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Judgment
The appellants herein, who were ranked as accused No.15 and 16 respectively in S.C.No.49 of 1994 on the file of the Sessions Judge,
Cuddalore, have brought forth this appeal, challenging the judgment of the learned Sessions Judge, under which they were found guilty under S.
302 of Indian Penal Code and sentenced to life imprisonment. By the said judgment, the trial court acquitted the appellants of the other charges
and also A-1 to A14 of the respective charges.
The appellants herein, who were shown as A-15 and A-16 respectively in the said case, stood charged for the offences under Ss 148 and 302
of Indian Penal Code alleging that on 13.10.1990 at 5.00 P.M. at Kilakundalapadi Village near the house of one Ramarajar and Nallathambi along
with A-1 to A-14 in the case formed themselves into an unlawful assembly and committed the murder of the deceased Jayabal, due to prior enmity
on the score of raising the bamboo trees on the ridges of the land of Meganathan.
The case of the prosecution can shortly be narrated as follows:
P.Ws.1 and 2, the brothers of the deceased Jayabal, P.W.3 to 5, P.W.6, the father of the deceased, P.W.9 to 13 and P.W.14 the wife of the
deceased are the residents of Keelakundalavadi Village. While A-15 is the son of A-1, A-2 and A-11 are the brothers, and others are related to
each other. When P.W.1 and his brothers questioned A-1 about the planting of bamboo plant near the ridge of Meganathan, the brother of P.W.1,
A-1 replied that he would remove the same after three months. Since A-1 did not do so, a panchayat was held, wherein A-1 undertook to remove
the bamboo plant within ten days. But, A-1 failed to remove the plant. P.W.1 went to Chidambaram on 12.10.90 at about 6.00 P.M. While
P.W.1 was going, A-2, A-5, A-6 and A-16 were damaging the house of Perumal, the brother of P.W.4 and abusing in filthy language. P.W.4
gave a complaint on 18.10.90 at 8.00 A.M. in that regard. While P.Ws.2, 3, 4 and 9 were talking in the house of Ramarajan on 13.10.1990 at
about 4.30 P.M., A-2 came there. When A-2 was enquired by P.Ws.2 and 4 about the damages caused to the house of Perumal, he beat P.W.4
on his cheek. A-2 called the other accused. All the accused armed with sticks and stones came there. While A-15 was armed with M.O.1
crowbar, A-16 was armed with stick. P.W.1, who returned to his house on 13.10.1990 at about 5.00 P.M., heard the noise near the house of
Ramarajan, and he went there. P.Ws.5, 6, 11, 12 and 13 who also heard some noise near Ramarajan''s house, went there. At the time of P.W.1
trying to leave that place, A-2 hit him on his left flank. P.W.1 ran towards Ekali Nallathambi''s house. A-11 hit P.W.2 on his left chest with stick,
while A-13 hit P.W.3 with stone on his right knee. A-1 hit P.W.4 on his right knee with stone. A-6 hit P.W.5 with stone on his right eyebrow. A-
10 hit P.W.9 with stone on his head, and he fell down. A-3 hit P.W.11 with stone on his stomach, and he was unconscious. A-9 attacked P.W.6
with casuarina stick on his back. A-15 and A-16, who were armed with crowbar and stick respectively, went near the house of Ekali Nallathambi,
and they were followed by P.W.1. On seeing his brother Jayabal, who was returning from the ration shop, P.W.1 shouted at him to leave that
place. P.W.6 mother of the deceased also saw her son coming from the ration shop. When Jayabal tried to escape, A-15 beat him with crowbar
on his backside of the head, and he fell down. Jayabal was also beat by A-16 with stick on his back. A-16 also strangulated Jayabal by stating
you die!"". At that time P.Ws.12 and 13 shouted that Jayabal was attacked by A-15 and A-16, which was heard by P.W.5 and P.W.14, the wife
of the deceased. Jayabal was found lying with injuries on his head and flank in front of the house of Ekali Nallathambi, which was seen by P.W.14.
