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Judgment
V.S. Sirpurkar, J.—The above two appellants, who were originally accused 1 and 2, have filed this appeal, challenging their conviction by
the trial Court. Originally there were ten accused, who were tried for the offence of entering into a criminal conspiracy to murder one Velusamy as
also one Bomma Naicker, father of Palanichamy (A-9). The accused were also charged for forming an unlawful assembly and committing the
murder of Velusamy in pursuance of the common object of the unlawful assembly. The second accused was additionally charged substantively for
attempting to cause the murder of one Chinnasamy (PW-2). Additionally, all the accused were also charged for rioting being armed with
dangerous weapons. Barring the two appellants, all the accused have been acquitted of all the other charges. The trial court has not accepted the
case of conspiracy, as alleged by the prosecution, and has chosen to convict the first appellant for the offence under Sec. 302 IPC simpliciter for
having caused murder of Velusamy and sentenced him to suffer life imprisonment. The second appellant has been convicted for the offence under
Sec. 307 IPC for having attempted to cause the murder of Chinnasamy (PW-2) and sentenced him to suffer rigorous imprisonment for seven
years.
The prosecution story is as under: Anandaraj (A-l) and the deceased Velusamy were neighbours. While Velusamy''s house was on the northern
side, the house of Anandaraj was on the southern side. For reaching the house of Velusamy, one had necessarily to go through the house of
Anandaraj and this was resented by Anandaraj. The prosecution contended that about one year prior to the incident, the nephew of Velusamy had
died and when the dead body was tried to the taken through the house of Anandaraj, that was objected to. There were complaints given and it
was only after police intervention that the body was allowed to be taken. It is an admitted position that, there is a civil dispute pending between
these two persons on account of the disputed pathway and, therefore, the village has been divided into two factions-one supporting the deceased
Velusamy and the other, the first accused Anandaraj.
The prosecution alleged that, on 28-7-1987. there was a clash between the two groups, for which reports were given by both parties to the
Vellianai Police Station, on whose jurisdiction comes the village Chinnamanickenpatti where the parties lived. The Prosecution further alleges that,
on 30-7-1987. at about 10.00 AM Chinnabommanaicker (PW-1). Chinnaraj (PW-4) Subbanaicker. Muthusamy and other persons were sitting
under a Vathanarayanan tree in the village. While they were so chit-chatting, accused 1 to 8 came there on four bi-cycles and passed them without
doing anything. After some time, the accused persons came back and at that time, the first accused accosted Velusamy as to why he had filed a
case against the accused and tried to assault Velusamy with aruval. At the same time, the second accused accosted Chinnasamy (PW-2) that he
was supporting Velusamy and therefore, he should not be spared and tried to assault him with aruval. According to prosecution while Velusamy
could run away, Chinnasamy (PW-2) could cover the distance of hardly about 10 to 15 feet when he was assaulted by the second accused with
aruval. Since he warded off the blow his hands were cut and the second accused also assaulted on his back and, as a result, Chinnasamy (PW-2)
fell down. Thereafter, all the eight accused gave a hot chase to Velusamy, who was running away and after coming upon a particular distance in the
field of Rajunaicker, Velusamy was surrounded by the accused and assaulted, firstly by Anandaraj (A-l), who dealt a blow with aruval on his neck,
as a result of which Velusamy fell down and started entreating the accused persons not to assault him. At that time Krishnan (A-2) also assaulted
Velusamy as a result of which his hands were cut. Thereafter, all the other accused persons started assaulting Velusamy as a result of which
Velusamy died on the spot. Velusamy received about seventeen injuries. Thereafter, the accused persons took to heels. Chinnasamy (PW-2). who
was lying injured near the Vathanarayanan tree, was then taken to Government Hospital at Karur in an autorickshaw and Chinnabommanicker
(PW-1) proceeded to the Vellianai Police Station to lodge a First Information Report.
The investigation agency sprang into action and the Investigating Officer (PW-14) reached the spot of occurrence. The necessary spot
Observation Mahazar. Inquest Mahazar, etc. were effected. The statements of the witnesses were also recorded, including the statement of
Chinnasamy (PW-2), which was recorded in the hospital. The corpse of Velusamy was sent for postmortem examination, which was done on the
next day by Dr. Shanmuganathan (PW-3). The accused persons surrendered later on before the court. Some of the accused persons have
discarded the aruvals, including the weapons used in the murderous attack.
