JUDGEMENT
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(1.)The appellants who were ranked as A-1 and A-2, along with two others as A-3 and A-4 stood charged under Sec.302 read with 34 of I.P.C., and A-1 and A-2 who were found guilty under Sec.304 (ii) read with 34 of I.P.C. and sentenced to undergo 5 years R.I. have brought forth this appeal.
(2.)The short facts necessary for the disposal of this appeal are thus:
(a) P.W.1 Pavayee and P.W.2 Thammampattiyan @ Periasamy are wife and husband living at Anaipalayam Colony, Rasipuram Taluk, Salem District. The deceased Subramani was the second son of the said witnesses. The accused 1 to 4 were close relatives to each other and the family of the deceased also. One year prior to the occurrence, the first son of P.Ws.1 and 2 namely Rajendran fell in love with A-3, who was also staying in the same School where A-3 is studying. The parents of A-3 were aggrieved over the same. There was a clash between both the families, which resulted in registration of a criminal case and the same was pending. On 18.7.1994 at about 8.15 A.M., while the deceased was riding a cycle A-2 voluntarily dashed against him and indulged in a quarrel. On the same day at about 8.30 a.M., A-1 to A-4 in furtherance of their common intention armed with deadly weapon came near the water pipe line, which is situated near the house of the deceased. A-2 armed with M.O.1 kuthukkol stabbed on the stomach of the deceased, while A-1 attacked the deceased with M.O.2 aruval manai on the left hand. A-3 and A-4 attacked the deceased and P.Ws.1 and 2 with sticks. On seeing the crowd that gathered, A-1 to A-4 fled away from the site of occurrence. The deceased due to the injuries caused to him died instantaneously on the spot.
(b) P.W.1 rushed to Rasipuram Police Station and gave a complaint under Ex.P16. P.W.10 Ponnusamy, Sub Inspector of Police on the strength of Ex.P16 complaint registered a case in Crime No.736/94 under Ss 302, 323 and 324 of I.P.C. against all the four accused. Ex.P17 printed F.I.R. was despatched to the Judicial Magistrate No.I, Namakkal, while the copies were sent to the higher officials. P.W.2 was taken to the Government Hospital, Rasipuram, where P.W.7 Dr.Dhanasekaran admitted him and gave treatment to him. Ex.P6 is the copy of the accident register in that regard. P.W.10 sent P.W.1 with a medical memo to the Government Hospital for treatment, where P.W.7 Doctor gave treatment to her and issued a copy of the accident register marked as Ex.P7. A-1 to A-4 who sustained injuries at the time of the said incident, proceeded to the Hospital on the same day, where P.W.7 Doctor treated all of them, and the copies of the accident register in that regard are marked as Exs.P8 to P11 respectively. On receipt of the copy of the F.I.R., P.W.11 Nedunchezhian, Inspector of Police took up the investigation, proceeded to the site of occurrence, made an inspection and prepared Ex.P1 observation mahazar in front of P.W.6 Kailasam and one Periasamy and also Ex.P21 rough sketch. He conducted the inquest on the dead body of Subramani in front of panchayatars and witnesses and prepared Ex.P20 inquest report. He examined P.Ws.1 to 6 and recorded their statements. He issued a requisition for autopsy to P.W.7 under Ex.P4 through P.W.8 Rajan, Head Constable. On receipt of the same P.W.7 Doctor conducted the autopsy on the dead body of Subramani and found the following injuries:
External Injuries:
1) An elliptical stab injury on the epigastrium 3 cm x 2 cm.
2) A lacerated injury 5 x 1 cm skin deep placed on the inner side of the left hand.
3) An abrasion 2 x cm just below left knee.
4) An abrasion 1 x 1 cm over the right shoulder.
Internal Examination: On probing the injury
1) The probe entered abdominal cavity about 10 cm and was blood stained.
Heart Chambers empty c/s pale.
2) Lungs: c/s pale
3) Hyoid bone: Intact.
4) Liver: An incised wound 3 x 2 x complete size of lower border, on left lobe of the liver with profuse blood clot. Peritoneal cavity present with about one litre of dark coloured blood.
5) Stomach: An elliptical shaped piercing injury on the anterior wall of the stomach. Posterior wall spared. Stomach contains about 200 ml of partially digested food.
6) Spleen: C/s pale.
7) Kidney: C/s pale.
8) Bladder: Empty.
9) Brain: Membranes intact, c/s pale.
P.W.7 Doctor has issued Ex.P5 postmortem certificate and has opined that the deceased would appear to have died 8-10 hours prior to autopsy due to injury to vital organs and shock and haemorrhage.
(c) P.W.11 Investigating Officer seized M.O.8 a pair of cheppals, M.O.9 bloodstained earth, and M.O.10 sample earth under Ex.P2 mahazar in front of the witnesses. He recovered M.O.1 kuthukkol and M.O.2 aruval manai under Ex.P3 mahazar in front of the witnesses from the place of occurrence. On 19.7.1994, the Investigating Officer arrested A-1 and A-2 at the Government Hospital, Salem and A-3 and A-4 at the Government Hospital, Rasipuram and remanded them to judicial custody. He examined the witnesses and recorded their statements. He also received M.Os.3 to 7 dresses worn by the deceased through P.W.8 Head Constable. All the material objects were sent to the Judicial Magistrate No.I, Namakkal. P.W.11 made a request to the concerned Court to send all the material objects for chemical analysis. A request was made to the concerned Judicial Magistrate for recording the statement of P.Ws.1 to 3 under Sec.164 of Cr.P.C. P.W.11 conducted the investigation in Crime No.737/94 which was registered on the strength of the complaint lodged by A-3, and on investigation he referred the same as mistake of fact, and the referred charge sheet notice under Ex.P23 was served on A-3 and filed a final report under Ex.P22 before the Judicial Magistrate No.I, Namakkal. On completion of the evidence, a charge sheet was laid against A-1 to A-4 under Ss 302, 323, 302 read with 34 and 302 read with 114 of I.P.C.
(3.)In order to prove the charges levelled against the appellants and other two accused, the prosecution examined 11 witnesses and marked 23 exhibits and 10 material objects. On completion of the evidence of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence, D.W.1 was examined, and neither any exhibit nor any material object was marked. On consideration of the rival submissions and scrutiny of the materials available, the trial Court found A-1 and A-2 guilty under Sec.304 (Part II) read with 34 of I.P.C. and sentenced to undergo the imprisonment, as stated supra. Hence, this appeal.
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