A-15 and A-16 left the place with weapons. P.Ws.1, 3 and 4 and others lifted Jayabal and put him in a cot. Since all the accused surrounded it,
they could not take Jayabal from that place. Only after Jayabal died, the accused left that place. P.W.1 went to Annamalainagar Police Station at
about 9.00 P.M. and gave Ex.P1 statement to P.W.17 Sub Inspector of Police, narrating about the occurrence. On the basis of Ex.P1 complaint,
P.W.17 registered a case under Ss 147, 148, 341, 336, 323 and 302 of I.P.C. in Crime No.395/90 and prepared Ex.P17 printed First
Information Report. He sent Exs.P1 and P17 to the concerned Judicial Magistrate. P.Ws.1 to 6, 10 and 11, who sustained injuries, were sent to
hospital by P.W.17 for treatment. P.W.7 Dr. Balachandran, attached to Government Kamaraj Hospital, Chidambaram, gave treatment to P.Ws.1
to 6 and the other injured viz. Sundarambal, Rajakumari and Ramamirtham. Exs.P2 to P10 are the wound certificates issued by P.W.7 in respect
of the said injured.
On receipt of the first information report on 13.10.1990 at 10.00 P.M., P.W.18 Inspector of Police took up the investigation and went to
Keelakondalpadi Village. He visited the scene near the house of Ramarajan at about 11.30 P.M. and prepared Ex.P12 Observation Mahazar and
Ex.P18 rough sketch. At 12.30 A.M., he recovered M.Os.2 and 4 series casurina sticks and M.O.5 series stones under Ex.P14 Mahazar in the
presence of the witnesses. He visited the scene near Ekali Nallathambi''s house at 1.30 A.M. and prepared Ex.P13 Observation Mahazar and
Ex.P19 rough sketch. The Investigation Officer conducted inquest on the body of the deceased between 3.00 A.M. and 6.00 A.M. and prepared
Ex.P20 inquest report. P.W.18 sent the body of the deceased for autopsy along with a requisition. On receipt of the said requisition, P.W.8 Dr.
Umakanthan, attached to Government Kamaraj Hospital, Chidambaram, conducted autopsy on the dead body of Jayabal. The doctor noticed the
following injuries.
1) A lacerated wound about 6 x 4 x 1 cm in nature behind neck which is bone depth.
2) (a) A contusion mark about 10 cm depth and 2 cm width on the right part of the back which extending from right shoulder to the lower
abdomen.
(b) Another contusion 4 x 2 x 1 cm on the same side.
(c) 8 x 1 cm lateral to the injury 2 (a).
3) A contusion about 10 x 5 x 2 cm on the back of the neck.
4) 4 x 2 x 1 cm lacerated wound middle of the skull.
The Doctor issued a postmortem certificate under Ex.P11, giving opinion that the death was due to the sustained head injuries and shock; and that
the external injury No.1 with corresponding internal injury, which was fatal in nature, could cause instantaneous death. M.O.3 bed sheet found on
the dead body of Jayabal was received by P.W.16, a constable, on 14.10.1990, who in turn handed over the same to P.W.18 the Inspector. The
Inspector seized M.O.3 under Form-95.
P.W.18 examined P.Ws.1 to 6, 9 to 14 and others and recorded their statements. He arrested A-15 on 14.10.1990 at 1.00 P.M. near
Velakudi bus stop. A-15 gave a confessional statement. The admitted portion of his confessional statement is marked as Ex.P21. On the basis of
the confession, A-15 carried the police party and produced M.O.1 crowbar, which was recovered by P.W.18 under Ex.P22 mahazar in the
presence of the witnesses. At 5.00 P.M. on the same day, the Investigation Officer arrested A-1 to A-4, A-8 and A-14 near Ayyanarthope
Keelakondalavadi and sent A-1 to A-4 and A-8 to the hospital for treatment. He also took up the investigation of the case registered by the Head
Constable in Crime No.396/90 under Ss 147, 336 and 323 IPC. The accused were sent for remand. The Investigation Officer examined the
witnesses Kasinathan, Meganathan, Ramarajan, Ethiraj, Nallathambi, Kannaiyan and Sukri and recorded their statements. The material objects
were sent to the Magistrate''s Court. Ex.P23 is the requisition for sending the M.Os.1 to 3 for chemical analysis. P.W.18 gave Exs.P24 and P25
requisitions for sending the viscera for chemical examination. The Chemical Analyst''s report and Serologist''s report were marked as Exs.P29 and
P30 respectively. A-5 to A-7, A-9 to A-13 and A-16 were arrested on 29.10.1990 at 6.00 A.M. and sent for remand. He sent a report on
30.10.1990 to the concerned court, referring the case in Crime No.396/90 as mistake of fact. He received Exs.P31 to P35 wound certificates in
respect of A-1 to A-4 and A-8 from the Doctor. His successor Jagadeesan, Inspector of Police, took up further investigation, and laid the final
report against the accused.
