P.N.PRAKASH , J.

1. These criminal appeals are filed against the Judgment and Order, dated 01.04.2019, in S.C.No.9 of 2012, on the file the learned Additional District and Sessions Judge, Virudhunagar.

2. The Trial Court framed two charges against the appellants, as detailed below:

3. It is seen that pending trial, Irulan (A1) died and therefore, the charges framed against him were abated.

4. By Judgment dated 01.04.2019, the Trial Court convicted the appellants and sentenced them, as detailed below:-

The sentences imposed on the accused 2 and 3 were ordered to run concurrently. The period of sentence already undergone by accused 2 to 4 has been set off under Section 428 of the Code of Criminal Procedure.

5. The prosecution case is as under:

5.1. At the outset, it would be apt to point out that there are two Madurai Veerans in this case. They are, Madurai Veeran (P.W. 1), son of the deceased Marudhan and Madurai Veeran (A3), son of Irulan (A1).

5.2. The deceased Marudhan and Irulan (A1) were related to each other and they owned agricultural lands in the southern side of Tamilpadi Village. They shared a common boundary and also had a common well, from where both of them used to draw water. As is normal in the countryside, both had longstanding disputes with regard to shareing of the water from the common well. While so, it is alleged that on 28.08.2009, around 8 o'clock in the morning, when the deceased Marudhan was drawing water from the common well by using a pumpset, he was fatally attacked by Irulan (A1) and his three sons, namely, Amirtharaj (A2), Madurai Veeran (A3) and Packiaraj (A4), in the presence of his son Madurai Veeran (P.W.1) and his daughter-in-law Nagajothi (P.W.2). After attacking the deceased Marudhan indiscriminately, they severed his left hand and took it as a trophy with them. When Madurai Veeran (P.W.1) tried to interfere, he was threatened by the group and therefore, he feigned helplessness. The foursome left the place of occurrence with the severed hand of the deceased in their M80 Motorcycle (M.O.5) bearing registration No.TN59 J0008.

5.3. On a written complaint (Ex.P1) given by Madurai Veeran (P.W.1), Kaalaichamy (P.W.8), Head Constable, registered a case in Thiruchuli Police Station Crime No.220 of 2009, on 28.08.2009, at 10.00 a.m., for the offences under Sections 302 and 506(II) I.P.C., against Irulan (A1), Amirtharaj (A2), Madurai Veeran (A3) and Packiaraj (A4) and prepared the printed First Information Report (Ex.P13), which reached the jurisdictional Magistrate at 05.51 p.m., on the same day, as could be seen from the endorsement thereon. The investigation of the case was taken over by Padhamuthu (P.W. 9), Inspector of Police, Thiruchuli Police Station, who went to the place of occurrence at 10.30 a.m., and prepared the Observation Mahazar (Ex.P3) and Rough Sketch (Ex.P14) in the presence of the witnesses Paulraj (not examined) and Raman (P.W.3). From the place of occurrence, he recovered bloodstained soil (M.O.8) and soil without bloodstain (M.O.9) under the Cover of a Mahazar (Ex.P4). He conducted inquest over the body of the deceased and the Inquest Report was marked as Ex.P15.

5.4. In the meanwhile, a severed hand was found near a bridge in Aruppukkottai and on information, Chandrasekaran (P.W. 5), Village Administrative Officer of Aruppukkottai, went to the place, found the severed hand and informed it to Aruppukkottai Police Station. On getting information about this, Padhamuthu (P.W.9) went to Aruppukkottai, where the severed hand was found in a fertilizer bag (M.O.7) and a bloodstained billhook (M.O.2) beside it. Padhamuthu (P.W.9) seized the severed hand, yellow colour fertilizer bag (M.O.7) and the billhook (M.O.2) under the Cover of a Mahazar (Ex.P11) and prepared the Observation Mahazar (Ex.P10) and also Rough Sketch (Ex.P16). He also conducted inquest with regard to the severed hand and the Inquest Report was marked as Ex.P17. The body of the deceased was sent to the Government Hospital, Thiruchuli. The severed hand was also sent there and after matching it with the body, an inquest was conducted by Padhamuthu (P.W.9) and the said Inquest Report was marked as Ex.P18.

5.5. Dr.Selva Isakki (P.W.6) performed autopsy on the body of the deceased and issued the Postmortem Certificate (Ex.P12), wherein she has recorded six external injuries, including the severed left hand. In the final opinion, she has stated as follows:

“1. Hypo Volemia due to excessive loss of blood.

