a witness to the occurrence. She has not supported the Prosecution case regarding the occurrence and she was treated hostile. Though P.W.6 was treated hostile, it does not mean that her evidence is rendered useless. She has spoken on the material aspect, viz.,
(i) that the vacant site belongs to P.W.2 – Subramani, where the occurrence took place;
(ii) upon hearing the noise, she had gone to the scene of occurrence and found P.W.1 – Ulaganathan with bleeding injuries and P.Ws.2 and 3 and Vellakuchi fallen down with injuries.
Though P.w.6 has not narrated the occurrence, by her version, the cogency of prosecution version is established. Her hostility does not in any way undermine the Prosecution case. Further, it is nothing unusual for a villager like P.W.6 to turn hostile. Such hostility of a simple rustic woman like P.W.6 would not prevent the court from acting upon the evidence of injured witnesses P.Ws.1 to 3.
39. Yet another incriminating circumstance against the accused could be pointed out. On 10.08.1995 accused 3, 4, 7 and 10 were arrested. Confession statement of A4 lead to the recovery of iron pipe (M.O.2) and one kombu (M.O.5) which were seized under Ex.P.21 – Mahazar. Likewise, confession statement of A2 lead to recovery of one Koduval (M.O.1) and two sticks (M.Os.3 and 4), which were seized under Ex.P.23 – Mahazar. Recovery of the blood stained weapons wielded during the occurrence is the yet another incriminating circumstance against the accused, which the accused have not satisfactorily explained.
40. Having carefully gone through the evidence of P.Ws.1 to 3, I find their evidence remains unshaken. There is nothing to doubt their testimony on the injuries sustained by them and on the overt act of A10 causing injury to deceased Vellakuchi.
41. Assailing the case of the Prosecution, the learned counsel for the accused interalia urged the following grounds;
(i) for the counter case registered in Crime No.261/1995, Order 588A of Police Standing Orders (for short P.S.O) was not followed;
(ii) there is enormous delay in sending the First Information Report.
As said earlier, while P.W.10 – Head Constable went to the hospital on 08.08.1995 – 5.30 PM, he has examined A2 and recorded his statement Ex.P.25. On the basis of Ex.P.25, a case was registered in Crime No.261/1995 under Secs. 147, 148, 324 and 323 under Ex.P.17 – First Information Report. That case was simultaneously taken up for investigation by P.W.11 – Inspector of Police along with Crime No.260/95. On the complaint lodged by the accused, the Inspector of Police has examined as many as 8 witnesses and the medical witness and recorded their statements. On completion of investigation, P.W.11 – Inspector of Police has formed an opinion that P.W.2 Subramani, P.W.1 Ulaganathan and others have only reacted to the attack on them. Further, the Investigating Officer pointed out that the injuries sustained by A2 Shanker and others are only superficial in nature and that with a view to escape from the clutches of law, the accused have come forward with the Complaint and that case was referred as ‘mistake of fact’. Ex.P-24 is the Final Report in Crime No.260/95. The details of the investigation and the formation of opinion for referring the case as mistake of fact is well elaborated in Ex.P.24. Order 588A of P.S.O. is thus well complied with and the accused cannot have any grievance on that score.
42. The occurrence was on 08.08.1995 – 10.00 AM. Ex.P.1 – Statement was recorded from P.W.1 in the hospital at 5.30 PM. The case in Crime No.260/95 was registered at 5.30 PM on 08.08.1995. Though the case was registered on the evening of 08.08.1995, it was received in the Court only on 09.08.1995 – 4.15 PM. Drawing the attention of the Court to the receipt of the First Information Report in the Court only on 09.08.1995 – 4.15 PM, it is submitted by the Appellants that the delay is not properly explained throwing doubts on the Prosecution version as setforth in Ex.P.1. As rightly pointed out by the learned Sessions Judge, case in crime No.260/95 was registered only under Secs. 147, 148, 323 and 324 and not as “Express Report”. Since the case was not registered as “Express First Information Report”, the police might not have felt the urgency in despatching the First Information Report immediately to the Court and absolutely there is no delay at all. Further, it is relevant to note that the case registered in Crime No.261/1995 on the basis of the statement recorded from the accused also received in the court at the same time – 4.15 PM on 09.08.1995. Therefore, the contention urged on the delay in receipt of the First Information Report in the Court has no merits.
