CRL A/1189/2000 of Vs on 27 December 2002

1. Aalagupandi. .... Appellant in C.A.No.1189 of 2000

2. Sangaiah. .... First appellant in C.A.No.173 of 2001

3. Chellapandi. .... Second appellant in C.A.No. 173 of 2001

-Vs-

StateBy Inspector of PoliceKayatharu Police StationThoothukudi District. ..... Respondents inboth the C.As.

Criminal Appeals preferred under Sections 374 (2) and 374against the judgment dated 19/10/2000 made in S.C.No. 101/1997 by the Courtof Principal Sessions Judge, Tuticorin.

!For appellants ... Mr.Sellathuraiin C.A.No. 1189 of 2000

Mr.M.S.Velusamyin C.A.No. 173 of 2001

^For respondent ... Mr.A.N. Thambidurai.

:C O M M O N J U D G M E N T

Both the above Criminal Appeals have arisen from out of one and thesame judgment of the Court of Principal Sessions Judge,Tuticorin, dated19/10/2000 rendered in S.C.No. 101 of 1997, thereby convicting the Appellantsherein, who were respectively Accused Nos. 3, 1 and 2 before the Trial Courtand sentencing them each to undergo Rigorous Imprisonment for 10 years and topay a fine of Rs.5,000/-, in default to undergo Rigorous Imprisonment for afurther term of two years for the offence proved under Section 304(i) r/w.Section 34 I.P.C.

2. Tracing the history of the Appeals coming to be preferred by the Appellants, it comes to be known that they were all charged before the Courtof Sessions, the trial Court, for an offence punishable under Section 302I.P.C. on allegations that the deceased was one of the five brothers and theeldest of them all, is the first accused; that in spite of there being a clearpartition among all the five, the first accused pledging the shares of othersalso, obtained a tractor loan from the Bank but did not remit the loan amountas per the agreement and there had been a notice sent by the bank cautioningthat if the amount had not been paid, they would bring the properties forauction; that when the matter was discussed by the deceased Arumugha Pandianwith another brother Selvapandian, he opined that selling the share of thefirst accused and the tractor, the loan had to be repaid and others'properties could be saved and the first accused having become aggrieved ofthis stand taken by the deceased brother having sworn that he would put an endto the life of the deceased and in pursuance of the said previous enmity, on29/2/1996 at about 4.00 a.m. all the accused joining hands with each otherand in furtherance of the common intention to commit murder of the deceased,each armed with one Vettu Aruval, when the deceased was sleeping in theelectric motor room near the well, they assaulted the said Arumugha Pandianwith the said weapons, causing grievous injuries on his neck, face, rightshoulder, left shoulder, left chest, left hand and all other parts of thebody, resulting in the instantaneous death of the said Arumugha Pandian on thespot and hence, the Accused Nos. 1 to 3 have been charged for the offencepunishable under Section 302 I.P.C.

3. The prosecution, in its endeavor to prove the case put up by them with such standard of proof beyond reasonable doubts as it is required in law,would examine 16 witnesses for oral evidence as P.W.s. 1 to 16, besidesmarking 23 documents for documentary evidence as Exs. P.1 to P.23 and wouldalso mark 20 Material Objects as M.Os. 1 to 2 0 . In appreciation of theseevidence placed on record the trial Court would ultimately arrive at theconclusion that no offence under Section 302 I.P.C. r/w. 34 I.P.C, has beenproved but would find an offence under Section 304 (i) r/w. Section 34 I.P.C.having come to be proved, would sentence each of them to undergo RigorousImprisonment for 10 years and to pay a fine of Rs.5,000/- each, in default toundergo a further term of Rigorous Imprisonment for two years.