2. Neurogenic shock due to injury to major vital organs. Appears to have died 6 – 10 hours before autopsy.”

5.6. Amirtharaj (A2) was arrested by Padhamuthu (P.W.9) on 31.08.2008 and M80 Motorcycle (M.O.5) bearing registration No.TN59 J0008 was recovered in the presence of Paulraj (not examined) and Raman (P.W.3). Based on his confession statement, the billhook (M.O.4) used by him, was also recovered under the Cover of a Mahazar (Ex.P7). On 08.09.2009, A1, A3 and A4 surrendered before the learned Judicial Magistrate, Aruppukkottai, on coming to know of which, the Police took them into custody and based on their confession statements, the Mattock (M.O.1) used by Irulan (A1) and the billhook (M.O.3) used by Packiaraj (A4) were recovered under the Cover of a Mahazar (Ex.P9).

5.7. After examining various witnesses and collecting reports from the experts, the investigation of the case was completed by Jebaraj (P.W.10), Inspector of Police, Thiruchuli Circle, who succeeded Padhamuthu (P.W.9) and a Final Report was filed against A1 to A4 in P.R.C.No.43 of 2011 before the learned Judicial Magistrate, Aruppukkottai for the offences under Sections 302 and 506(II) I.P.C. against Irulan (A1), Amirtharaj (A2), Madurai Veeran (A3) and Packiaraj (A4).

6. On the appearance of the accused, the provisions of Section 207 of the Code of Criminal Procedure were complied with and the case was committed to the Court of Session in S.C.No.9 of 2012 and made over to the Additional Sessions Judge, Virudhunagar, for trial. The Trial Court framed charges against the accused, as detailed in Paragraph No.2 supra.

7. When questioned, the accused pleaded "not guilty". To prove the case, the prosecution examined ten witnesses, marked 28 exhibits and nine material objects. During the trial, Irulan (A1) died. When A2 to A4 were questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against them, they denied the same. From the side of the accused, no witness was examined nor any document marked.

8. The Trial Court, after considering the evidence on record and hearing either side, by Judgment and Order dated 01.04.2019, convicted the accused, as detailed in Paragraph No.4 supra.

9. Challenging their conviction and sentences, Madurai Veeran (A3) and Packiaraj (A4) have filed Crl.A.(MD) No.220 of 2019 and Amirtharaj (A2) has filed Crl.A.(MD) No.476 of 2019. 10. Heard Mr.V.Kathirvelu, learned Senior Counsel, assisted by Mr.A.K.Azhagarsami, learned counsel for the appellants in Crl.A.(MD) No.229 of 2019; Ms.P.Yasmin Begum, learned counsel for the appellant in Crl.A.(MD) No.476 of 2019 and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the respondent.

11. The prosecution case rests on the ocular testimony of Madurai Veeran (P.W.1) and his wife Nagajothi (P.W.2). Madurai Veeran (P.W.1) was examined in chief on 09.08.2017. In his evidence, he has stated that the deceased Marudhan was his father; he knows the accused; they had frequent quarrels with regard to sharing of water from the common well in connection with which, they also had a civil litigation in the Munsif Court in Aruppukkottai; on 28.08.2009, around 8 o'clock in the morning, while he, his wife Nagajothi (P.W.2) and his junior paternal uncle Shanmuganathan (not examined) accompanied his father to their lands, his father wanted to water the groundnut crops in their land by using a pipe; at that time, Irulan (A1) and his sons came there; Irulan (A1) was armed with a mattock (M.O.1) and his sons were armed with billhooks (M.Os.2 to 4); Irulan (A1) commanded his sons (A2 to A4) to attack his (P.W.1's) father Marudhan; Irulan (A1) attacked his father with the mattock (M.O.1) and hit him on his leg; when his father fell down, Madurai Veeran (A3) hacked his father's left hand, on account of which, the left hand got severed; Amirtharaj (A2) also hacked his father on the head; Packiaraj (A4) cut his father on his right hand; due to the severe injuries, his father fell down; when he (P.W.1) tried to intervene, the accused threatened him (P.W.1) with dire consequences and therefore, he (P.W.1) hid himself inside the well; thereafter, they took the severed hand and put it in a sack (M.O.7) and walked across the road, where they parked their M80 Motorcycle (M.O.5) and left in that; thereafter, he found his father in a pool of blood; he went along with his junior paternal uncle Shanmuganathan (not examined) to the Police Station and gave a complaint (Ex.P1); he identified the weapons (M.Os.1 to 4) used by the accused, M80 Motorcycle (M.O.5) and also the sack (M.O.7) that was used by the accused to carry the severed hand. He was not cross-examined on the same day, but was recalled and cross-examined on 31.08.2017. In his cross-examination, he admitted that 108 Ambulance was brought, in which, his father was taken to the hospital. He has inter alia stated in the cross-examination that apart from the common well, both families have dug wells in their properties; a settlement was arrived at in the civil suit filed by Irulan (A1), after which, Irulan (A1) made provisions for a separate pumpset in his land; he was in love with Nagajothi (P.W.2) and had the marriage registered three days before the incident, which was not to the liking of his father. However, he has denied the suggestion that on account of he marrying Nagajothi (P.W.2), there was a quarrel between his parents and therefore, his mother left for her parental home. He has also denied the suggestion that his father had sent him out of the house for having married Nagajothi (P.W.2) and that he was living in Nagajothi (P.W.2)'s house and was not there at the time of the incident.

