G. VIVEKANANDAN v. SRIRAMULU & ORS.

The Judgement of the Court was delivered by

DR.. ARIJIT PASAYAT, J. D ,,... \,(

1Copy pinpoint1. Challenge in this appeal is to the judgment.of a Divisi.on .bench of the Madras High Court directing acquittal of the accused persons who faced trial for alleged cqmmission of offences punishable under Section 302 read with Section 34 of E the Indian Penal Code, 1860 (in short the 'IPC'). Learned Additional Sessions Judge, Virudhunagar had held the respondent accused persons guilty for causing the death of one _., .., Gurusamy Naicker (hereinafter referred to as the 'deceased') on 25.~.1997 while he was sleeping in front of a shop. · F

2Copy pinpoint2. Prosecution version as unfolded during trial is as follows:

Subbura} (PW1 ), Vivekanandan (PW2) a·re brothers and sons of the deceased. Gopaiakrishnasamy (PW5) is the brother of the deceased. Rajavelusamy (A3) and Vasudevan (A4) are G brothers. There is a Hir)du Primary School in S ..Thiruven- \. katapuram which belonged to the Kammavar community. " Venkatasamy (PW 7) has beeh the administrator of the school for the past twenty years, as the President of the school by name Rangasamy has not been there in the village for several years. H

G. VIVEKANANDAN V. SRIRAMULU & ORS. 353 [DR ARIJIT PASAYAT J.] .. Apart from the Pr~.sident and Administrator, the Committee A consisted of seven members. One of the members by name Thiruppathi passed away. Without the knowledge of the people of th~t villag~d the accused grou~ .showing the 4 h accused as 1

President, 2 accused as Administrator and seven persons including first accused as members registered as the members B of the Association Committee in the office of the District Registrar, Virudhunagar. Jayaveeran (PW15) the District Registrar received the memorandum and bye-laws in this regard and effected registration on 06.05.1997. Coming to know about this, a meeting in the village was convened including P.Ws.7 c and 8. The meeting was held on 15.05.1997 and about 200 persons participated in that meeting. It was resolved in that meeting to elect an able administrator and in that meeting the deceased Gurusamy was selected as the Administrator. In fact _., in the meeting, apart from P.Ws. 3 and 5, the accused also D )' participated. In the said meeting, the accused raised an objection. But however, the same was overruled and it was resolved to register on 27 .05.1997 the name of the deceased Gurusamy Naicker as Administrator and this provoked the accused. On 28.03.1997 at about 11.00 p.m., 1st and 3rd accused E and 7 others attacked PW.13 in the hotel belonging to the deceased. The deceased and one Veerasamy pacified the accused and others. PW 13 lodged a complaint before the Police in that regard. After investigation, Police filed charge sheet against A 1 and others, in which the deceased Guruswamy F Naicker was cited as a witness. Thus, the accused had a grievance against the deceased.

On 23.05.1997 at about 10.00 p.m., all the four accused went to the hotel of the deceased Guruswamy Naicker. But the .. _., deceased was not there. The accused then told PW 1 and PW2 G who were present in the shop to tell the deceased not to take charge in the School administration, and that if he does so, he will not be allowed to live. When the deceased Guruswamy Naicker returned, both P.Ws.1 and 2 informed him about the threat by the accused. The deceased replied to PWs.1 and 2 H

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A by saying that when something good is done to village, there is -i • bound to be some opposition and one should not mind this and pacified his sons viz. PWs.1 and 2. On 24.05, 1997 at about 11 p.m. P Ws.3 and 4 were talking to the deceased about School administration and thereafter the B deceased went to sleep near the well situated South-West of the hotel. Along with the deceased, PWs 3 and 4 also left. As it was late by then, PWs.3 and 4 decided to stay there itself. The deceas~d then went and slept in front of the Shop known as ., Surya Saloon and Nandini Tailors, belonging to his brother PW5, c PVVs. 3 and 4 went to the terrace of the Surya Saloon and slept there. At about 3.45 a.m. on 25.05.1997 PWs.1and 2 for the purpose of opening the hotel, were making preparations by cleaning the hotel. At that time, all the four accused came there and questioned them about the whereabouts of the deceased. >-- . ... A1 was having M0-1 Aruval with him whileA-2 was having MO

