Nachimuthu & Anr vs State Of Tamil Nadu

NACHIMUTHU & ANR. ..... APPELLANTS

VERSUS

STATE OF TAMIL NADU ..... RESPONDENT

O R D E R

1. We have heard learned counsel for the parties.

2. The present is a case of fratricide, the

deceased was the brother of accused No. 1. Accused

No. 2 is the wife of Accused No. 1. As per the

prosecution story a dispute had arisen between the two

brothers and their families on account of their land

holdings with the result that they were not on talking

terms. On the 7th October, 1989, accused No. 1 armed

with the handle of a spade and accused No. 2 with a

stick caused injuries to the deceased after they had

intercepted him in the fields and after they had

shouted out that they would teach him a lesson for

wanting his share in the property. This incident was

seen by P.W. 1, the daughter of the deceased. She ran

away from the spot and while doing so, she came across

Crl.A. No. 889 of 2004 2

P.W. 2, her mother and her younger sister, running

towards the scene of occurrence as they had been

attracted by the noise that had come about. At that

stage, both P.W. 1 and P.W. 2 saw the accused again

beating the deceased which led to his immediate death.

The accused were ultimately arrested and were charged

for an offence punishable under Section 302 of the

Indian Penal Code. The trial court relying on the

evidence of P.Ws. 1 and 2, the primary witnesses, as

also going through the nature and extent of the

injuries caused, convicted the accused under the

aforesaid Section and sentenced them to life

imprisonment.

3. An appeal was thereafter taken to the High

Court. The High Court has modified the conviction to

an extent observing that as it was difficult to fix the

fatal injury on either of the two accused both the

accused were liable to be convicted under Section 302

read with Section 34 of the IPC. A Special leave

Petition was filed at the instance of the two accused

before this Court wherein leave was granted on the 16th

August, 2004.

4. We have heard Mr. Ratnakar Dash, the learned

senior counsel for the appellants and Mr. S.

Thananjayan, the learned counsel for the respondent-

Crl.A. No. 889 of 2004 3

State of Tamil Nadu. We find that the evidence of the

two witnesses P.W. 1, the daughter, and P.W. 2 the wife

of the deceased, cannot be faulted. The eye witness

account is also corroborated by the medical evidence

and the report of the Serologist which reveals that the

blood found on the handle of the spade was human blood

of blood group 'O' which was the blood group of the

deceased.

5. Faced with this situation, Mr. Dash has argued

that the case would fall within the definition of

murder but fell within the ambit of Section 304 Part I

or Part II of the IPC and that in any case it was only

accused No. 1 who had caused the injuries on the person

of the deceased. He has pointed out that in the facts

of the case Section 34 was not applicable insofar as

accused No. 2 was concerned. We have examined these

arguments very carefully but find them to be wholly

without substance. The injuries on the deceased are

reproduced below:

"External:

1. Abrasion with contrusion present on the left index and middle fingers.

2. Bleeding right ear present.

3. Both upper forearms fracture present.

4. A lacerated injury 1X1X5 cm. Present over the upper 2/3 and lower 1/3 of the right leg. Abrasion on the right knee present.

5. A lacerated injury present over the left leg at the level of upper 2/3 and 1/3 measuring 1x1cm. Bone depth.

6. Abrasion present on the both right and left

Crl.A. No. 889 of 2004 4

foot.

7. Abrasion present on the left elbow joint.

Internal

1. On opening of the skull fracture present on the right temporal lobe of the skull.

2. A lacerated injury present on the right temporal lobe of the brain.

3. 100ml. Of blood present in the cranial cavity.

4. On opening of the thorax No. 1 abdomen, no evidence of injury.

5. On opening of the right forearm, fracture present in the radius and ulna bone at the level of upper 3/2 and lower 1/3.

6. On opening of the left forearm, fracture present on the both radius and ulna bone present.

7. On opening of the both left, fracture present on the both tibiae and fibula bone at the level of upper 1/3 and lower 2/3.

8. Fracture present on the left index and middle fingers."

6. It is obvious that the fracture on the right

temporal lobe of the skull and the lacerated injury on

the right lobe of the brain are to be co-related to

each other. Likewise 100ml of blood was found in the

cranial cavity indicating the severity and intensity

of the attack. We also see that there are several

fractures on the dead body. It is also clear that the

incident had happened in two instalments, and two sets

of beatings had been administered to the deceased

prior to his death. To submit, therefore, that the

case would fall under Section 304(I) or 304(II) of the

IPC is not acceptable.

Crl.A. No. 889 of 2004 5

7. Likewise, we find that accused No. 2 was equally

involved with accused No. 1, her husband. It is quite

evident that she had been armed with a stick and she

too had used it on the person of the deceased with

telling effect. The High Court has observed that it

was difficult to decipher as to who had caused injury

No. 1 which was the fatal injury and for that reason

modified the conviction from Section 302 IPC

simplicitor to Section 302 read with Section 34 IPC

thereof. It is true that there is no charge under

Section 302 read with Section 34 but to our mind no

prejudice can be claimed by the two accused on this

account as they were fully aware of the circumstances

that were present against them. For the reasons

recorded above, we find no merit in the appeal. Dismissed.

8. The accused are on bail. Their bail bonds are

cancelled. They shall be taken into custody forthwith.

...... ..................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD] NEW DELHI JANUARY 13, 2011.