Aiyappan Kuttan vs The State

Govinda Pillai, J.—Accused 1 and 2 are the appellants in criminal appeals 30 and 31 of 1954. The State has filed Criminal Appeal No. 52 of 1954 for entering a conviction against the 2nd accused under S. 307, I.P.C.s for he had been convicted by the Court below for the offence under S. 301 read with S. 114, I.P.C. P.W. 1, the complainant is the elder brother of accused 2 and the brother-in-law of accused 1. The prosecution was that with the object of murdering P.W. 1, accused 1, with the aid of accused 2, stabbed him.

Accused 2 had married a Christian girl against his father''s wish and so he was disinherited by his father in the settlement deed Ex. M executed by him. On account of this, accused 2 had a grudge against P.W. 1. Accused 1 had also a grievance against P.W. 1 because of some dispute regarding the identity of the property left to his wife under Ex. M. Accused 1 and 2 used to threaten P.W. 1 and this forced the latter to file a complaint against both of them.

A case M.C. 26 of 1951 filed under S. 103, Cr. P.C. was pending against the accused on the date of the occurrence. On the morning of 24-9-1951, P.W. 1 and his brother who is P.W. 13 went to work in their field. At about 7-30 A.M. P.W. 1 came over to the adjoining road leaving his brother P.W. 13 in the field. When he passed by the tea-shop of P.W. 12, the two accused who were sitting on a bench in front of the shop abused him in vulgar language. P.W. 1 retorted by saying that on account of mischief-mongers like the accused, it was becoming difficult for people to go about.

P.W. 1 then proceeded towards the north of the road. Both the accused followed him calling; him to stop and overtook him at a distance of about 80 feet from the tea-shop. P.W. 1 stopped to a side of the road at which time both his hands were caught hold of by accused 2. Accused 1 then stabbed P.W. 1 with a knife. P.W. 1 ran to the other side of the road pursued by accused 1 who inflicted on him more stabs. When P.W. 1 fell down accused 1 sat on his body and repeated the stabs.

Both the accused then proceeded towards P.W. 12''s shop saying that P.W. 1 was finished. But seeing P.W. 1 turning on his side they came back and gave him a few kicks. After some time P.W. 13 got information that his brother was lying wounded on the road. He hurried to-the place and removed P.W. 1 to the Kattakkada Police Station, in a car.

The information given by P.W. 13 was noted by the Police in the General Diary Ex. O. P.W. 1 was then not in a position to give any statement and so he was sent to the General Hospital, Trivendrum for treatment. P.W. 16 the Circle Inspector of Police went to the Hospital and recorded Ex. A statement from P.W. 1. A case was registered against accused 1 and 2 and investigation started. Accused 1 appeared at the police station on the day of occurrence itself and was arrested there.

Accused 2 who was absconding surrendered before the Magistrate''s Court after the police had filed the charge-sheet. After enquiry the Magistrate committed both the accused before the Sessions Court to stand their trial for the offence under S. 307 as regards accused 1 and for the offence under S. 307 read with S. 114, I.P.C. as against accused 2.

The Court below found that P.W. 1 had sustained the injuries as alleged by the prosecution, that the injuries were caused by accused 1 stabbing P.W. 1 with a knife, that accused 1 did so with the intention of murdering P.W. 1, that accused 2 had abetted accused 1 in the commission of the crime, and that accused 1 was therefore liable to be convicted under S. 307 and accused 2 under S. 307 read with S. 114, I.P.C. Accused 1 was sentenced to undergo rigorous imprisonment for seven years and accused 2 to undergo rigorous imprisonment for two years.

Exhibit F is the wound certificate issued by the medical officer one Dr. Bhaskara Menon, for the injuries found on P.W. 1. This medical officer left for England for higher studies and so his signature in the wound certificate was proved by P.W. 3, another medical officer attached to the same institution. P.W. 8, a surgeon attached to the General Hospital was examined with reference to the injuries noted in Ex. F. Exhibit D mentioned eight injuries on the person of P.W. 1.

Two of them were linear abrasions, and the rest were incised wounds. P.W. 8 stated that these injuries could be caused by stabbing with a knife. According to him, the fifth injury noted in Ex. F which was an incised wound 1" x, 1/2" x 2" on the right side of the front of the neck in a vertical direction, communicating with the pleural cavity, was a serious wound which was likely to prove fatal.

