JUDGMENT
1. The appellants are A2 Sekar and A3 Jagadeesan. Along with the appellants, four accused were tried for the offences under Sections 148, 341, 302 read with 34, 324 and 506 Part II I.P.C.
2. During the course of trial, A1 died. The Trial Court, ultimately, convicted A2 for the offences under Sections 341, 302 read with 34 and 324 I.P.C. and A3 for the offences under Sections 341 and 302 read with 34 I.P.C., and acquitted the other accused. Challenging the same, A2 and A3 have filed this appeal.
3. The facts leading to conviction, in brief are as follows:
(a) The deceased Devadas is the cousin of P.W.6 Gunasekaran. There was a quarrel between A1 to A6 and P.W.6 Gunasekaran over the dispute in regard to the temple function. Ultimately, the accused family vacated their house from Rameswaram and settled at some other place. There were cases pending between them in the criminal court.
(b) The marriage of Gunasekaran’s daughter was arranged to be held on 15.9.96. To attend the marriage, P.W.1 Asingam @ Baluchamy, the brother in law of P.W.6 Gnanasekaran and P.W.2, the friend of P.W.6 came to Rameswaram at about 11.45 p.m. on 14.9.96. P.W.1 Asingam @ Baluchamy and the deceased Devadas were proceeding to an hotel near Gandhi statue to take dinner. When they were about to turn to the market street, the accused persons hiding themselves in a nearby place, suddenly appeared and began to attack the deceased with aruval indiscriminately on various parts of the body. When P.W.1 Asingam @ Baluchamy cried aloud, A2-Sekar with an aruval gave a cut on P.W.1’s forehead.
(c) When crowd gathered there, all the accused ran away from the scene of occurrence. Then, P.W.1 along with others took the victim- the deceased Devadas to the Government Hospital, Rameswaram. P.W.12 Doctor admitted the deceased Devadas at about 12.15 mid-night. He issued Ex.P.10, Accident Register. He also sent Ex.P.12, intimation to the Police. P.W.1 was also treated by the same Doctor. Ex.P.11 is the Accident Register and Ex.P.13 is the intimation.
(d) P.W.10, Sub-Inspector of Police, on receipt of the intimation, went to the hospital. In the meantime, the injured deceased was referred to the Ramanathapuram General Hospital, since his condition was serious. P.W.10, in the meantime, obtained a complaint from P.W.1. P.W.1 was admitted in the Rameswaram Government Hospital. The case was registered for the offences under Sections 147, 148, 341, 324 and 307 I.P.C. Ex.P.1 is the complaint. Ex.P.9 is the first information report.
(e) On receipt of the message, P.W.13, Inspector of Police, took up investigation. In the meantime, P.W.13 received an intimation from the Government Hospital, Ramanathapuram that the deceased died at 2.00 a.m. on 15.9.96. Thereafter, the case was altered into one under Section 302 I.P.C. Ex.P.14 is the Express Report.
(f) On 15.9.96, P.W.13 went to the scene of occurrence and prepared Ex.P.3, Observation Mahazar and drew Ex.P.15, Rough Sketch. He recovered blood stained earth. He went to the hospital and conducted inquest between 10.00 a.m. and 1.00 p.m. Ex.P.16 is the inquest report. Then, the body was for sent post-mortem.
(g) P.W.7, Doctor conducted postmortem and found 18 injuries all over the body of the deceased. He gave opinion in the post-mortem certificate that the deceased would appear to have died of multiple injuries.
(h) P.W.13 continued investigation and took efforts to arrest the accused. On 30.10.96, P.W.13 arrested A3 and on his confession, M.O.3 aruval was recovered. Then, on 28.2.97, P.W.13 arrested A1 and on his confession, M.O.4 series, three aruvals were recovered. In the meantime, he came to know that the other accused surrendered before the Court.
(i) After his transfer, the case was taken up by his successor, Sundaresan, Inspector of Police. The said Inspector of Police, after completion of the investigation, filed charge sheet against the accused for the offences referred to above.
(j) During the course of trial, the prosecution examined P.Ws.1 to 13, filed Exs.P.1 to P.16 and marked M.Os.1 to 6.
(k) when the accused were questioned under Section 313 Cr.P.C., they simply denied their complicity in the crime. A 3 stated that on the date of occurrence, he had not stayed at Rameswaram and he had gone to Ramanathapuram and since his brother was said to have been involved in the murder case, he was also falsely taken to the police station three days later.
(l)The Trial Court on appraisal of the evidence available on record, convicted A2 for the offences under Sections 341, 302 read with 34 and 324 I.P.C and A3 for the offences under Sections 341 and 302 read with 34 I.P.C.
3. The above judgment of conviction and sentence is challenged in this appeal.
4. Mr. K. Kumar representing Mr. T. Muruganantham, learned counsel for the appellants would submit the following:
“(i) The evidence of P.W.1 is not reliable as there was no necessity for both P.W.1 and the deceased to go to the hotel, particularly in the night, when the food was available in the marriage house.
(ii) P.W.1 in Ex.P.1 complaint mentioned only the names of A 1 and A 2 and not others. Admittedly, he was not examined during the course of inquest. He never gave the name of A 3 during the course of investigation. Therefore, the evidence of P.W.1, identifying A3 in the Court as one of the culprits, cannot be acted upon.