2. Seeing this, PWs.I and 2 got scared and told the accused that the deceased was out of station. Then third accused saying that the deceased should be there only and that his story can be finished proceeded towards west and marched ahead to the place towards south to reach the place where the deceased was sleeping. PWs.1 and 2 fearing that the accused would finish off the deceased, followed the accused by shouting. When the '" accused reached the deceased, A-3 caught hold of the legs of the deceased and A-4 uttered the words, "cut and kill him", whereupon A-1 with MO I aruval in his hands cut on the left side of the neck of the deceased. Thereafter, A 2 with M0-2 aruval also cut on the .left side of the neck of the deceased. PVVs.3 and 4 who were sleeping on the terrace of the Surya G Saloon, hearing the noise made by P.Ws. 1 and 2 got up and ~

also witnessed the attack on the deceased. P.Ws. 3 and 4 on seeing the attack on the deceased, shouted, "why are you cutting "'" and killing him". The accused then threatened PWs. 3 and 4 not to come near and in view of that PWs 3 and 4 did not proceed further. Thereafter accused left with weapons. At the time of

G. VIVEKANANDAN V. SRIRAMULU & ORS. 355 [DR. ARIJIT PASAYAT J.]

.... occurrence, electric mercury lights were burning both on the west and south of the Alagarraja Textile Mill. There was also a light burning in the pial where the deceased was sleeping. After the accused left, PWs. 1 to 4 went near the deceased and they saw the deceased had no life, Thereafter, PW1 went to the village and informed him that PW 5 and both of them went back to the scene of occurrence. PWs.1 and 5 saw the deceased lying dead with injuries on his beck. Thereafter, PWs. 1 and 5 proceeded in a two wheeler to Keelarajakulareman Police Station and reached there at 4.45 pm and gave complaint to Sub Inspector of Police (P.W16). The complaint was reduced c to writing by the Head Constable and the same was read over to PW1 and after ascertaining the correctness, his signature was obtained. In the said complaint Ex.P-1, PW5 also signed. Sub Inspector of Police (PW 16), on the basis of the said _..._ complaint registered a case in Crime No.169 of 1997 and o· ).' prepared printed Fl.R. Ex.P19. PW.16 thereafter telephonically informed the Inspector of Police P.W.17 about the incident. The printed FIR along with the complaint was sent to the Court of Judicial Magistrate and copies thereof were sent to his superiors. Inspector of Police (PW 17) proceeded to the scene of occurrence and reached there at 6.00 a.m in the morning. Copy of the FIR, was received by him at the scene of occurrence, .. Ex.P.6 is the observation mahazar prepared by him and the same was attested by Village Administrative Officer (PW6) and Thalayari Guncisekaran. A sketch Ex.P.20 was also prepared by the Inspector of Police. Inquest over the body of the deceased was held between 6.00 a.m. and 10.00 a.m. And Ex.P-21 is the inquest report. During inquest, Inspector of Police examined PWs. 1 to 3 and Rajammal and others. After inquest, MOs. 3, 4, 8, 9, 10 and 11 were seized under mahazar Ex. P7. The body of G "" -<I the deceased was then sent to the Government Hospital with a requisition to conduct post mortem.

Dr. Bharathilakslmi (P.W.11) at Goverment Hospital, Rajapalayam, on receipt of requisition Ex.P-13 commenced H

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A autopsy on the body of the deceased at about 3.00 PM in the .. ~ afternoon. Ex.P-14 is the post mortem certificate issued by the Doctor. In the said certificate, the Doctor had noted the following: "Injuries : 1. Cu~ injury of about 9 ems extend from 2 cm away from the angle of the mouth (left) to 3 cm below the ear B lobule (left) horizontally placed, depth 1 cm margins regular and tapering with fracture of the angle of the mandible ..·