12. Nagajothi (P.W.2) was examined in chief on 09.08.2017 and she has substantially corroborated Madurai Veeran (P.W.1). Of course, in her chief-examination, she has stated that one of the accused was having an iron rod. She was not cross-examined on the same day, but was recalled and cross-examined on 31.08.2017. She has denied the suggestion that her father-in-law did not accommodate her in his house, because he was not happy with her marriage. She has also denied the suggestion that her mother-in-law had quarrelled with her father-in-law and left the house.

13. Mr.V.Kathirvelu, learned Senior Counsel, took us through the evidence of Raman (P.W.3) and submitted that there are contradictions with regard to the timings in this case and therefore, the presence of Madurai Veeran (P.W.1) and Nagajothi (P.W.2) at the place of occurrence is doubtful.

14. Raman (P.W.3) is the father-in-law of the deceased Marudhan. He was living in Sembatti Village. Raman (P.W.3), in his evidence, has stated that on 28.08.2009, while he was in Sembatti Village, he received information that his son-in-law Marudhan has been fatally attacked and therefore, he came to Tamilpadi Village around 8 o'clock in the morning; at that time, Police were there and in his presence, the Police prepared the Observation Mahazar and Seizure Mahazar, etc. Raman (P.W.3), in his evidence, has further stated that on coming to know about the incident, his daughter (wife of the deceased) left for Tamilpadi Village around 7 o'clock in the morning. The learned defence counsel contended that the incident was not witnessed by anyone and only thereafter, Madurai Veeran (P.W.1) and Nagajothi (P.W.2) were planted by the Police. Raman (P.W.3) was 73 years old, when he was examined in the Trial Court on 23.08.2017 and was giving evidence in connection with an incident, which had taken place in August, 2009. In the cross-examination by the defence, he has stated that he was living in Sembatti Village, which is two kilometres away from Aathipatti Village. Aathipatti Village is ten kilometres away from Thiruchuli. Tamilpadi Village, where the incident had taken place, is three kilometres away from Thiruchuli. Thus, even according to the defence, Raman (P.W.3) was about fifteen kilometres away from Tamilpadi Village, where the occurrence had taken place. Therefore, it is obvious that Raman (P.W.3) could not have come so quickly to Tamilpadi Village.

15. Bearing in mind all the aforesaid facts, we are of the view that the testimony of Raman (P.W.3) that he came to Tamilpadi Village at 8 o'clock in the morning may not be correct. However, this by itself cannot dislodge the testimony of Madurai Veeran (P.W.1) and Nagajothi (P.W.2).

16. The learned Senior Counsel further contended that Madurai Veeran (P.W.1) did not go to the rescue of his father when the attack began and therefore, his conduct becomes suspect. In support of his contention, the learned Senior Counsel placed strong reliance on the Judgment of the Supreme Court in AIR 1993 SC 1462 [LQ/SC/1993/227] [Anil Phukan vs. State of Assam].

