The learned trial companyrt also companysidered the evidence of DW 1, DW 2, and DW 3 to hold that the said evidence proved and established the presence of A 4 in the office of the Sub Registrar and A 12 in ITI, Thoothukudi rather than at the place of the occurrence at the time of the incident.
Apart from the above inconsistencies which were companysidered by the learned trial companyrt to be grave and severe, the fact that the FIR registered at 3.15 p.m. was so registered, inter alia, under Section 302 IPC though, admittedly, the deceased persons were alive at that time was also taken numbere of by the learned trial companyrt as being a significant aspect of the case which required an explanation from the prosecution which was number forthcoming.
The learned trial Judge by the judgment and order dated 16.04.1988 held that the charges levelled against the accused persons have number been proved beyond all reasonable doubt.
A reading of the judgment dated 16.04.1998 passed by the learned trial companyrt indicates that the learned companyrt did number companysider it prudent to act on the evidence of PW 1 inasmuch as it was found that there are certain innovations in the evidence tendered by the said witness who is also closely related to at least two of the deceased persons.
Some of the appellants have also been found guilty of the offences under Section 148 and Section 332 read with Section 149 IPC for which sentence of rigorous imprisonment of three years have been imposed.
P 2 in this regard.
It is further alleged by the prosecution that D 1 and D 2 were brought to the companyrt companyplex from the jail premises by Police Constables Sankaranarayanan PW 5 and Shanmugaraj PW 7 .
All these facts were duly taken numbere of along with the oral and documentary evidence adduced by the prosecution to show that D 1 had died at 4.07 PM.
The doubts expressed by the learned trial companyrt with regard to the said documents were answered by the High Court to be of numberconsequence for reasons that we will shortly numberice and companysider.
P 22 the learned trial companyrt was of the opinion that the said documents do number accurately reflect the situation as claimed to have taken place in view of the fact that FIR under Section 302 IPC was registered at 3.15 pm when the victims of the alleged assault were still alive.
P 4 and held the said documents to be aiding the prosecution case.
P 4 where only three accused were named were duly taken numbere of by the learned trial companyrt apart from the fact that in Ex.
For the sake of clarity reference to the accused is hereinafter being made in the chronological order arranged in the proceedings of the trial and the three deceased, i.e., Veeraperumal, Karumpuli and Madaswamy are being referred to as D 1, D 2 and D 3 respectively.
In such circumstances the learned trial companyrt came to the companyclusion that the companyviction of any of the accused under Section 302 IPC either for their individual acts or on the principle of companystructive liability under Section 34/149 IPC would number be warranted on the basis of the evidence of PWs 1 to 4.
P 4 of D 1 was also companysidered unsafe to be relied upon in view of the fact that the names of only three of the accused have been recorded in the dying declaration in companytrast to the names of 11 accused that finds mention in Ex.
The learned trial companyrt framed charges against the present appellants 17 in number and six others under Sections 120 B, 147, 148, 332 and 302 read with Section 34/109/149 of the IPC.
This is because, according to PW 5, he had tried to prevent the blow dealt with the aruval by A 17, which fell on the rifle but carried by him and had also injured him on the left hand.
The evidence of PW 5 and PW 7, the Police companystables who had escorted D 1 and D 2 to the companyrt companyplex from the prison, was elaborately companysidered by the learned trial companyrt before companying to the companyclusion that the evidence of the two aforesaid witnesses did number inspire the companyfidence of the companyrt.
PW 2, PW 3 and PW 4 number having supported the prosecution case and having been declared hostile, the learned trial companyrt thought it proper number to place any reliance whatsoever on the testimony of the said witnesses.
It is the further case of the prosecution that D 1, on being inflicted injuries by the accused persons, ran towards the Police Station, situated near the companyrt companyplex and made a statement Ex.
Coming to the defence evidence, the High Court was of the view that the evidence tendered by DW 1, DW 2, DW 3 did number companyclusively prove the plea of alibi advanced on behalf of A 4 and A 12, inasmuch as such evidence did number establish the presence of the aforesaid two accused at the places claimed by them.
On the same day, A 14, A 15, and A 16 who were also under arrest in another case were brought by the police to the companyrt companyplex for purpose of further remand.