43. Homicidal death of Vellakuchi:
Deceased Vellakuchi was aged 70 years. A10 had hit deceased Vellakuchi with stick on head and stomach. Though A8 is said to have beaten her with hands, there is no corresponding injury and therefore he was rightly acquitted. Only A10 was found responsible for causing injury to Vellakuchi. Along with injured witnesses P.Ws.1 to 3, Vellakuchi was also taken to the hospital. No external injury was found on her person. Though there was no external injury, she was treated in the hospital as is clear from the evidence of P.W.2 – Subramani
@kUj;Jtkidapy; vd; jhahUf;F Crp nghl;lhh;fs;/ btsp fhak; ,;y;yhjjhy; cs;nehahspahf nrh;f;ftpy;iy////@
That though Vellaikuchi was not admitted as inpatient, the fact that she was treated is also made clear by the version of P.W.3 – Vennila. The non-production of Accident Register by itself would not falsify the case of the Prosecution that Vellakuchi also sustained injuries in the occurrence.
44. Vellakuchi who was in the hospital died of injuries on 09.08.1995 – 9.00 AM. P.W.5 Dr.Navaneetham Dhanalakshmi has conducted the autopsy on the body of Vellakuchi and noted “no external injury”. Though there was no external injury, on opening the skull, she noted the following injuries;
(i) a fracture over the skull well above the occipital protruberance in the middle;
(ii) small wound over the posterior aspect of parietal lobe (cerebrum) left side;
P.w.5 is of definite opinion that the deceased died of shock and haemorrhage due to fracture of the skull. She has also agreed to the possibility of skull bone fracture being caused by blow with the stick. That Vellakuchi died of injuries is thus well proved by unimpeachable medical evidence. From the oral evidence of P.Ws.1 to 3, Prosecution has proved that A10 is responsible for causing injuries on the head, which resulted in skull bone fracture causing death.
45. Accused tried to take advantage of the age of Vellakuchi and skull bone fracture being caused by the alternative possibilities elicited from P.W.5. It was elicited from P.W.5 that the presence of blood in parietal lobe is possible due to blood pressure. It was also elicited from P.W.5 that the skull bone fracture coupled with the internal injury might be caused when an aged woman falls on the ground. Such alternative possibilities elicited from P.W.5 are only her opinion as to other alternatives. Such alternative possibilities cannot stifle the definite opinion of P.W.5 that the death was due to shock and haemorrhage due to fracture of the skull. That death of Vellakuchi was due to shock and haemorrhage does not stand in isolation. It is to be considered along with the oral evidence. When viewed together with oral evidence of P.Ws.1 to 3, the homicidal death of Vellaikuchi is clearly established. In the context of unimpeachable evidence and the version of P.Ws.1 to 3, contention urged by the accused that the death of Vellakuchi was a natural death has no force and the same was rightly rejected by the learned Sessions Judge.
46. A10 hit Vellakuchi with stick on his head and stomach. The injury was caused in a sudden fight. There was no pre-meditation. Deceased Vellakuchi was aged 70 years. Even the use of mild force would have proved fatal. Hence, the learned Sessions Judge has rightly convicted A10 for the offence under Sec. 304(ii) IPC. The sentence of imprisonment of three years Rigorous Imprisonment imposed upon A10 is also in proportion to the nature of injury caused and cannot be said to be harsh or disproportionate.
47. Upon re-appraisal of the evidence, I find that the conviction is well balanced based upon the evidence and materials on record. The trial court has rightly convicted the Appellants / Accused 1, 5 and 10 for various offences. There is no reason to reverse the finding of guilt. For the reasons stated above, finding of guilt, conviction and the sentence of imprisonment are to be sustained. This Appeal is bereft of merits and is bound to fail.
48. Therefore, the judgment of Principal Sessions Judge, Tiruvannamalai in S.C.55/1996 (dated 18.12.1996 ) convicting Appellants / A1, A5 and A10 for various offences and the sentence of imprisonment / fine amount is confirmed and this Appeal is dismissed. The trial court is directed to take immediate steps for securing the accused to commit them to prison for serving the remaining sentence.