In order to prove the charges levelled against the accused, the prosecution examined P.Ws.1 to 18, marked Exs.P1 to P35 and produced
M.Os.1 to 5. The appellants when questioned under S. 313 of Code of Criminal Procedure, have flatly denied the versions of the prosecution
witnesses as false. No defence witnesses were examined, but Exs.D1 to D3 were marked. After hearing both sides, the learned Sessions Judge
found the appellants/accused guilty under S. 302 of Indian Penal Code and sentenced them to undergo life imprisonment, while he acquitted the
appellants/accused of the other charges and also the other accused of the respective charges. Hence, this appeal.
The appellants herein, who were ranked as A-15 and A-16 respectively before the lower court, stood charged Under Ss 148 and 302 of
I.P.C, while A-1 to A-14 were charged under Ss 147, 324, 302 read with 149 of I.P.C. As stated above the appellants/accused were convicted
for the offence under S. 302 of IPC and sentenced to life imprisonment, and all other accused, including the appellants, were acquitted of the other
charges. The lower court was of the view that the prosecution has not proved beyond reasonable doubt, the charges framed against A-1 to A-14
and also the other charges framed against these appellants, except the charge framed under S. 302 of I.P.C.
Arguing for the appellants, the learned Counsel would submit that the motive attributed to the accused for the commission of the offences was
too flimsy and too remote; that having accepted the defence version and acquitted all the accused in respect of all other charges, the lower court
should not have convicted these appellants for a grave charge of murder on the same evidence; that the prosecution has neither placed acceptable
evidence nor proved the charge beyond reasonable doubt; that P.W.1 came to the scene of occurrence knowing that there was already a quarrel,
and hence, he did not know the origin of the occurrence; that the deceased has also come to the scene of occurrence later; that it is not the case of
the prosecution that the deceased had participated in any one of the incidents or quarrels that preceded the occurrence in question, and hence the
contention that A-15 and A-16 attacked the deceased Jayabal was highly improbable and unbelievable; that the prosecution has not brought forth
any motive against A-15 and A-16 to attack the deceased; that all the prosecution witnesses were inter-related and friends belonging to the same
faction who had acted against the accused admittedly; that from the evidence of P.W.1, it would be clear that P.W.6 has come to the occurrence
place only after the occurrence was over; that a careful reading of P.W.1''s evidence would indicate that he could not have been present at the time
of occurrence; that it was the case of the prosecution that he sustained injury, but the lower court has acquitted the accused, against whom the said
accusation was made; that the prosecution has suppressed the real facts and state of affairs; that the police has foisted the instant case against these
appellants and A-1 to A-14, since the complaint given by them was later in point of time; that the prosecution has miserably failed to explain the
injuries that were sustained by some of the accused at the time of the alleged occurrence; and that the prosecution has not examined any
independent witness, though admittedly there were number of persons in the neighbourhood. Added further the learned Counsel that the medical
evidence adduced by the prosecution did not corroborate the oral testimony of the witnesses, relied on by it; that the same was material defect,
which has greatly affected the prosecution; that a reading of the evidence of P.Ws.1, 6, 12 and 13 would clearly reveal that they have not spoken
the truth; that no stick has been recovered from A-16; that the only witness examined by the prosecution regarding the recovery of the weapons
from the different accused in the case viz. P.W.15 Village Administrative Officer, has turned hostile; that there was absolutely no evidence for
recovery of the weapons; that so far as A-16 was concerned, even according to the prosecution, he attacked the deceased Jayabal with casuarina
stick on the right flank of the deceased; that the postmortem certificate would reveal that there was a simple injury that was caused; that there was
nothing to indicate that he had any intention to kill the deceased; that the lower court should not have found both the appellants guilty under S. 302
of I.P.C., and thus, the prosecution has not proved the charge against the appellants, and hence, the appeal has got to be allowed.