It also turned out that there was also a conspiracy hatched by the group belonging to Anandaraj (A-l) to eliminate one Bommanaicker, who is none
else but the father of Palanichamy (A-9) as the ninth accused resented the way in which his father Bommanaicker had partitioned his property.
Bommanaicker was a fortune-teller and he had earlier partitioned his property between his two sons, including Anandaraj (A-l) and had retained
some lands for himself, perhaps for his daughter Kanagammal. The deceased Velusamy was on the side of Bommanaicker as also his daughter
Kanagammal and, probably, because of that it was conspired that both Velusamy as well as Bommanaicker should be murdered.
At the trial, however, the prosecution restricted itself to the murderous attack on Velusamy alone and the aspect of conspiracy to murder
Bommanicker was not seriously pursued by the prosecution perhaps because Bommanaicker himself, who was said to be the object of the
conspirators and examined as PW-5. turned hostile. The prosecution examined three eye-witnesses, they being Chinnabommanaicker (PW-1).
Chinnasamy (PW-2) and Chinnaraj (PW-4). The prosecution also relied on the medical evidence of Dr. Shanmughanathan (PW-3) as also on the
other circumstantial evidence of recovery of aruvals. However, the trial Court did not accept the prosecution case of conspiracy regarding the
murder of either Velusamy or Bommanaicker and acquitted all the accused of the offence under Sec.-120-B IPC. The trial court also held that the
prosecution was not able to prove any offence against accused 3 to 10. It was also held that it was the first accused alone, who had caused the
murder of Velusamy, while the second accused had attempted to murder Chinnasamy (PW-2). It accordingly convicted the first accused for the
offence under Sec.302 IPC substantively and the second accused for the offence under Sec.307 IPC. There being 10 appeal by the State or
revision by anybody against the impugned judgment, we have to consider the correctness of the judgment only in so far as the above mentioned
two appellants is concerned.
Learned counsel for the appellants firstly criticised the charge and the conviction of the first appellant for substantive offence under Sec.302
IPC. He pointed out that the charge as regards the offence under Sec.302 IPC was with the aid of Sec.149 IPC and as such the court could not
have convicted Anandaraj (A-l) for the offence under Sec.302 IPC substantively. It is urged by Mr. Sridharan, learned counsel for the appellants
that the Apex Court has taken a clear view that such course was impermissible in law.
Learned counsel relies on the celebrated judgment, reported in 1993 SCC (Cri.) 583 (Subran alias Subramanian and others v. State of Kerala).
Learned Counsel particularly invited our attention to paragraph 8 of this judgment and pointed out that the Apex Court had found therein that
initially six accused persons were chargesheeted for an offence under Sec.302 IPC read with Sec.149, while none of the accused persons
individually had been charged for the substantive offence of murder under Sec.302 IPC.
Learned counsel then relied on the observations in paragraph 11 to the following effect:
Since, appellant 1 Subran had not been charged for the substantive offence of murder under Sec.302 IPC, even the trial court, which tried the six
accused persons was not justified in recording a conviction against him for the substantive offence of murder punishable under Sec.302 IPC after
framing a charge against him for the offence under Sec.302 IPC read with Sec.149 cannot be convicted of the substantive offence under Sec.302
IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is
unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Sec.302 IPC.
appellant 1, Subran, was never called upon to meet a charge under Sec.302 IPC simpliciter and, therefore, in defending himself, he cannot be said
to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution
case during the cross-examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Sec.302 was
not permissible.
Relying very heavily on these observations, learned counsel contended that the position was almost similar and identical in the present case and as
such the first accused could not have been convicted for an offence under Sec.302 IPC substantively. It will, therefore, be necessary to see the
charge itself.