(iii) The motive in this case has not been clearly established.
(iv) Though the occurrence took place on 14.9.96 at 11.45 p.m., the complaint was recorded by P.W.10, Sub-Inspector of Police at 1.00 a.m. The said complaint had been received by the Magistrate only at 10.15 a.m. and as such, there is a delay.
(v) P.W.2 did not identify the accused correctly in the Court. Furthermore, there was no identification parade. Therefore, both A2 and A3 are entitled to be acquitted.
6. On these aspects, we have heard the learned Additional Public Prosecutor.
7. On going through the entire records, we are of the view that the evidence of P.W.1 cannot be said to be unreliable. As a matter of fact, P.W.1 is an injured eye witness. According to P.W.1, he used to stay in the house of P.W.6 Gunasekaran, even though he belonged to the other village, i.e., Akkiramasi, since he is the brother-in-law of P.W.6. The deceased Devadas is the cousin of P.W.6. According to P.W.6, there was a dispute between the family of P.W.6 and the accused family for conducting the temple festival.
8. On the date of occurrence, P.W.1 accompanied the deceased to go to a hotel to take dinner. It is contended by the learned counsel for the appellants that there was no necessity for these people to go to hotel for taking dinner, especially when they came to Rameswaram, for attending the marriage function.
9. This contention, in our view, can not be accepted, as we are of the opinion that P.W.1 and the deceased would have gone to the particular hotel to take Dinner, probably because, they had liked that food in that hotel. Admittedly, there is no enmity between P.W.1 and the accused. The conduct of P.W.1 is so natural. Immediately after the occurrence, he intimated to others and made arrangements for taking the victim viz., the deceased to the hospital without any delay.
10. P.W.12, Doctor admitted both of them in the hospital and issued Exs.P.10 and P.11 Accident Registers and sent Exs. P.12 and P 13 intimation to the police. As per the Accident Registers, both the deceased and P.W.1 were conscious.
11. After receipt of the intimation, P.W.10, Sub-Inspector of Police went to the hospital, Rameswaram, and obtained Ex.P.1 complaint from P.W.1. The details given in Ex.P.1 by P.W.1 would clearly indicate that A1 and A2 along with others came and attacked the deceased and when P.W.1 shouted at them, P.W.1 was also attacked by A 2.
12. During the course of investigation, A 1 was arrested and from him M.O.4 series, three aruvals were recovered. However, no steps were made by the Investigation Officer to conduct identification parade with regard to the persons who surrendered before the Court.
13. On a reading of the evidence of P.W.1 as a whole, the participation of A 1 and A 2 in the crime is so clear and is in consonance with Ex.P.1 the complainant, P.W.1 in his deposition would give complete details about the occurrence. Therefore, the complicity of A 1 and A 2 in the crime in question cannot be doubted in view of Ex.P.1 and the evidence of P.W.1.
14. As correctly pointed out by the learned counsel for the appellants, the evidence of P.W.2 implicating A 1 and A 2 is not reliable as he had not identified the accused even in the Court, especially, when there was no identification parade. On the basis of the evidence of P.W.1, there is no difficulty in holding that the acts committed by A 1 and A 2 in causing injuries on the deceased as well as on P.W.1 have been clearly established.
15. However, it is noticed that there is a doubt in regard to the part played by A3 Jagadeesan in the occurrence. There is no dispute in the fact that A3’s name has not been mentioned in Ex.P.1 given by P.W.1. Though P.W.1 mentioned the name of Jagadeesan in his deposition, there is no reason given by P.W.1 as to why Jagadeesan’s name has not been mentioned in Ex.P.1, even though he stated that he knew Jagadeesan earlier.
16. It is the case of the prosecution that A 3 Jagadeesan is the younger brother of A 1. As per the statement given by A 3 under Section 313 Cr.P.C. questioning, the police came to his house and arrested him three days later, since his brother A 1 has involved in this case.
17. We cannot brush aside this statement, in view of the fact that A 1 was arrested only on 28.2.97 as he was absconding all along. P.W.1 would state in his cross examination that he mentioned the name of A3 in Ex. P.1. This is factually incorrect.
18. Under these circumstances, it is not known as to how A 3 was traced out by the police. Admittedly, P.Ws.1 and 2 had not mentioned the name of A 3 during the course of investigation. It has not been explained by P.W.13 on what basis P.Ws.1 and 2 were able to identify A 3 who was arrested by him. In the light of the above facts and circumstances of the case, we are not able to conclude that A 3 also was there at the spot and participated in the attack made on the deceased. Therefore, though the prosecution has established its case against A 2 (the first appellant), the materials available on record would not be sufficient to find A 3 guilty.
19. In fine, the appeal in respect of the second appellant (A3) is allowed and he is acquitted of the charges. A3 is therefore directed to be set at liberty forthwith, unless he is required in connection with any other case.
As regards the first appellant (A2), the appeal is dismissed confirming the conviction and sentence for the offences under Section 302 read with 34, 324 and 341 I.P.C. imposed upon him by the trial Court.