4. Assessing the case of the prosecution as it comes to be

established in evidence is that P.W.1 Muthammal the wife of the deceased woulddepose that the first accused is her husband's elder brother and the secondand third accused were also known to her; that her husband was born with fourothers including the first accused; that pledging the properties belonging toall the brothers, the first accused bought the tractor and since he did notrepay the loan amount, notice was issued by the Bank to the effect that hadnot the loan been settled, the lands would be sold in auction and therefore,himself and yet another brother Sella Pandian took the decision to sell awaythe tractor and a portion of the land belonging to the first accused andsettle the dues to the Bank and sell their properties and the said proposalwas forwarded to the first accused for which he did not consent; that aftertheir brother Sella Pandian leaving for Madras, the first accused came to herhusband and challenged his life for having taken such a decision; that shecautioned her husband to be careful; that about four years back, her husband

went to the fields at 9.00 p.m. one day along with one Murugan and the nextday morning by 4.00 a.m., herself and her relative Ramakrishnan went to thefield to supply coffee to her husband when all the three accused went to thepump-set room with Aruval and they followed them closely and in a short while,the accused entered into the pump set room and has assaulted him on hisshoulder, neck, hand and near the eye and on various parts of the body causinginjuries all over the body and the third accused assaulted him standing at theentrance of the motor room; that the said Murugan also woke up and startedshouting but the accused having warned him against informing the same toanyone with their life and ran towards south; that her husband diedinstantaneously on the spot; that herself and Ramakrishnan came to the Villageand informed the elders and thereafter went to Kayatharu Police Station andlodged the complaint with the Inspector of Police who reduced the complaintinto writing and herself signing the same, the said Ramakrishnan attested thesaid complaint which is Ex.P.1. She would also identify M.Os. 1 to 3 Aruvalssaid to have been handled by the accused. 5. P.W.2 Ramakrishnanwould also adduce evidence almost adhering the evidence of P.W.1 and wouldfurther develop the case a little more stating that the Inspector of Police onreceipt of the complaint of P.W.1, which was attested by him came to the spotand examined the witnesses and thereafter in three days, he again came andexamined, when he stated that the third accused was riding the tractor of thefirst accused when himself and the deceased were going; that the deceased toldthe third accused that himself joining hands with the first accused andrunning the tractor, he swindled the amount without paying the loan, as aresult of which, notice had been sent to him for the amount that is due fromhimself and the first accused for which the third accused retorted challenginghim with dire consequences. P.Ws. 3 and 4 would not adduce any validevidence and they would deny knowledge of anything about the incidence or anyother fact connected to the case. P.W.5 another brother of the first accusedand the deceased would speak to the effect that he is working as DeputyManager in Pallavan Transport Corporation; that the first accused and thedeceased are his brothers and he knows the second and third accused also; that10 or 14 years back, the first accused pledging the properties belonging toall the brothers obtained the tractor loan and did not repay the amount; thatnotice had been sent to him and the other brothers from the Bank warning thatif the loan was not paid, their properties would be sold in auction andtherefore, they took the decision to sell away the tractor and the portion ofthe land belonging to the first accused and clear the loans and to pass on thesaid message to the Bank and after passing on the information to the Bank whenthey were returning back home he challenged that with the company of the othertwo accused, he was going to finish the deceased; that he had alreadycommitted a murder and got convicted and warned him also to k eep away fromthe issue; that thereafter the deceased wrote him a letter asking him to comeagain and settle the issue; that on 29/2/1996, he was given to understand thatall the three accused joining hands with each other have murdered his brotherArumugapandian and the letter ultimately sent to him by the deceased would bemarked as Ex.P.2. 6. P.W.6 would not depose anything regarding the case. P.W.7 who was then working as DeputyManager in the Tirunelveli Branch of the State Bank of India would adduceevidence to the effect that one Srinivasan was the Manager then who had thengone as the Regional Manger and that he was conversant with his handwriting