The original charge framed is in Tamil, which is as under:
The literal translation of this, as admitted by both the sides, would be some what like this:
On the same day, in the same transaction, in the village of Chinnamanaickenpatti, in the field of Rajunaicker, you accused persons 1 to 8 caused
the murder of Velusamy in furtherance of common intention by surrounding him, the first accused cut on the neck with aruval. When Velusamy fell
down, while the second accused cut on his right thigh with aruval accused 3 to 8 indiscriminately cut all over his body and caused the death of
Velusamy. Thus accused 1 to 8 are guilty of offence under Sec. 302 IPC read with Sec.149
(Emphasis ours)
It must be said, at the outset, that the trial court has been extremely casual, if not negligent, while framing the charge. This was clearly a case
where the charge sheet very clearly suggested the formation of an unlawful assembly with the common unlawful object. The trial court did not
bother to frame a charge for an offence under Sec.149 IPC independently. According to the Public Prosecutor, this was perhaps because there
was already a charge of criminal conspiracy under Sec.120-B IPC. This is also not correct because the incident under the Vathanarayanan tree
was and could have been viewed as an independent incident and a separate alternate charge under Sec.149 IPC itself could have been framed
against the accused persons giving them a clear idea of the common unlawful object of murdering Velusamy. Unfortunately, that was not done.
Further, though there was a clear material available on record of the individual acts, more particularly against the accused 1 and 2. no formal
separate charge substantively for an offence under Sec.302 IPC was framed. The learned trial Court also ignored Sec.34 IPC. though not
completely, as we would hereafter show. Thus, the framing of the charge was a classic example of casualness. carelessness as also negligence on
the part of the trial court Learned counsel very heavily relied upon all these circumstances and claims a verdict of acquittal on this ground for the
first accused from the offence under Sec.302 IPC According to him this was a confusing charge which had resulted in material prejudice. He
contended that the defence and more particularly the first accused could have concentrated in his cross examination against his individual act and
could have shown that he had not in fact done anything individually had the charge for the substantive offence under Sec.302 IPC been framed
against him. His other contention is that in the absence of the charge with the aid of Sec.34 IPC also, the accused persons, more particularly
accused 1 and 2. have been totally misled.
We have already expressed ourselves against the manner in which (he charge was framed. However a defect in charge is not always fatal to the
prosecution. If it is shown that the accused had complete notice of what the prosecution sought to prove against him and if there is no tangible
prejudice arising from the defect in the charge, the prosecution could still succeed. It is settled position of law that accused must have a total and
complete idea of the allegations of the prosecution which the prosecution seeks to prove against him and that is obtained always by framing the
specific charge against him. It is only for that reason that the charge has to provide the necessary particulars, not only regarding the place and time
of the alleged criminal acts, but also the precise allegations. If these material particulars are there in the charge and if the accused is given a specific
notice of the allegations which the prosecution seeks to prove against him. then, in the absence of any prejudice to the accused, defect in the
charge or even the limited absence thereof would be of no consequence. Precisely this is what has happened in this case.
From the charge, the accused had the precise idea of the allegations against them that the first accused had inflicted blow on the neck of
Velusamy with aruval and. when Velusamy fell down, the second accused inflicted blows on his right thigh with aruval. Therefore, the accused and
more particularly the first accused, have been given a precise idea of the individual act Not only this, it has also been suggested that the accused
had done this in furtherance of the ""common intention"" (in contradistinction to ""common object""). Once, therefore, there is evidence of the prior
meeting of mind, notice of which a charge was given under Sec.120-B IPC also, and once there was a clear notice, of the individual act. the
accused could be convicted for the individual act. if that individual act itself is sufficient to convict him for the substantive offence. We shall consider
the complicity. of the first accused at proper place when we appreciate the evidence of the eye-witnesses. but. for the present, it is sufficient to
hold that there has been no prejudice to the first accused and the first accused has been given a total idea regarding his own complicity.
The observations in paragraph 11. of the judgment relied upon by Mr. Sridharan. are being used out of context Again, since the first accused
was given a clear cut idea of his individual act and called upon to meet the same, the observations would not apply in the totality. There is also an
observation in the same paragraph to the following effect:
That apart, according to the medical evidence, none of the injuries allegedly caused by this appellant was either individually or taken collectively
with the other injuries caused by him. Sufficient in the ordinary course of nature to cause death of Suku. Medical evidence is clear on this aspect of
the case and it is not possible to say that the injuries inflicted by the first appellant with the chopper were inflicted with the intention to cause death
of Suku. The intention to cause the murder of Suku the deceased, could not be attributed to him and the medical evidence also shows that the
injuries attributed to him were not sufficient in the ordinary course of nature to cause death of the deceased. The conviction of appellant 1, Subran.
