JUDGMENT
M. Karpagavinayagam, J.
1. Antony Nadar, the appellant herein, was arrayed as A4 and convicted for the offence under Section 302 read with 34 I.P.C along with A1 to A3.
2. The facts in brief leading to conviction are as follows:
(a) The deceased Petchimuthu was the ‘Oor Nattamai’ of Palkattalai village. P.W.1 Pal Saravanan is his son. P.W.3 Mayandi is the nephew of the deceased. P.W.4 Balu is a relative of the deceased. All belong to the Scheduled Caste Community. The accused 1 to 3 and 5 belong to Thevar Community and the fourth accused belongs to Nadar Community.
(b) A5 Ramachandran Thevar was selling illicit arrack in various areas. On behalf of A5, Antony Nadar (A4) was selling illicit arrack in Karaiiruppu Village, which is adjacent to the village Palkattalai. PW1 Pal Saravanan used to send complaints to Police informing about the sale of illicit arrack in those areas.
(c) On 8.6.1997 at about 1.30 PM, P.W.11 Police Constable and other two Constables came to Palkattalai Village and asked PW1 Pal Saravanan, son of the deceased, to identify the illicit arrack distillers in that area. Hence, P.W.1 took the Police Constables to Karaiyiruppu area and showed A4 Antony Nadar, who was selling arrack to the villagers. On being pointed out, P.W.11 took Antony Nadar (A4) to the Police Station . Due to the above reason, the accused persons had grudge against P.W.1.
(d) The fateful occurrence took place on 8.6.1997 at about 5.30 p.m. PW1 Pal Saravanan along with his father Petchimuthu, the deceased, was proceeding to the well in the field of one Kandasamy Naicker to take bath. P.W.2 Sivaraman and one Murugan, elder brother of P.W.1, were also proceeding in the same direction. At that time, P.W.3 was grazing his cattle in the field of Kandasamy Naicker. Suddenly, the accused persons (A1 to A5) appeared in the scene and A5 instigated the other accused by pointing P.W.1 and asked them to attack P.W.1. Immediately, A1 to A4 with Aruvals in their hands came near to P.W.1 to attack him. On getting afraid, P.W.1 ran away from the scene and was standing at a distance of 30 feet. Then, all the accused began to attack the father of P.W.1, who was standing there. On receipt of injuries, the deceased Petchimuthu fell down in a pool of blood. Then, the accused threatened the witnesses that they would also attack them, if they come near to them. Thereupon, they ran away from the scene.
(e) Thereafter, P.W.1 went to the Police Station and gave a complaint to P.W.16 Inspector of Police at about 7.00 p.m. Ex.P1 is the complaint. P.W.16 registered the case for the offences under Sections 147, 148, 341 and 302 IPC. Ex.P25 is the FIR.
(f) At about 7.50 P.M., P.W.16 went to the scene of occurrence and prepared Ex.P2 observation mahazar and Ex.P26 rough sketch. He conducted inquest between 8.30 p.m. and 11.00 p.m. and examined P.Ws.3 and 5. Ex.P27 is the Inquest report. Thereupon, he sent the dead body for post-mortem.
(g) P.W.7 Doctor conducted post-mortem on 9.6.1997 at about 9.45 a.m. and found 6 cut injuries on the body of the deceased. He opined that the deceased would appear to have died of heavy cut injuries in the region of head and neck sustained by him. Ex.P6 is the post-mortem certificate.
(h) Then, P.W.16 continued the investigation and examined the witnesses. P.W.17, another Inspector of Police, took the case for further investigation.
(i) In the meantime, the accused 1 to 3 surrendered before the Judicial Magistrate, Vilathikulam on 10.6.1997. A5 surrendered on 16.6.1997 before the Judicial Magistrate, Ambasamudram. P.W.17 obtained police custody of these accused. On their confession, M.Os.5 to 7 Aruvals were recovered. P.W.17 came to know that on 23.6.1997, A4 surrendered before the Judicial Magistrate, Sankarankoil. He obtained the Police custody of A4 on 3.7.1997. However, no weapon was recovered from him.