and that the first accused was sanctioned with two loans for the sums ofRs.93,000/- and 25,500/- and certificate bearing the details would be markedas Ex.P.3. P.W.8 is the Village Administrative Officer who would depose tothe effect that on 29/2/199 6 at about 9.00 a.m. himself and Veeraiya oncoming to know that a body was lying in the pump set of the well belonging toArumugapandian went to the spot where when Inspector of Police and some otherPolice personnel were examining the witnesses; that the Inspector observed theplace of occurrence and prepared Ex.P.4 Obsevation Mahazar, which was attestedby himself and his brother; that then he recovered M. O.4, the blood strainedsoil. M.O.5 the sample soil. M.O.6 the Philips Radio. M.O.7 battery light.M.O.8 Quartz Clock. M.O.9 match box. M.O.10 beedi packet. M.O.11 Ball pointpen. M.O.12 blood strained shirt. M.O.13 blood strained mat. M.Os.14 and 15were jute clothes and M.O.16 bed sheet. All these material objects would berecovered by Inspector of Police under the cover of Ex.P.5 Form 95.

7. P.W.9 the Village menial at Kayatharu would depose that in the year 1966, one day at 11.00 a.m., he signed the confession statement whohe had not seen any of the three accused. P.W.10 yet another menial wouldsign the confession statement of the first accused in the Police Station,which would be marked as Ex.P.9. P.W.11 the Medical Officer at KovilpattiGovernment Hospital, at the time of occurrence would depose that on 29/2/1996,on receipt of Ex.P.10, he conducted the post-mortem at 3.30 p.m. on the deadbody of the deceased and would find 10 injuries, one on the front portion ofthe neck, the second one on the right temporal region extending till the rightneck, the third one on the face, the fourth one on the left jaw, the fifth oneon the throat, the sixth one on the right shoulder, the seventh one on theleft shoulder, the eighth one on the left chest, ninth and tenth one on theleft hand. This medical witness would also depose that the face, jaw, teethand mouth have all been damaged with fractures; that hyoid bone was not seen;that stomach contained semidigested rice particles to the extent of 80 grams.The post-mortem certificate issued by these witnesses would be marked asEx.P.11. This witness would also opine that these injuries are sufficient tocause the immediate death of a person all of a sudden and all those injuriescould have been caused by M.Os.1 to 3 and the death could have been caused11.30 hours prior to the post-mortem.

8. P.W.12, the Head Constable of Kayatharu Police Station would depose that on 29/2/1996 he was entrusted with the body of the deceasedat 12.00 noon and that he took the body to the Government Hospital, Kovilpattiand after the post-mortem was over, he recovered M.Os 17 lungi, M.O.18 towel,M.O.19 waist thread, M.O.20 Titan watch and entrusted the same to the PoliceStation; that the card issued to him would be marked as Ex.P.12. P.W.13 woulddepose that on 29/2/1996 at about 11.30 a.m., he took the First InformationReport to the Magistrates Court and entrusted the same at 3.15 p.m. and thereceipt issued would be marked as Ex.P.13. P.W.14 is one who is working asthe Assistant in the Magistrates Court and he would depose that on receipt ofEx.P.14 requisition given by the Inspector of Police for doing chemicalanalysis on M.Os. 4, 5, 12, 13 and 16, he sent the same to the ChemicalAnalysis Centre under Ex.P.15 letter and the chemical analysis report receivedas Ex.P.16. The Serological report is Ex.P.17 and a comparitive report senton P.4 and P.5 is Ex.P.18. P.W.15 who was working as the Inspector of Police

and at the time of the incident at Kayatharu Police Station would depose tothe effect of P.W.1 coming to the Police Station accompanied by oneRamakrishnan and giving the statement which got reduced into Ex.P.1 complaint,based on which would register the case in Crime No.67 of 1996 under Section302 and would prepare Ex.P.19 First Information Report and send the copies tothe concerned Court through P.W.13. This witness would also depose, went tothe spot and prepared Ex.P.4 Observation Mahazar and would examine thewitnesses therein and would recover the M.O.s 4 to 16 under the cover ofEx.P.5 and thereafter, since he got transferred, he went to another Section.P.W.16 is the Inspector who succeeded P.W.1 5 who having continued theinvestigation in the above case examining certain witnesses and on coming toknow that they have made arrangements to take the accused to the Policecustody and on examining them, the first accused gave the confession in thepresence of P.Ws. 9 and 10 on 19/3/1996 pursuant to which, M.Os. 1 to 3 havebeen made under the cover of Ex.P.23 form attested by the witnesses; then onexamining the remaining witnesses and making arrangements to send the M.Os.for chemical analysis and collecting the report from the centre and oncompletion the investigation would lay the charge in the case for an offencepunishable under Section 302 read with 34 I.P.C. on 24/7/19 96.