17. This Court carefully considered the aforesaid decision. In Paragraph No.5 of the aforesaid ruling, the Supreme Court has disbelieved the evidence of Ajoy (P.W.3 therein) not only on the ground that he did not go to the rescue of the deceased, but also because, he did not lodge the first information report. In the present case, since four people were armed with deadly weapons before attacking the deceased, Madurai Veeran (P.W.1) and his newly married wife Nagajothi (P.W.2) cannot be expected to challenge them. That apart, the written complaint (Ex.P1) has been given by Madurai Veeran (P.W.1), unlike in Anil Phukan (supra).

18. The learned Senior Counsel further contended that in the Observation Mahazar (Ex.P3), there is no reference about the blood around the body of the deceased and also in the Rough Sketch (Ex.P14) and there is no reference about the well of the deceased. The learned Senior Counsel further contended that when the dispute between the families of the deceased and the accused with regard to the enjoyment of the common well was settled, there is no possibility for any motive.

19. This issue can be looked at from another angle. Even after the parties had arrived at a settlement, if the deceased were to draw water from the common well, that could also have infuriated the accused. The non-mentioning of bloodstain in the Observation Mahazar (Ex.P3) cannot be said to be fatal, because bloodstained soil (M.O.8) has been recovered by the Investigating Officer from the place of occurrence under the Cover of the Mahazar (Ex.P4). The Serology Report (Ex.P26) shows that human blood of 'A' group was detected in the soil that was sent for chemical examination through the jurisdictional Magistrate.

20. The learned Senior Counsel further contended that there is a delay in lodging the complaint and also the First Information Report reaching the jurisdictional Magistrate Court. We are unable to appreciate this submission because, the incident is said to have taken place around 8 o'clock in the morning. After the complaint had reached the police station which is four kilometres away from the place of occurrence, the F.I.R. has been registered at 10 o'clock in the morning and it has reached the jurisdictional Magistrate Court on the same day at 5.51 p.m. Therefore, we do not see this as a huge delay especially, in the light of the fact that the severed hand was found elsewhere within the limits of another jurisdiction and the Investigating Officer had to rush there to recover the same as well as to conduct inquest over the body and the severed hand of the deceased.

21. The learned Senior Counsel further contended that the Investigating Officer had taken a sniffer dog and that 108 Ambulance cannot be pressed into service for carrying the dead.

22. Pathamuthu (P.W.9) himself, in his examination-in-chief, has stated that he went along with a sniffer dog to the place of occurrence. He had not hidden this from the gaze of the Court. Just because the Investigating Officer Pathamuthu (P.W.9), as a matter of routine, had called for the services of a sniffer dog, that by itself, cannot discredit the evidence of Madurai Veeran (P.W.1) and Nagajothi (P.W.2).

23. The learned Senior Counsel further contended that rigor mortis had set in the body of the deceased as could be seen from the Postmortem Report (Ex.P12) and therefore, the incident must have taken place prior to 8 o'clock in the morning. The Postmortem Report (Ex.P12) has clearly opined that the death would have occurred 6 to 10 hours prior to the autopsy. The autopsy began at 3.40 p.m. on 28.08.2009. If so, 6 to 10 hours prior to 3.40 p.m. would be before 09.40 a.m. and within 05.40 a.m. In this case, the deceased was attacked around 08.00 a.m.

24. As far as rigor mortis setting in the body of the deceased is concerned, no question has been put to Dr.Selva Isakki (P.W.6) on this aspect, for which, Mr.V.Kathirvelu, learned Senior Counsel, submitted that treatises on medical jurisprudence support his plea that rigor mortis would not set in within six hours. In this case, the incident had taken place around 08.00 a.m. at Virudhunagar, which is a dry area and the autopsy began at 03.40 p.m. on the same day. Therefore, rigor mortis would have substantially set in over the dead body as noted in the postmortem report (Ex.P12).

25. For all the aforesaid reasons, we find no merits in the appeals preferred by the appellants and the conviction recorded by the Trial Court warrants no interference.

In the result,

➢ The criminal appeals are dismissed.

➢ The Judgment and Order dated 01.04.2019 made in S.C.No.9 of 2012, on the file of the learned Additional District and Sessions Judge, Virudhunagar, are upheld.

➢ The orders of suspension of sentence granted by this Court on 14.09.2020 in Crl.M.P.(MD) No.3695 of 2020 qua A2 and 22.09.2020 in Crl.M.P.(MD) No. 4160 of 2020 qua A3 & A4 stand cancelled.

➢ Since the appellants / accused 2 to 4 are on bail, it is directed that the Trial Court shall take steps to secure them and to commit them to prison to serve out the period of sentence.