for the substantive offence u/s 302 Indian Penal Code is therefore unwarranted and cannot he sustained
These observations, however, do not at all apply to the case of the first accused. On the other hand, as we would show from the medical
evidence, there can be a definite finding regarding the first accused alone having caused the neck-injury on the deceased and the neck-injury by
itself being fatal, the evidence of the Doctor (PW-3) and more particularly his cross-examination is sufficient in this behalf. Under the
circumstances, the reliance by the defence on the aforementioned Supreme Court decision is totally uncalled for. This apart, from the observations
in paragraph 13. it will be seen that Subran. accused therein, was convicted for the individual act and ultimately found guilty for the offence under
Sec.304 Part II IPC. The Apex Court had noted that even for those offences Subran was not charged substantively. However, considering his
individual complicity. the Apex Court has chosen to convict him for the minor offence under Sec.304 Part II. We do not think that any prejudice
has been caused to the first accused on account of the defect in charge. The contention raised by the learned counsel in that behalf has to be
rejected.
The learned counsel then criticised the evidence, particularly the eye-witnesses, and contended that the said evidence were full of intrinsic
contradictions and were of extremely suspicious nature. He also pointed out that number of important witnesses, who had been named in FIR as
also in the deposition of the eye-witnesses were not bothered to be examined by the prosecution and thereby, the prosecution has suppressed that
evidence from the court. We would therefore examine the evidence of the eye-witnesses on whom heavy reliance has been placed by the
prosecution and whose evidence is also relied upon by the learned Sessions Judge to convict the accused.
Prosecution in all examined three witnesses, who claimed to be the eye-witnesses. They are PW-1 Chinnabomma Naicker. PW-2
Chinnasamy and PW-4 Chinnaraj. PW-1 is the author of the FIR. which has been given almost within an hour or two of the gory incident. He
states firstly about the dispute between Velusamy and the first accused Anandaraj over the pathway, which was claimed by Velusamy much to the
charging of the accused. He referred to the clash between the two groups, which took place two days prior to the main incident. He has also
referred to the two factions in the village - one supporting Velusamy and the other supporting the first accused. As regards the main incident on
30.7.1987. he suggested that about 10.00 a.m. he. along with Chinnaraj (PW-4). Subbanaicker. Muthusamy was sitting under a vathanarayanan
tree and chit-chatting. He claims that at that time. Chinnasamy and Velusamy also came and they also sat. Chinnasamy is none other than but PW-
He further claimed that accused 1 to 8 came on four bi-cycles and crossed them and turned back. According to him. Anandaraj accosted
Velusamy as to why he had filed a case against him and so saying, he tried to inflict an injury on Velusamy with aruval. However. Velusamy ran
towards east. At the same time, the second accused also said to PW-2 Chinnasamy that he was supporting Velusamy and so saying, he inflicted a
blow with aruval. which directed towards the neck, but it was warded off by Chinnasamy with his left hand, causing a cut injury on the left hand. It
is pointed out that the second accused again inflicted a blow with aruval. which fell on the back of Chinnasamy. on receiving which he fainted and
fell down in a ditch nearby the Vathanarayanan tree. He describes that accused 1 to 8 chased Velusamy. who ran towards east and thereafter
towards south, but when Velusamy reached upto the field of Rajunaicker. the chasers stopped him in that field and he was surrounded, wherein the
first accused inflicted a blow on the neck of Velusamy with arm al. It is due to that blow on his neck. Velusamy fell down and beseeched the other
accused not to assault and raised his hands. However, the second accused, who had reached there by that time, also dealt aruval blows on his
hand and thigh. So also the other six accused started dealing the blows on Velusamy with weapons which they were carrying. He says he himself.
Chinnaraj (PW-4). Muthusamy and Subbanaicker ran behind the accused. The accused then ran away with the weapons They found that
Velusamy had died on the spot He then proceeded to Velliannai Police Station forgiving report. He also spoke about Chinnasamy (PW- 2) being
sent to Hospital and further stated that he made a statement before the constable, which was recorded and treated as FIR.
