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CASE NO.: Appeal (crl.)  1061 of 2007

PETITIONER: Kittusamy

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 13/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 2050 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of the  Division Bench of the Madras High Court dismissing the  appeal filed by the appellant.  The said appeal was filed by the  appellant and two others. The accused-appellants are  Kittusamy, Channappan, and Palanisamy (for the sake of  convenience the accused persons are described as \023A1, A2 and  A3\024). Each of them was convicted for offence punishable under  Section 302 read with Section 34 of the Indian Penal Code,  1860 (in short the \021IPC\022).       3.      The prosecution version in a nutshell is as follows:

       Deceased Ayyasamy is the son-in-law of Kittusamy (Al).  Chinnappan (A2) and Palanisamy (A3) are the sons of Al.

    Deceased Ayyasamy married Valliammal, daughter of Al,  about 15 years back. From the wedlock, two children were  born. After sometime, Chinnakutty, second daughter of Al was  kept as concubine by the deceased. After four months, she left  the house of the deceased and eloped with somebody else.  Four years prior to the date of occurrence, Valliammal,  daughter of Al, unable to bear the torture at the hands of the  deceased, left the house of the deceased and joined her  parents with her children.            On 3.11.1996 at about 10.00 P.M., the deceased  Ayyasamy came to the house of the accused, where the wife of  the deceased along with her children were residing, and asked  his wife to come with him to lead the matrimonial life. She  refused to accompany him. The accused also told the deceased  that they would not allow Valliammal to join him anymore.  Then, the deceased abused the accused in filthy language and  went back to his house.            On 4.11.1996 at about 6.00 A.M., Al to A3 came to the  house of the deceased, where he was residing alone, with  weapons. Al, A2 and A3 were armed with stick, iron rod and  aruval respectively. Noticing all the accused coming with the  weapons, the deceased got afraid and began to run from his

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house towards Northern side. But all the accused chased him  to a considerable distance and ultimately, surrounded and  attacked the deceased with the weapons causing 17 injuries.   Three persons (PWs 1, 2 and 3) witnessed the incident.             Then, P.W.1 went to Avanashipalayam police station and  gave Ex.P1 complaint to Sub Inspector of Police (PW-10). A  case under Section 302 read with Section 34 1PC was  registered against the accused.            Inspector of Police (PW-11), on receipt of the information,  visited the scene of occurrence at about 11.30 A.M. He  prepared Observation Mahazar and rough sketch. He also  conducted inquest and examined the witnesses. He recovered  blood stained earth, sample earth and other things from the  scene of occurrence. He sent Ex.P-9 requisition to the Doctor,  Palladam Government Hospital to conduct autopsy.      Doctor (PW-6) conducted postmortem and issued  Postmortem Certificate (Ex.P-10) giving details of the injuries  found all over the body. He was of the opinion that the  deceased would appear to have died of contusion of brain  matter and shock and haemorrhage due to injury to lungs.            On 5-11-1996, at about 1.00 PM, Inspector of Police (PW- 11) arrested Al to A-3 and obtained their confession  statements and in pursuance of the same, he recovered  weapons M.O.1 (stick), M.0.2 (iron rod) and M.O.3 (aruval).            Inspector of Police (P.W.12), who was the successor to  P.W.11, finished the investigation and filed charge-sheet  against all the accused under Section 302 read with Section   34 IPC.       4.      On completion of investigation, charge sheet was filed. As  the accused persons pleaded innocence, they were put on trial.   examined 12 witnesses.  It was noted by the trial court that  PWs 1, 2 and 3 were eye-witnesses and their version was  sufficient to hold the accused persons guilty.  In appeal, the  conviction and sentence of imprisonment for life and fine  awarded were confirmed. Before the High Court, the primary  stand of the appellant was that the evidence is not credible  and cogent; the evidence of PWs. 1, 2 and 3 is contrary to the  medical evidence on record. The Doctor stated that the  occurrence could have taken place around 4 a.m., whereas the  prosecution stated that the occurrence took place around 6  a.m.  The High Court did not accept the stand as noted above  and confirmed the conviction and sentence.

5.      In support of the appeal learned counsel for the appellant  reiterated the stand taken before the High Court.       6.      Learned counsel for the State on the other hand  supported the judgment.   

7.      It is to be noted that PW 1 was the cousin brother of the  deceased while PWs. 2 and 3 were his parents.  Though efforts  was made to show that PWs 2 and 3 stay at a different place,  as rightly observed by the trial court and the High Court that  really is not relevant and that PWs. 3 and 4 stated as to why  and how they were at the place of occurrence.  PWs. 1 to 3  have given the elaborate details of the weapons held by the  accused and the manner of assault by them. PW 6 the doctor  noted that there were 17 injuries found on the body of the  accused which could be caused by the weapons held by A1 to  A3.  So far as the doctor\022s evidence about the approximate

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time of the death is concerned, it is to be noted that the doctor  had nowhere stated that death took place around mid night.   On the contrary he stated as follows:            \023As I opined that the deceased could die  from 12 to 16 hours, I am saying here that the  deceased could die from 12 to 16 hours.   Depend upon the trigger mart on body, I had  mentioned the time of death.  I stated that  there was digested liquid in his stomach.\024       8.      The recovery of the weapons of assault has also been  established.       9.      The High Court has rightly observed that there is a ring  of truth in the evidence of PWs.  The appellant could not point  out any infirmity, which would warrant interference with the  impugned judgment of the High Court. In view of the above,  the appeal is without merit and is dismissed.