(j) Thereafter, P.W.18 another Inspector of Police took up further investigation and examined the other witnesses. In the meantime, P.W.18 came to know that A1 to A3 and A5 involved in an earlier murder case in Cr. No. 140/97 on the file of Thalaiyuthu Police Station.
(k) P.W.19 Assistant Commissioner of Police took up further investigation. After examining the witnesses, P.W.19 completed the investigation and filed the charge sheet against the accused under Section 3(2)(v) of S.C/S.T.(P.A) Act and under Sections 148, 302 read with 34 & 109 and 506(ii) IPC.
(l) During the course of trial, on the side of prosecution, P.Ws.1 to 19 were examined, Exs.P1 to P27 were filed and M.Os.1 to 7 were marked.
(m) When the accused were questioned under Sections 313 Cr.P.C, the defence of the accused was one of total denial. They have not adduced any evidence on their behalf.
(n) The trial Court ultimately, acquitted A1 to A5 in respect of the offence under Section 3(2)(v) of the SC and ST Act and also under Sections 148 and 120-B IPC. However, the trial Court convicted A1 to A4 alone for the offence under Section 302 read with 34 I.P.C. A5 was acquitted in respect of all the charges.
(o). Challenging the conviction and sentence imposed upon A4, this appeal has been filed. Admittedly, no appeal has been filed on behalf of A1 to A3.
3. Mr. Kathirvelu, the learned counsel appearing for the appellant, would take us through the entire evidence and contend that since the case of the prosecution would bristle with several infirmities, the accused is entitled to be acquitted. According to him, even though the occurrence had taken place at 5.00 p.m, P.W.1 chose to go to the Police Station, which is situated at a distance of 3 k.m., only at 7.00 p.m. and gave Ex.P1 complaint, which was received by the Magistrate only at 12.00 p.m. and as such, the delay in lodging the complaint as well as the delay of FIR in reaching the Court has not been properly explained. Furthermore, the medical testimony adduced by P.W.7 Doctor did not corroborate the evidence of eye-witnesses P.W1 and PW3. Though initially PW3 stated about the occurrence in support of prosecution, ultimately, he did not support the prosecution when he was recalled and cross-examined subsequently and as such, the conviction cannot be based only on the strength of the evidence of P.W.1, who is the son of the deceased. Though one Murugan, another son of the deceased, was one of the eye-witnesses, he was not examined by the prosecution to prove its case and there is no reason as to why the said witness was not examined. The evidence of P.W.1 would show that so many details given in the deposition with reference to the overt acts are improvements and those details are not mentioned in Ex.P1 complaint given by him. Therefore, the conviction and sentence imposed upon the accused is not legal.
4. In reply to the above submissions, Mr. E. Raja, the learned Additional Public Prosecutor, would venture to justify the reasonings given by the trial Court for imposing conviction upon A1 to A4.
5. We have given our anxious thought to the rival contentions urged by the learned counsel for the parties and also gone through the records.
6. According to the prosecution, on 8.6.1997 at about 5.00 p.m. when the deceased Petchimuthu and his son P.W.1 Pal Saravanan were proceeding towards Kandasamy Naicker’s ‘thottam’ to take bath in the well, all the accused came and tried to attack P.W.1 and when P.W.1 ran away from the scene, the deceased, the father of P.W.1, was attacked and done to death on the spot.
7. The motive for this occurrence is that on the very same day at about 1.30 p.m., P.W.11 Constable attached to Thatchanallur Police station came and took P.W.1 to Karaiyiruppu area, where P.W.1 showed A4, who was found selling illicit arrack. After A4 was pointed out, P.W.11 arrested A4 and took him to the Police Station. According to P.W.1, A4 Antony Nadar, who was arrested by the Police, subsequently escaped from the custody. According to P.W.11, since A4 was in a drunken mood, they did not incline to take him to the Police Station and thereby left him there itself. However, the evidence of P.W.11 and P.W.1 would clearly show that at about 1.30 PM on 8.6.1997, the Police Constables came for prohibition raid and in the prohibition raid with the assistance of P.W.1, A4 illicit arrack seller was spotted. This fact has been mentioned in Ex.P1 complaint given by P.W.1. Therefore, it is clear that this is the motive for the accused person to attack P.W.1.