Thus, the evidence of PW-1 was heavily criticised by the learned counsel. It is pointed out that in his cross-examination. PW-1 had specifically
admitted that he had not seen whether after indicting the cut on the neck of Velusamy. the first accused had again cut him The omissions in the
cross-examination regarding the complicity of the second accused were also brought on the record in the cross-examination and he was also made
to admit that he had not seen as to whether the other accused actually indicted the cut injuries and on which part of the body they had inflicted
those injuries, learned counsel also criticised the evidence of PW-1 that this witness was a relative of Velusamy and he is. therefore, likely to be
interested against the accused, it is also pointed out that the first and second accused had given evidence against Velusamy in the criminal case
where Subbanaicker (PW-1) and other were arrayed as accused along with Velusamy.
There can be no doubt that the village was faction ridden and that the deceased Velusamy and the witnesses like-PW 1 and PW-2
represented one group while, the accused person�s belong to another group However, that by itself cannot be sufficient to write off the
evidence, much less the evidence of the eye-witness like PW-1. on that sole ground. It is common experience that in the faction ridden society of
the village, witnesses lend to exaggerate and also to involve number of other persons belonging to the rival factions in the crime However, in so far
as the present accused persons are concerned, that criticism will be of no consequence as all the others, whose complicity could not be explained
by the said witness, have already been acquitted while, only the present two accused persons are convicted. In spite of the lengthy cross-
examination, the defence has not been able to shake the main part of the evidence of this witness that while this witness was sitting and chitchatting
with Velusamy at about 10.00 a.m.. the accused persons came there and started the light, which ultimately ended in the accused persons giving a
hot chase to Velusamy and assulling him fatally The witness gets the biggest support from the First Information Report which was given without any
possible loss of time. In this First Information Report also the role of the first accused has been specifically spoken to that he gave a forcible cut on
the backside of the neck of Velusamy. Not only this, but the medical evidence also supports the version of the witness that Velusamy had a fatal
injury on his neck. There would be no reason for Chinna Bommnaicker (PW-1) to imagine a story barely within one and"" a half hours of the
incident and. on that basis, falsely implicated the accused persons. The evidence of this witness is natural and sounds credible The evidence is not
at all shaken in so far as it pertains to the commencement of the incident near the Vathanarayanan tree under which the deceased and witnesses
were sitting and chitchatting. The further story that the accused person gave a hot chase to Velusamy and ultimately surrounded him in the
Rajunaicker''s field and assaulted him fatally also has not at all shaken It was tried to be argued that the prosecution has not chosen to examine
Subba Naicker and Muthusamy who. according to this witness, were also present under the Vathanarayanan tree along with Velusamy. However,
that non-examination by itself would not efface away the effect of the evidence of these witnesses, viz.. Chinnasamy (PW-2) and Chinnaaj) (PW-
4). It is true that due to the enmity this witness is likely to be interested against the accused persons. However, we find that the learned Sessions
Judge has exercised the due caution while appreciating the evidence of this witness. We have also exercised the same caution while appreciating
his evidence. The non-examination of Subba Naicker and Muthusamy by itself would be of no consequences as the prosecution cannot be asked
to unnecessarily repeat the version given by some other witnesses In this case, all the three witnesses have spoken to about the incident which
started under the vathanarayanan tree and have graphically described the later proceedings. If the prosecution unfolds the whole story then it is not
necessary that it must examine each and every witness merely because the investigating officer has chosen to record the statements of such
witnesses and has chosen further to cite them as witnesses in the chargesheet. We find that the evidence of this witness is rightly believed by the
learned Sessions Judge as against the present appelants. We desist from making any comment in respect of the other accused persons and the
evidence of this witness against them as we find that, for reacons known to it, the State has not chosen to file an appeal against the acquittal of the
other accused persons.
PW-2 Chinnasamy also more or less repeated the version given by PW-1. It was tried to be suggested that his evidence would be of no
consequence as against the first accused that he had not seen the actual attack, which was made by the first accused on Velusamy. However, he
has undoubtedly spoken about the persence of the first accused at the relevant time. He has also spoken about the hot chase having been given by
all the eight accused to Velusamy which would also include the first accused. To that limited extent, his evidence corroborated the evidence of
PW-1. This witness had spoken specifically about the second accused having assaulted him and he having suffured injuries due to that attack.