P.W. 1 was treated as an in-patient in the hospital till 21-10-1951, when he was discharged cured, as seen from Ex. G discharge certificate. He had been admitted in the hospital at 12 noon on 24-9-1951 when he had all the injuries noted in Ext. F. It was therefore evident that P.W. 1 sustained the injuries on 24-9-1951 as stated by the prosecution.

4-6. The next question is as to how he sustained those injuries. (His Lordship then referred to the evidence and proceeded as follows):

The lower Court had relied on these witnesses in respect of the part played by accused 1 and 2. That Court did not however believe that the stabs were Inflicted by accused 1 at the instance of accused 2, though accused 2 aided accused 1 by holding back both the hands of P.W. 1 to facilitate the stabbing by accused 1. It is held that accused 2 held together both the hands of P.W. 1. When accused 1 inflicted on P.W. 1 the first four stabs mentioned in Ex. F.

Accused 1 had inflicted all the six incised injuries noted in Ex. F. Abrasions mentioned as numbers 7 and 8 could have been caused by P.W. 1 falling down on the road. The first injury was an incised wound above the left shoulder blade, in an oblique direction. The second injury was above the outer half of left collar bone in a horizontal direction. The third and the fourth injuries were in front of the neck and the sixth injury was above the middle of the right collar bone.

All the stabs were therefore inflicted on vital parts of the body and injury No. 5 had even penetrated into the pleural cavity. The intention of the assailant is to be gathered from the nature of the weapon used and the parts of the body where the injuries are inflicted. It could safely be inferred from the circumstances mentioned above that accused 1 had intended to cause the death of P.W. 1 by inflicting these injuries on him.

He is therefore liable for the offence under B. 307, I.P.C. for which we think that a sentence of rigorous imprisonment for five years would be sufficient.

As regards accused 2, what he did was to hold back both the hands of P.W. 1. There is no case that there was any conspiracy between accused 1 and 2 to do away with P.W. 1. Accused 2 could lift Have committed the offence under S. 114, I.P.C. Section 114 is only brought into operation when circumstances amounting to abetment of a particular crime have been moved and when the presence of the accused at the commission of that crime is proved in addition.

This section would apply to a case where a person abets the commission of an offence, some time before it takes palace and happens to be present at the time when the offence is committed. It is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission. When a person who abets the commission of an offence is present and help in the commission of the offence, he is guilty of the offence and not merely of abetment except in a few cases like rape or bigamy. There is absolutely no suggestion in this case that the abetment had been completed before the commission of the offence. There was no case that accused 1 and 2 conspired together and waited on the bench in P.W. 12''s shop to assault P.W. 1. Thus S. 114, I.P.C. cannot be invoked to aggravate the gravity of the offence said to have been committed by accused 1. No doubt, accused 2 had by his act facilitated the inflicting of the injuries on P.W. 1 by accused 1 Explanation 2 to S. 107, I.P.C. provides that whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, aids the doing of that act. Viewing accused 2''s act with reference to this explanation, he must be deemed to have abetted the commission of the act. But it is proved in the case that while accused 2 was holding back the hands of P.W. 1 the first four injuries mentioned in Ex. F were alone inflicted by accused 1. Those were not serious injuries and so accused 2 could be made liable only for the first injuries in Ex. P inflicted by accused 1. The offence would come under S. 109, I.P.C., which states thus:

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

He could therefore be convicted only for the offence under S. 324, read with S. 109. We therefore change the conviction entered by the lower court and convict accused 2 for the Offence as mentioned above. His sentence is therefore reduced to rigorous imprisonment for one year. There is no merit in the appeal filed by the State and so that is dismissed.

In the result we confirm the conviction entered against accused 1 under S. 307, I.P.C. and sentence him to rigorous imprisonment for five years. The conviction under S. 307 read with S. 114, I.P.C. entered against accused 2 by the lower court is converted to one under S. 324 read with S. 109, I.P.C., and he is sentenced to rigorous imprisonment for one year. Thus Criminal Appeals Nos. 30 and 31 are partly allowed as Indicated above. Criminal appeal No. 52 of 1954 filed toy the State is dismissed. The appellants will be taken to custody forthwith and sent to the Central Prison to serve out the remaining portion of the sentence.