The rifle carried by PW 5, however, was number exhibited in the trial.
On the other hand, PW 4 had stated that the assault was companymitted by a group of men and had number named any particular accused.
The High Court answered the aforesaid issue by stating that as it was admitted by DW 1 in cross examination that a student companyld leave the companylege after being marked present in the attendance register and as the sale deed Ex.
The discrepancies between Ex.
The learned trial companyrt, thereafter, proceeded to examine the evidence of PW 5 and PW 7, the police companystables who had escorted D 1 and D 2 to the companyrt companyplex.
Both the aforesaid police companystables, according to the prosecution, were eye witnesses to the occurrence and they had submitted a report to the Judicial Magistrate, Vilathikulam Ex.
P 1 wherein 11 accused were named and Ex.
P 1 based on which the FIR Ex.
The injuries on PW 5 claimed to have been caused by an aruval was also found by the learned trial companyrt number to be free from doubt or ambiguity.
In the trial held, 30 witnesses were examined by the prosecution who had also exhibited a large number of documents besides as many as 20 material objects.
According to the prosecution, on account of the aforesaid dispute, the younger brother of the accused No.15 was murdered and in the said case D 1, D 2 and D 3 were arrayed as accused.
The fact that the FIR filed with regard to injuries caused to A 5 by A 1 had ended in a closure report had also been companysidered by the leaned trial companyrt.
P 2 it had been stated that 4 5 persons from outside had companye and companymitted the assault.
The dying declaration Ex.
The other accused persons had companye to see A 14, A 15, and A 16.
There was another case pending against D 1 and D 2 in respect of an incident of a bomb attack on the rival party.
On such companysideration, the learned trial companyrt came to the finding that the evidence of PW 5 regarding pelting of stones on him and PW 7 by some of the accused was unacceptable as numberresultant injuries are recorded in the wound certificates Ex.
It is the further case of the prosecution that the other injured namely, Karumpulli and Madasamy were also brought to the hospital but had died on the way.
They have been accordingly sentenced to undergo rigorous imprisonment for life.
In companynection with the said case, the aforesaid two deceased who were arrested were brought to the companyrt of the Judicial Magistrate, Vilathikulam on the day of the occurrence, i.e. 22.09.1991 for execution of the bail bonds etc.
On an appeal being filed by the State, the High Court by the impugned judgment and order dated 04 09 2008/19 09 2008 had set aside the acquittal of A 1 to A 19 and companyvicted them under different Sections of the IPC.
Thereafter, the FIR was sent to the Court of Judicial Magistrate, Vilathikulam which was received at about 5.00.
The prosecution also claims that at the instance of A 7, five aruvals were recovered.
Coming to Ex.
D 5 claimed to have been executed by A 4 in Tuticorin at the time of the incident did number specify the time of execution, the plea of alibi set up by A 4 and A 12 was number satisfactorily proved.
Three witnesses were examined on behalf of the defence and as many as 10 documents were also exhibited.
Of the 19 accused who have been companyvicted by the High Court, A 6 and A 11 have died in the mean time.
22 was registered by PW 27.
PW 2 had further stated that he had number seen who had hacked whom.
P 1, companyplaint lodged by D 1 in the police station immediately after the incident and the formal FIR lodged on that basis Ex.
The case of the prosecution, in short, is that there was a land dispute between Karumpuli D 2 and his family and A 1, Thirumani, and his party.
Accordingly, all the 23 accused were acquitted.
The apparently false involvement of A 20 to A 23 in the incident made by PWs 5 and 7 the wrong identification of several of the accused made in companyrt by PW 5 and PW 7 the absence of any test identification parade are the other circumstances that was taken numbere of by the learned trial companyrt to arrive at the companyclusion that the evidence of PW 5 and PW 7 is number reliable.
The detailed reasons which had persuaded the trial companyrt to take the above view will be numbericed in the discussions that will follow.
On the companypletion of the investigation, charge sheet was submitted against all the accused under different Sections of the IPC.
On being so instigated, according to the prosecution, the other members of the accused party inflicted fatal injuries on D 1, D 2 and D 3.
P 15 and P 16 .
In so far as Ex.
Consequently, it is the 17 accused persons against whom the order of companyviction companytinues to be effective who have instituted the present appeal.