There is sufficient evidence, in the shape of medical evidence, to prove those injuries. Again nothing has come out in the cross-examination to
doubt his version that he was assaulted by the second accused. He being an injured witness, would normally have no reason to ignore the real
assailant and implicate somebody else falsely. A totally different story was put to him in the cross-examination by which it was tried to be
suggested that Velusamy scolded the first accused on account of something which the first accused had uttered regarding Velusamy''s connection
with Kannammal. It is further suggested that at that time Velusamy beat the first accused with chappal and at that time the first accused cut
Velusamy with aruval and caused his death. According to the defence, this had happened about one hour prior to the assault on him by the
accused persons. It is tried to suggest further that at that time PW.5 was also present, it is also suggested that he, Subba Naicker and Chinnaraj
went near the place of occurrence at 10 O''Clock in search of the second accused and. at that time, the second accused came there and he was
wrongfully restrained and at the time when he was tried to be assaulted, the second accused assaulted the witness. It is not known as to why such
a fantastic story has been developed which has the effect of giving the admissions that it was the first accused who had caused the death of
Velusamy and it was the second accused who has assaulted PW-2. Perhaps, the defence tried to raise on almost impossible defence of private
defence in case of the second accused and tried to suggest that the first accused was not guilty of an offence under Second 302 I. P.C. but was
merely guilty of the culpable homicide not amounting to murder. Such self-effacing cross-examination, according to us, has not only demolished the
effect of the cross examination of the other two witnesses, but has also lent support to the prosecution theory that the first accused was the sole
author of the fatal injury of Velusamy and that the second accused had assaulted and injured Chinnasamy (PW-2). It was perhaps a miserable
attempt to save all the other accused excepting the first and second accused, which, very surprisingly, also proved to be successful. Be that as it
may, the facts remain that the evidence of this witness has remained unshaken and was, therefore, rightly relied upon by the learned Sessions
Judge.
Almost similar is the story of the evidence of Chinnaraj (PW-4), who has graphically described the first part of the incident regarding the
meeting under the vathanarayanan tree and the assault on Velusamy and PW-2. He identically stated about the hot chase given by the accused
persons to Velusamy and the assault by the first accused with aruval on the backside of the neck of Velusamy - Some minor omissions were tried
to be taken advantage of by the learned counsel, which do not pertain to the substantial part of the evidence. Unfortunately, even in the cross-
examination, the witness was given an opportunity to explain that the accused took out the aruvals from inside their shirts. The omissions regarding
the complicity of accused persons 3 to 8 is prominent to the effect that the witnesses had not stated they were having aruvals and that they were
chasing Velusamy. The accused persons 3 to 8. had, therefore, been given the benefit. From this, learned counsel argues that his evidence should
be totally rejected. We do not think that such an extreme view can be taken in respect of the evidence of this witness merely because he had not
stated something about the complicity of accused persons 3 to 8. It cannot, however, be forgotten that the omission is only regarding the hot chase
given by accused persons 3 to 8 to Velusamy. His version regarding their presence at lire spot has practically remained unchallenged. Strangely
enough, he has reiterated in the cross-examination that he had seen the first accused cutting on the backside of the neck of Velusamy and that
thereafter he was not able to see as to whether the first accused had dealt another blow. This evidence would lend credence as it would show that
the witness is not in the habit of exaggerating his version True it is, that this witness also would be said to be a partisan witness in the sense that he
was arrayed as 8th accused in the Criminal case where first and second accused were, the witnesses, but, even, then, it cannot be said that the
evidence is tainted or unworthy of credit. Taking the overall view of the evidence of this witness it not only appears to be credible by itself, but also
supports the evidence of the other two witnesses.
If the evidence of these three witnesses is accepted, as has been done by the learned Sessions Judge, then there would be no question of
considering any other evidence. These three eye-witnesses by themselves have specifically proved the part played by the first accused and the
second accused as against Velusamy and Chinnasamy (PW- 2) respectively. It is amply proved that the deceased Velusamy was given a chase
and the first accused dealt a aruval-blow on the back side of his neck, causing his death while, the second accused caused serious cut injuries on
PW-2 with the sharp weapon.