2. Cut injuN of about 20 ems extend from middle of the neck back side (left) to the middle of the chin and first injury c merging with this wound margin regular and tapering depth upto vartebral bone, wound horizontally placed - skin, muscles and vessels hence all are cut with fracture of the C.2 vertebrae body. No blood cloths seen. There was no fracture in skull. There was no injury in the Brain and its colour was pale. D There was fracture of C-2 Vertebrae in Spinal Column. ~

Hyoid: " Intact. Lung : PaLE NO RIB FRACTURE, Heard: E Pale, Chambers empty, Liver, Spleen: Pale. Stomach: Pales Bladder: 100 ml. of urine". The Doctor had opined that the deceased would appear Jt "'-· to have died of shock and haemorrhage and death would have occurred 10 to 18 hours prior·to post mortem. On information, the Inspector of Police arrested all the four accused on 26.05.1997 at about 2.00 p.m., at the place called Sevelmedu Otrangadu in the presence of PW9 and PW 12. On arrest, accused 1 and 2 independently gave confessional statements. Ex.P22 is the admissible portion of the confession statement given by A1 while Ex.P.23 is the admissible portion ,... .. of the c.onfession statement , given by A2 Pursuant to the ,

confession statement, A2 took the police party and the witnesses and produced MO 2 aruval from a thorny bush at a place called H

- G. V!VEKANANDAN V. SRIRAMULU & ORS. 357 [DR. ARIJIT PASAYAT J.]

Otrangadu and the same was recovered under mahazar Ex.P A

24. On the same day, at about 6.15 p.m., A-1 produced M0-1 aruval and the same was recovered. Both the mahazars were attested by Village Administrative Officer (PW 9) and Thalayari. The Inspector of Police proceeded with the investigation and examined the witnesses on various dates. The statements of B PWs. 1 to 4 were recorded by P.W.10 Judicial· Magistrate, Srivivilliputhur and the same are marked as Exs to P2 to P5. The material objects were then sent for chemical analysis. Exs.P.28 and P29 are the chemical analyst's report while Ex.P 30 is the Serologist's report. The Inspector of Police after c completing investigation, filed his report on 7. 7 .1997 under Section 302 read with Section 34 and 109 IPC. As the accused persons pleaded innocence, trial was held, where the accused persons were held guilty. Questioning ~ the conviction an appeal was filed by the respondents which as D Ill; )' noted above directed acquittal.

4Copy pinpoint4. In support of the appeal, learned counsel forthe appellant- informant submitted that the High Court was not justified in directing acquittal. The evidence of PWs.1 & 2 has been discarded without indicating any reason. It was also pointed out that there is no delay in dispatching to Magistrate (Ex.19). ..,... . 5. Learned counsel for the respondent on the other hand supported the judgment.

6Copy pinpoint6. It is seen that the High Court has not discussed the evidence. No reason has been indicated as to why the detailed analysis done by the Trial Court deserved to be up set. The conclusions are factually incorrect. So far as the date on which the special report reached the Magistrate is concerned it is to be noted that the Judicial Magistrate has put his signature to G ·1 'I have received the document at about 7.45 a.m. on 25.5.1997. But in the seal of the Court the date is differently shown. Nevertheless date is recorded by the Magistrate to be 25.5.1997. The High Court also doubted the lodging of the FIR at the time of the claim. H

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7Copy pinpoint7. Opposing the appeal, learned counsel for the accused .. #"- I submitted that since there was unexplained factor of delay, the ~~ High Court was justified in directing acquittal. It is· stated that the evidence of PWs. 1 & 2 do not inspire confidence and, t= therefore, the High Court has rightly discarded the evidence [ B brought on record. ·~ ~

8Copy pinpoint8. We do not think it is necessary to analyse the various aspects involved in detail. It is seen that the High Court has .,._ ~- '

practically disposed of the criminal appeal without analyzing the ,..__ evidence and without indicating any basis as to why the view C expressed by the trial court cannot be maintained. In the r aforesaid circumstances we remit the matter to the High Court for fresh disposal in accordance with law. We request the High Court to dispose of the appeal as early as practicable.

9Copy pinpoint9. The appeal is disposed of accordingly. D ,.. ?-- \ ~· • ,• l·K.K.T Appeal disposed of. ;... ,.._