Countering to the above contentions of the appellants'' side, the learned Additional Public Prosecutor would submit that the appellants herein
along with A-1 to A-14 constituted an unlawful assemble with the common object of causing riot and murdering one Jayabal; that though all the
accused participated in the first part of the occurrence and attacked some of the prosecution witnesses, A-15 and A-16 alone, who were armed
with crowbar and casuarina stick respectively, proceeded to the second place of occurrence and have attacked Jayabal, who was returning from
the ration shop; that the said occurrence has been clearly spoken to by the eyewitnesses viz. P.Ws.1, 6, 12 and 13; that P.W.8, Doctor, who
conducted autopsy on the body of the deceased also deposed that four injuries were found on the body, and injury No.1 found on the skull was
fatal and has caused the instantaneous death to him; that it is not correct to state on the part of the appellants that the medical evidence did not
corroborate the evidence of the eyewitnesses; that it remains to be stated that the first appellant/A-15 has attacked the deceased Jayabal on the
back of the head with a crowbar, and hence, there was all possibility for a fracture being caused between the left parietal and right parietal of the
head; that the lower court has taken into consideration the said submission made by the appellants/accused, and has rejected the same on well
founded reasons; that the second appellant/A-16 has not only attacked the deceased with casuarina stick, but has also strangulated him, and thus,
he has shared the intention of A-15 to cause the death of the deceased Jayabal, and hence, the lower court was perfectly correct in finding the
appellants guilty under S. 302 of IPC; that there are no merits in the appeal, and the same has got to be dismissed.
what is challenged herein is the finding recorded by the lower court that the appellants herein, who were shown as A-15 and A-16 respectively
were guilty under S. 302 of Indian Penal Code. In order to find them guilty, the lower court has relied on the evidence of the eyewitnesses viz.
P.Ws.1, 6, 12 and 13, apart from the medical evidence.
A careful scrutiny of the entire evidence would reveal that on 13.10.1990 at about 4.30 P.M., when some of the prosecution witnesses were
talking before the house of Ramarajan, the second accused crossed them; that P.Ws.2 and 4 asked the second accused regarding the damage that
was caused to the house of Perumal, the previous day and, the same resulted in A-2 slapping P.W.4 on his cheek; that the second accused called
all other accused; that while all the accused were armed with sticks and stones, A-15 was armed with M.O.1 crowbar and A-16 armed with stick;
and that following the said incident of clash near the house of Ramarajan, A-15 armed with crowbar and A-16 armed with stick were proceeding
near the house of Ekali Nallathambi. P.W.1 has deposed that he was present and injured at the time of the occurrence that took place before the
house of Ramarajan, and he followed A-15 and A-16 who were armed with the above weapons; that he saw his elder brother Jayabal returning
from the ration shop and on seeing him, he shouted at him to leave that place; that when Jayabal attempted to escape, A-15 attacked Jayabal with
crowbar at the back side of his head; that Jayabal fell down; and that A-16 beat Jayabal with casuarina stick on his back and also strangulated his
neck; that when he shouted, A-15 and A-16 ran away with the weapons they had in their hand. It is the evidence of both P.Ws.12 and 13 that at
the time of occurrence, they heard some noise near the house of Ramarajan, and they found A-15 and A-16, the appellants herein, running from
that place with crowbar and stick near the house of Ekali Nallathambi; that Jayabal was coming from the west; that on seeing A-15 and A-16,
Jayabal attempted to escape; that at that time, A-15 attacked Jayabal on his head with crowbar, while A-16 beat Jayabal with casuarina stick; that
Jayabal fell down, and A-16 strangulated the neck of Jayabal. It is pertinent to note that these witnesses are independent witnesses. The appellants
are unable to show why these witnesses, belonging to the same place should come forward to give evidence against them or in favour of the
prosecution. It is not the case of the prosecution that these witnesses were unknown persons. It has to be noted that the occurrence has also taken
place at about 5.00 P.M. The appellants'' side is unable to show any reason or circumstance to disbelieve or reject their testimonies. The evidence
of P.Ws.12 and 13 would clearly reveal that they have witnessed the occurrence. Their evidence is cogent, natural and acceptable.