9. During arguments, the learned counsel appearing on behalf of theappellants in C.A.No. 173/2001, besides narrating the facts and circumstancesof the case as projected by the prosecution would state that the appellantsare in jail from the date of judgment; that the date of occurrence was on28/2/1996 at 10.00 p.m.; that A.1 is the brother of the deceased and A.2 andA.3 are his relatives; that P.W.1 the wife would depose that along with P.W.2Ramakrishnan, the next day around 4.00 a.m., she went to the spot and at thattime, the accused committed the offence which she witnessed. P.W.1 is said tohave gone there at that early hour in order to supply her husband with coffeeis said to have witnessed the occurrence, which is quite improbable. She issaid to have been accompanied by P.W.2 and he is also said to have witnessedthe occurrence. Excepting these two eye witnesses, there is no other witnessmuch less, eye witness to the occurrence at all. The deceased is said to havebeen sleeping in the motor pump set room along with P.W.3; that the accusedcut the deceased with the Aruval and caused his death, is the prosecutioncase; that P.W.2 is the brother's son of the deceased. It is P.Ws.1 and 2jointly gave Ex. P.1 complaint before P.W.15 Inspector of Police andinvestigating Officer at 7.30 a.m. and it is said that he prepared Ex.P.19First Information Report and sent to the Judicial Magistrate, Kovilpatti at11.30 a.m. through P.W.13 Constable. The inquest was held by these witnessesand then, the body was subjected to post-mortem and P.W.1 Doctor found nineinjuries on the body of the deceased, which he would note in Ex.P.11. P.W.5also recovered M.Os. 4 to 16 on the spot. M.Os. 1 to 3 Aruvals wererecovered by P.W.16 Inspector; that all the accused in this case surrenderedbefore the Court; that on 11/3/1996, the Police custody was taken by P.W.16and on 19/3/1996 at about 8.30 a.m. in the presence of P.Ws.9 and 10, theaccused is said to have confessed in Ex.P.22 consequent to the admissibleportion of which M.Os.1 to 3 are said to have been recovered under the coverof Ex.P.23 mahazar.

the first appellant/accused to purchase the tractor and since the loan was notcleared, the land belonging to the other members of the family was also soughtto be brought for sale in auction and since the deceased joining hands withP.W.5, yet another brother of the first accused and gave a proposal bindingonly the land belonging to the share of the first accused and the tractorbeing allowed to be sold, the properties of others could be saved andtherefore, to wreak vengeance, the first accused joining hands with accusedNos. 2 and 3 also committed the murder of the deceased is the firm case ofthe prosecution.

11. The learned counsel would point out that P.Ws.1 and 2 are not reliable witnesses and their evidence is improbable and unbelievable andthere is absolutely no chance for them to have witnessed the occurrence so asto know this accused to have committed the same. There was absolutely noparticipation for these witnesses in the occurrence at all. In spite of theyhaving come forward to depose that they very closely watched the scene ofoccurrence without any participation at all and only after dawn, coming toknow of the death of her husband, P.W.1 has gone to the Police along withP.W.2 and there is absolutely no evidence for herself and P.W.2 to have beenat the spot by 4 .00 a.m., which is not only artificial but also unbelievable.