8. It is the case of the prosecution that A5 was the owner of the arrack shop and A1 to A3 were his associates. On coming to know that prohibition raid was conducted in the shop of A5 and A4 was shown by P.W.1, all the accused had grudge against P.W.1. Accordingly, all the accused came at about 5.00 p.m. and were proceeding towards Palkattalai village to take revenge on P.W.1. On their way, they happened to see P.W.1 going towards Kandasamy Thottam along with the deceased. According to the prosecution, A5 instigated the other accused to attack P.W.1 and when they attempted to attack P.W.1, he sped away from the place and was watching the occurrence by standing at a distance of 30 feet. Since P.W.1 escaped, A1 to A4 attacked the deceased, the ‘Oor Nattamai’, who happens to be the father of P.W.1. When all the witnesses raised alarm, the accused (A1 to A4) threatened the eye witnesses and sped away from the scene with the weapons.
9. Apart from P.W.1, P.Ws.2 to 4 are the other eye-witnesses. Unfortunately, P.W.2 and P.W.4 did not support the prosecution case. Even in their chief examination, they were treated as hostile.
10. P.W.3 is the nephew of the deceased, who was grazing the cattle in Kandasamy field also happened to see the occurrence. As a matter of fact, his name was mentioned in the complaint and in the FIR. P.W.3 has given elaborate details about the occurrence and regarding the part played by each of the accused both in chief-examination and in cross-examination. P.W.3 was examined in February 1997. But, unfortunately, when P.W.3 was recalled and examined in May 1999, he thought it fit to completely give up the prosecution case and chose to state that he did not know anything. However, it is noticed from the cross examination done by the Additional Public Prosecutor that the family members of P.W.3 were very much afraid of giving evidence against the accused. Thus, it is clear that an attempt was made by the accused persons to tamper with P.W.3 and accordingly, they succeeded in their attempt, though P.W.1 in the further cross examination after recalling, stuck to his stand supporting the prosecution case.
11. In the light of the above circumstances, we have to analyse the evidence of P.W.1.It is true that P.W.1 is the son of the deceased. But, it cannot be said that he is an interested witness. In this case, the main motive for the accused was to attack P.W.1 and not the deceased. It should not be forgotten that P.W.1 used to write letters complaining about the selling of illicit arrack by the accused persons. Even though P.W.1 belongs to Scheduled Caste Community, he was emboldened to write letters against the accused persons, who belong to Thevar and Nadar Communities, probably because he is son of the ‘Oor Nattamai’. Only due to this, P.W.11 thought it fit to come to the house of P.W.1 and take him along with them to conduct prohibition raid at Karaiyiruppu Area. When these things came to be known by the accused persons, the accused persons had planned to finish P.W.1 once for all. Pursuant to the said design, they came to the spot and when they were not able to attack P.W.1, they attacked the deceased.
12. A reading of the evidence of P.W.1 as a whole would show that it appears to have a ring of truth throughout. There is no necessity for P.W.1 to implicate all the accused. It may be true that there is variation with reference to the part played by A5 between Ex.P1 complaint and the evidence of P.W.1 and that was the reason given by the trial Court for acquitting A5. But that reason would not help the other accused, especially when P.W.1 would state the part played by the accused A1 to A4 cogently and consistently.
13. It is contended that the Medical evidence does not corroborate the evidence of P.W.1. It may not be correct for the reason that cut injuries were found on the chest, neck, left shoulder, back of the head and other parts of the deceased. P.W.7 Doctor would also state that these injuries would have been caused by using the sharp edged weapons, namely, Aruvals. Even in chief examination, he would state that the death would have taken place at the time and in the manner as alleged by the prosecution.
14. Therefore, we have no hesitation to hold that the evidence of P.W.1 is reliable and the same can be acted upon. Hence, the conviction and sentence imposed upon the appellant(A4) as well as the other accused (A1 to A3) are perfectly justified and the same are confirmed. Consequently, the appeal is liable to be dismissed and accordingly, the same is dismissed.