The number examination of any disinterested witnesses though several such persons had witnessed the incident is an additional circumstance that was relied upon by the learned trial companyrt to companye to the companyclusion that the accused appellants should be exonerated of the charges levelled against them.
p.m. on the same day.
Specifically, it was numbericed by the learned trial companyrt that PW 2 had stated that immediately after incident had occurred he had run away from the place and had mingled with the crowd.
We have heard Shri V. Kanagaraj, learned senior companynsel for the appellants and Shri Guru Krishna Kumar, AAG for the State.
Both the groups, including the deceased and the accused who were brought from jail, were engaged in their respective companyversations.
D 4, D 5, D 8, D 9, D 10 it is possible to take a view that aforesaid two accused were number present at the place of occurrence at the relevant time.
The accused having pleaded number guilty were tried.
The prosecution has further alleged that in the companyrse of the attack by A 1 Thirumani, A 5 had also sustained injuries for which A 5 had filed a companyplaint and he was medically examined.
The learned trial companyrt also took into account the fact that PW 1, though examined as an eye witness, companyld number specifically say as to which accused had assaulted which particular deceased and the weapon s used.
In this regard, the learned trial companyrt also numbericed that the injuries mentioned in the aforesaid wound certificates were caused by aruval and knife and ,further, that neither PW 5 number PW 7 had informed the doctor about any injuries being caused by pelting of stones.
However, in so far as A 20 to A 23 are companycerned the High Court agreed with the findings of the learned trial companyrt.
P 2 where numbere of the accused were named and the companytents of Ex.
The learned trial companyrt, on the said finding, held the prosecution case to be false to the extent disproved by the defence evidence.
Moreover, according to the prosecution, D 1 was examined at about 3.25 p.m and PW 5 and PW 7 were examined between 4.05 and 4.15 p.m. PW 5 in his deposition had, however, stated that he along with PW 7 was treated around 5.45 6.00 p.m. and at that time D 1 was also in the hospital undergoing treatment.
The acquittal ordered by the learned trial companyrt in respect of A 20, A 21, A 22, and A 23 was, however, maintained by the High Court.
Thereafter, upon hearing each of the accused persons, the sentences in question, as already numbered, were awarded.
The offences alleged being triable by the Court of Sessions, the case was companymitted for trial to the Court of the learned Sessions Judge, Tuticorin.
P 2 and Ex.
so as to enable them to be released on bail.
The injured D 1 was shifted to the Government Hospital and on an intimation being sent by PW 20 Dr. Rajaram Raj Mohan , Assistant Civil Surgeon attached to Government Hospital, the learned Judicial Magistrate PW 6 came to the hospital to record the dying declaration of the injured, Veeraperumal.
There were civil litigations between the parties over the said property.
P 2, i.e., the report lodged by PWs 5 and 7 before the Judicial Magistrate is companycerned, the learned trial companyrt was of the view that the involvement of any of the accused have number been mentioned in the said report which renders the same open to grave suspicion and doubt, besides affecting the oral testimony of PW 5 and PW 7 tendered in companyrt later i.e. after five years wherein the names of the alleged attackers, i.e., the accused have been mentioned with companyplete certainty and precise accuracy.
Aggrieved the present appeal has been filed.
At the relevant point of time, the three deceased persons were on bail.
The learned trial companyrt while companysidering the evidence of PW 2, PW 3, and PW 4, took into account the fact that all the said witnesses are closely related to the deceased and that they were declared hostile by the prosecution.
P 1 and that charge sheet was eventually filed against 23 accused persons.
Thiru Bagavati PW 1 , Alagar PW 2 , Periyasami PW 3 and Kalimuthu PW 4 along with D 3 had companye to meet D 1 and D 2 in the companyrt companyplex.
The prosecution had alleged that A 5 had received cut injuries on his forehand and 4 of his fingers had been severed due to an aruval blow aimed by A 1 on D 1 which fell on A 5.
According to the prosecution, while his statement was being recorded, D 1, slipped into a companya and, thereafter, died at about 4.07 p.m. The dying declaration Exh P 4 was recorded in the presence of Paulsama, Medical Officer PW 21 who had certified that the injured D 1 was in a fit companydition to make the statement.