Dr.R. Shanmuganathan has been examined by the prosecution, who conducted the post-mortem over the body of Velusamy. He has pointed
out that Valusamy had suffered in all seventeen injuries out of which sixteen were incised wounds. There can be no doubt from these injuries that
Velusamy was fatally assaulted by the assailants. The assailants have practically made mincemeat of Velusamy. The doctor has opined, in the
examination-in-chief that the deceased would appeared to have died of shock and haemorrage due to cut injury of the major vessels and multiple
injuries. The learned Additional public prosecutor, however invited our attention to the cross-examination wherein the Doctor had stated that all the
artery veins in the neck were cut. Out of seventeen injuries, it can be seen that the only injury on the neck is injury No. 1., which is described as
under:
An incised wound of 10 cm X 5 cm X vertebral deep over the nape of the neck.
The Doctor has specifically opined that the death must have been instantaneous after the neck-injury was caused. The Doctor has described the
injury No. 1, to be necessarily fatal. It was tried to be suggested by the learned counsel that the deceased had died of the multiple injuries and the
first accused was not charged with substantive offence under the circumstances. It could not be said that the death was a result of the first injury
alone, therefore, the first accused could not be booked for an offence u/s 302 I.P.C. We do not agree. The first injury has been stated to be a fatal
injury. If that injury by itself was sufficient and if that injury was inflicted by the first accused., it will have to be held that the first accused intended
to cause an injury which was sufficient in the ordinary course of nature to cause death. We have already found that it has been amply proved that it
was the first accused alone who had caused the injury on the backside neck of Velusamy. Under such circumstances, we have no hesitation in
holding that the injury fell under ""Thirdly"" of Section 300 I.P.C.
There can be little doubt that the first accused also intended to inflict the injury on the neck. It is true that a hot chase was given to Velusamy.
However, it has amply come, in the evidence that when Velusamy was stopped in the filed of Rajnaicker, the first accused commenced the attack
first aiming the aruval-blow on the backside of the neck of Velusamy. Therefore, all the ingredients for that injury necessary for its fitting in the term
Thirdly"" of section 300 I.P.C. are present which have been spelt out by the Apex Court in the momentous decision of Virsa Singh Vs. The State
of Punjab, The first accused being the sole author of that injury and all the subject and objective aspects regarding that injury having been proved,
we are of the firm opinion that the conviction of the first accused for the offence u/s 302 I.P.C. ordered by the trial court is correct.
Same thing can be said regarding the role of the second accused and his assault on PW-2. There is nothing in the evidence of PW-2 which
could be said to be doubtful. After all. his injuries speak for themselves. The injuries have been deposed to by Dr. Shanmuganathan, who
examined him on 30.7.1987. In all four injuries were found on the person of this witness and the first injury is described as an incised would 12 cm
x 5 cm bone deep in the left forearm. The Doctor has found that both the bones were clinically found to be fractured. The two other injuries are the
incised wounds on the left scapular region. Both the wounds are 5 cm x 2 cm x bone deep. He also issued a certificate of injury, which suggested
that the first injury had caused fracture. Much was blamed by the learned defence counsel of the fact that the X-ray reports were not put before
the court by the prosecution. It is really surprising that the X-ray reports should not have been put before the court, but that by itself would not be
of any help to him as the fracture is clinically established, which is clear from the medical certificate. Be that as it may. the Doctor himself had
opined on the basis of X-ray reports; which is clear from his cross-examination and there is nothing to doubt the version of Dr. Shanmuganathan,
who is examined as PW-3.
In a decision in Hori Lal and Another Vs. State of U.P., while considering as what the fracture of bone means, the Supreme Court observed
that it is not necessary that the bone should be cut through and through or that the crack must extend from the outer to the inner surface or that
there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fissure, in
it. it would amount to a fracture within the meaning of Clauses 7 of Section 320. We have no doubt that the fracture in this case, is established and.
therefore, it is clear that the second accused had caused grievous wound along with two other incised wounds and multiple abrasions on PW-2.
Learned counsel, however, pointed out that merely because a grievous wound was caused, it cannot be said that this accused had committed an
offence covered u/s 307 I.P.C. of attempting the murder of PW-2. He points out that the medical evidence falls short of it and it cannot be
forgotten that the second accused stopped after inflicting the four injuries on the witness and did not proceed to inflict an injury which would
endanger the life of the injured. Indeed, the Doctor has not opined in his evidence that the injuries caused to the witness could endanger, his life.