12. The learned counsel would attempt to falsify the case of the prosecution with the help of the medical evidence stating that in thepost-mortem examination P.W.11 the post mortem Doctor would find 80 grams ofsemi digested rice particles remaining in the stomach; that it is the definiteevidence of P.W.1 in the cross-examination that prior to leaving for the pumpset room the previous night around 9.00 p.m., the deceased took his last mealand if it is so, to the condition that was seen by post-mortem Doctor, 80grams of semi digested food particles to remain, the death could have takenplace hardly 2 + hours or three hours thereafter and therefore, around 11.30p.m., at any cost before 12.00 mid-night, the occurrence would have takenplace and there is absolutely no reason for 80 grams of semi-digested foodparticles to remain in the stomach 7 hours after consumption of the same. Thetheory of the prosecution that th e occurrence took place only at 4.00 a.m.in the next morning and that P.Ws. 1 and 2 witnessed the said occurrence;that according to the medical evidence either P.Ws 1 and 2 would not havewitnessed the occurrence at all since it should have happened around 11 or11.30 p.m. the previous day or if the occurrence is to take place by 4.00a.m. in the next morning as it is the case of the prosecution through theevidence of P.Ws. 1 and 2, there must also be evidence for the deceased tohave taken his last meal around 1.30 p.m. or 2.00 p.m. and since absolutelyno such evidence comes forth, is nothing but a false fiction.

13. The learned counsel would therefore, submit that P.Ws 1

and 2 are planted for want of eye witness in the case and their evidence iscompletely unreliable particularly when the medical evidence shatters theirversion regarding the time of occurrence.

14. On the contrary, to this vital aspect of the case, the Government Advocate on the Criminal Side would argue as to why a hypotheticalconclusion should be arrived at regarding the time of occurrence since the

very post- mortem Doctor has himself fixed the exact time of occurrence as11.30 hours prior to the post mortem and since the post- mortem commenced at3.30 p.m., the occurrence should have taken place around 4.00 a.m., thusexactly correlating the evidence of P.Ws 1 and 2. According to the learnedGovernment Advocate, it is not only the stomach contents but also the othervital aspects such as Rigor Mortis and the external conditions of the body,which were found at the time of post-mortem by this key witness, he hasultimately given his opinion to the effect that the deceased should have died11 + hours prior to the conduct of post-mortem and hence, the version of P.Ws.1 and 2 that the occurrence took place at 4.00 a.m. on 29/2/1996 and there isabsolutely no ambiguity so far as this vital aspect of the time of occurrenceand therefore, taking only the stomach contents into consideration, the caseof the prosecution cannot be decided.

15. The learned counsel appearing on behalf of the appellantin C.A.No.1189 of 2000 would point out that the knife recovered from A.1 hasnot been sent for medical examination at all; that it is the firm case of theprosecution that the deceased while sleeping inside the motor and pump setroom, the occurrence had taken place and that A.1 and A.2 attacked thedeceased entering into the said room while A.3 attacked him from outside theroom, the learned counsel would point out that it is relevant to note that thebody was lying only inside the room and therefore, it is highly doubtfulwhether P.W.3 would have attacked the deceased in the manner alleged by theprosecution witnesses.

16. The learned counsel would also point out that there was absolutely no motive for A.3 at all and hence, the case of A.3 should belooked into in a different angle without treating his case along with theother accused.

17. The learned counsel for the appellant in C.A.No. 173 of2001 would further point out that there was a motive for foisting the caseagainst A.1 and A.2. Since a close relative girl of P.W.2 was proposed formarriage with A.2 and since his parents did not consent for the said marriage,A.2 is said to have been falsely implicated in the case. This cannot beaccepted since the aggrieved party if at all is not P.W.2 but A.2 andtherefore, no motive could be attributed to P. W.2 for foisting the caseagainst A.2. The learned counsel would also further argue that in the factsand circumstances of the case, if at all it would fall under Section 304 (2)instead of 304 (1) and would cite a judgment reported in 2001 6 SC - 145,wherein it is held that "In such state of medical evidence it will not be proper todraw an inference against the accused of his having committed murder of thedeceased punishable under Section 302 I.P.C. The injury dealt by him by asharp weapon had cut into the intestine. Though an intention to cause deathor such bodily injury as is likely to cause death cannot be attributed to him,knowledge is attributable to the accused that an injury by a knife into theabdomen was likely to cause death. As it was a case of sudden fight, the actof this accused would amount to culpable homicide not amounting to murderpunishable under Part II of Section 304 I.P.C.

On the part of the learned Government Advocate, he would submit that theprosecution has let in substantial evidence abundantly and in a reliablemanner, the prosecution has proved the case beyond reasonable doubts.

18. Elaborating, the learned Government Advocate would say

that 16 witnesses have been examined, 23 documents have marked and 20 materialobjects have also marked and the prosecution has also proved the motive forthe murder. The learned counsel would also point out that in thecross-examination of the investigating Officer, it would further come to beknown that the first accused has already been convicted and sentenced for acapital punishment for having indulged in another murder earlier andtherefore, no leniency should be shown to him even in the punishment. Thelearned Government Advocate citing the judgment of the Honourable Apex Courtreported in LEELA RAM (DEAD) THROUGH DULI CHAND Vs STATE OF HARYANA ANDANOTHER (2000 SCC CRIMINAL - 2 22) where the eye witnesses asserted that theaccused had fired two shots at the deceased but the Doctor conductingpost-mortem examination that both the injuries could have been caused by asingle shot and finding two entry injuries on the dead body. Aggrieved at thecross-examination that both the injuries could have been caused by a singleshot held, there was not a material contradiction. Evidence should beconsidered from the point of view of trust worthiness, held, High Court erredin acquitting the accused. Hence conviction under Section 302 I.P.C. andSection 27 Arms Act and sentence of life imprisonment passed by the SessionsJudge restored.

19. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for theappellants in both the above appeals and the learned Government Advocatecontra what could be assessed from the above Criminal Appeals is that both theabove appeals have arisen out of one and the same judgment dated 19/10/2000rendered in S.C.No. 101 of 1997 by the Court of Principal Sessions Judge,Tuticorin thereby convicting all the accused Nos. 1 to 3 who faced the trialbefore the lower Court for the offence under Section 304 (1) read with 34I.P.C. and sentencing them to under go rigorous imprisonment for 10 years andto pay a fine of Rs.5,000/- in default to undergo a further RigorousImprisonment for two years.

20. The case of the prosecution is that the first accused having become aggrieved against his own brother, the deceased who joined handswith another brother of them namely P.W.5 who was at Madras, acted against hisinterest in proposing to leave the portion of the land belonging to the firstaccused and the tractor he purchased, to be sold and the loan amount realisedin order to save the lands of the other brothers, aggrieved against the saidproposal and to wreak vengeance against the deceased brother, the firstappellant in C.A.No.1189 of 2000 joined hands with the second appellant, whois the second accused and the other accused the appellant in C.A.No. 173 of2001 and all of them armed with M.Os. 1 to 3 respectively on 29/2/1996 atabout 4.00 a.m. assaulted the deceased while he was sleeping in the motor andpump set room near the common well in the field and caused his instantaneous death. P.W.1 is the wife of the deceased, P.W.2 their relative One Ramakrishnan and P.W.3 Murugan who was sleeping along with the deceased havebeen examined as eye witnesses and they have confirmed the case of theprosecution without any variation or violent contradiction so as to createdoubts and hence so far as these eye witnesses are concerned, the case of theprosecution has been held to have been proved. The other witnesses. P.Ws 5to 10 are either the mahazar witnesses or the Bank Deputy Manager who wouldspeak to the facts of extending the loan in favour of the first accused.