Nor has the Doctor spoken regarding the nature of the injuries or the likelihood of such injuries resulting in death or even endangering life of the
witness. Under such circumstances, the criticism of the learned defence counsel that the offences fall short of one u/s 307 I.P.C. appears to be well
justified. In fact, very little effort seems to be there on the part of the trial court to arrive at a finding that the offence amounted to one u/s 307
I.P.C. of attempting to commit murder. The finding is abrupt and appears to have been given practically without any discussion on the subject. It
was because of that, we were required to go into the details of the nature of the injuries. The offence, at the most, can be covered u/s 326 I.P.C.
of causing a grievous wound with a sharp and deeply weapon like aruval. There can be no doubt that the injuries in this case were caused by sharp
weapon. There can also be no dispute that one of the injuries was a grievous wound. In that view we are of the clear opinion that the conviction of
the second accused for an offence u/s 307 I.P.C. cannot be sustained and it has to be modified into the conviction for an offence u/s 326 I.P.C. as
it is amply proved that he was the sole author of the injuries inflicted on the person of PW-2.
As regards the general complicity of the second accused herein, the learned counsel tried to draw some support from the non-identification of
the bi-cycle which, kept on line there. Our attention was tried to be invited at the evidence of Murugesan (PW-9) which witness has been
examined by the prosecution to suggest that the second accused had hired a bi-cycle and that bi-cycle has not still been returned to the shop-
owner. The learned counsel criticised that the said bi-cycles were not identified by the investigating agency independently. He also criticised that
the said bicycle was also not got identified by the above mentioned witness. From this the learned defence counsel tries to draw some support that
the bi-cycle cannot be involved at all. If the evidence of the eye-witnesses, who were present at the spot, is accepted then, the question of the
identification of bi-cycles or whether the second accused had hired a particular bi- cycle or not would be relegated to the background. We have
already indicated that the evidence of the eye-witnesses is credit worthy and acceptable.
As regards the appreciation of evidence, the learned counsel relied on a few reported decisions. Learned defence counsel relied on the
decision in Sukhdev Singh Vs. State of Punjab, to draw support that as given in this case, the deceased was surrounded by the accused persons as
such, it was not possible to fix as to which accused had given which below and caused fatal injuries. The learned counsel wanted to use this case in
so far as the first accused is concerned and more particularly to invite a finding that he could not be convicted for an offence u/s 302 I.P.C. but for
the offence u/s 304 Part II. As already indicated, the essential difference is that in the present situation there is total and complete evidence to
suggest that it is first accused alone who had caused the fatal injury on the backside neck of Velusamy.
The decisions in Alil Mollah and Another v. State of West Bengal (1996 SCC Cri.1028); Mohd. Iqbal M. Shaikh v. State of Maharashtra
(1998 SCC Cri.1064); Lakshman Prasad v. State of Bihar (1981 SCC Crl.642) and Jagadishprasad v. State of M.P. (1981 SCC Cri.160) are
the cases of about the principle of appreciation of evidence wherein the Supreme Court has predominantly considered the duty of the court while
appreciating the evidence of the solitary witness The cases are clearly not applicable as it cannot be said that this is a case involving only a single
witness. There is not only plurality of witnesses in this case, but it is found that the evidence of the witnesses is acceptable also.
The decision in Jamuna Chaudry v. State of Bihar reported in 1974 (3) SCC 744 is also on the question of appreciation of evidence and turns
on the facts of that particular case and is, therefore, of no assistance to us.
One more decision in Lakhan Mahto and Others Vs. State of Bihar, also relied upon in support of the argument that the accused persons
could not be convicted for the substantive offence. We have already considered the subsequent decision in Subran''s case ( 1993 SCC Cri.503).
In that view this judgment is also no assistance to us.
On the basis of the above discussion, we have come to the conclusion that the trial court has committed no error in convicting the first accused
of the offence u/s 302 I.P.C. and awarding him the sentence of life imprisonment, we confirm that finding and sentence. As regards the second
accused, we acquit him of the offence u/s 307 I.P.C. and instead convict him for an offence u/s 326 I.P.C. In that, we set aside the sentence of
seven years rigorous imprisonment of the second accused and modify it by altering the sentence of five years, rigorous imprisonment for the offence
u/s 326 I.P.C. With these modifications we dispose of the criminal appeal.