21. Further vital evidence comes forth from P.W.11 the Doctor

Arguments

who performed the post-mortem on the body of the deceased who wouldcategorically fixed the time of occurrence by 4.00 a.m., thus himselfshattering the finding that there had been semi digested food particlesweighing 80 grams found by himself in the stomach of the deceased. However,this medical witness may not be knowing as to what time the deceased took hislast meal. But, P.W.1 in her cross-examination would depose to the effectthat her husband took his meal around 9.00 p. m., the previous night and wentto sleep in the pump set room. If it is so, the doubt that is raised on thepart of the defence counsel that the normal time for digestion since being 2to 3 hours in a human being, the food that had been taken by the deceasedaround 9.00 p.m. the previous night should have been at any cost digested andgone out of the stomach completely within 12.00 midnight and for 80 grams ofsemi-digested food particles to remain in the stomach, the occurrence shouldhave taken place around 11.30 or 12.00 the previous night and not at 4.00 a.m.the next morning which only falsifies the medical evidence, since the lastmeal that was taken by the deceased as fixed by P.W.1 was 9.00 p.m. theprevious night on 28/2/1996.

22. On the contrary, on the part of the learned Government Advocate it would be argued that the P.W.11, the Doctor who performed thepost-mortem on the body of the deceased has very clearly offered his opinionin due consideration of not only the stomach contents but also the otheraspects found in the body like Rigor Mortis and the other conditions of theorgans and the system has fixed the death to have taken place 11 + hours priorto the post-mortem, which was held between 3.30 to 5.00 p.m. on 29/2/1996thereby very clearly stating that the occurrence should have taken placearound 4.00 a.m. on 29/2/1996, which is exactly the case of the prosecution.Therefore, while direct evidence comes forth from P.W.11 and Ex.P.11 thepost-mortem certificate in the above said manner, it is the responsibility ofthe defence to have interrogated the Doctor regarding the fixing of the timeof death of the deceased at 4.00 a.m. on 29/2/1996 in respect of the stomachcontents as found by him in the light of the evidence of P.W.1 and no sucheffective cross examination h as been either held with P.W.11 Doctor nor anypositive result obtained and therefore, this Court is of the view that theopinion of the Doctor given in Ex.P.11, and in his oral evidence only confirmsthe case of the prosecution and the same has to be held valid and reliable.

23. The other evidences adduced orally, documentarily and through the material objects also would only suggest the occurrence to havetaken place at the time, place and in the manner alleged without anyimprobability or unreliability or violent contradictions and therefore, there

24. However, the learned counsel for the appellants would

point out that the presence of the appellant in C.A.No. 1189 of 2000, theaccused No.3 before the lower Court is doubtful from the very manner in whichhe is said to have been found assaulting the deceased. However, such minutepoints cannot weigh heavily while a overall decision is taken regarding thewhole occurrence in an integrated manner and hence it has to be concluded thatthe lower Court itself has considered the position and has taken a lenientview to convict all the appellant/accused Nos. 1 to 3 under Section 304 (1)read with 34 I.P.C. awarding a sentence of Rigorous Imprisonment for 10 yearsand of a fine of Rs.5,000/-, thus avoiding the conviction under Section 302I.P.C and a capital punishment with which the appellants must be satisfied.

25. There is absolutely no lack of evidence or less evidence nor is there any legal flaw or inconsistency nor any other legal infirmity oflacuna worth being considered or any patent legal error or perversity inapproach has been either pointed out or seen to have crept into and therefore,the interference of this Court sought to be made into the judgment of thetrial Court in both the above Criminal Appeals is neither necessary in thecircumstances of the case nor required under law and the only conclusion thatcould be arrived at by this Court is to dismiss both the above CriminalAppeals confirming the judgment of the lower Court.In result

(i) . there is no merit in both the above Criminal Appeals andthey are dismissed.

(ii) . the judgment dated 19/10/2000 rendered in S.C.No. 101 of 1997convicting the appellants under Section 304 (1) read with Section 34 I.P.C.and sentencing each of the appellants to undergo Rigorous Imprisonment for 10years and to pay a fine of Rs.5,000/- in default a further RigorousImprisonment for two years is hereby confirmed.

mvs.Index: YesInternet: Yes

To

The Principal Sessions Judge, Tuticorin.