It is true that the dispute regarding the raising of bamboo plants by the first accused arose four years prior to the occurrence in question. Since
A-1 has not obeyed the decision of the panchayat, the strained relationship between the parties did not subside, but should have continued. From
the available evidence, it could be well seen that P.Ws.2 and 4 asking A-2 as to the damage caused to the house of Perumal, the brother of
P.W.4, the previous day viz. 12.10.1990, seems to be the immediate reason for the origin of the offence in question.
The lower court has relied on the evidence of P.W.6 also. During the cross examination, P.W.1 has admitted that P.W.6 came to the
occurrence place, after the occurrence was over. Thus, P.W.6, could not have seen the occurrence, and hence, her evidence would be of no help
to the prosecution case. The evidence of P.W.14, the wife of the deceased Jayabal, would go to show that on hearing the noise ""Jayabal was
beaten and lying down with the injuries on his head"", she came to the occurrence spot immediately and saw her husband with injuries. It is pertinent
to note that the appellants have not disputed the place of occurrence. During investigation, the Investigation Officer, who conducted the inquest on
the body of Jayabal, by following the procedural formalities has sent the body for postmortem. The body of Jayabal was subjected to autopsy by
P.W.8 Dr. Balachandran. According to P.W.8 Doctor, the death was due to the injuries caused to the deceased on his head and due to shock.
Injury No.1 reads thus:
1) A lacerated wound about 6 x 4 x 1 cm in nature behind neck which is bone depth.
Injury No.4 reads thus:
4) 4 x 2 x 1 cm lacerated wound middle of the skull.
According to the Doctor, the external injury Nos.1 and 4 were interconnected and were possible by a single stroke. Thus, it would be clear that
both the injuries were caused by the blow given by A-15 with great power on the back of the neck of the deceased. From the evidence of P.W.8
coupled with Ex.P11 postmortem certificate, it could be seen that the skull was found broken, only after removal of the scalp, and the same was
corresponding to the external injury No.4.
It is contended by the appellants'' side that all the eyewitnesses have deposed that the first appellant/A-15 attacked Jayabal with a crowbar on
the back of the head, but the deceased has sustained injury in between left parietal and right parietal of the head. This contention cannot be
countenanced in view of the available evidence adduced by the prosecution through eyewitnesses and P.W.8 Doctor. As could be well seen from
Ex.P11 postmortem certificate, there was a lacerated wound about 6 x 4 x 1 cm. in nature behind the neck which is bone depth, and another
lacerated wound measuring 4 x 2 x 1 cm. on the middle of the skull. All the eyewitnesses have categorically spoken that A-15 gave a single blow
with crowbar on the back side of the neck of the deceased Jayabal. P.W.8 Doctor has also categorically deposed that he has noted only one
external injury on the skull i.e. injury No.4, and he has not noted as skull fracture in Ex.P11, but has noted as skull broken, since he found the skull
broken after the removal of the scalp; that the said injury corresponds to the external injury No.4; that the external injury No.4 is in the middle of
the skull, which meant the centre of the head in between the left parietal and right parietal of the skull. It is pertinent to point out that the Medical
Officer has categorically opined that the external injury No.1, which corresponds to the internal injury, was possible by beating with a weapon like
M.O.1; that the external injury No.1 with corresponding internal injury was fatal in nature, and it could cause instantaneous death; and that the
external injury Nos.1 and 4 were interconnected and were possible by a single stroke. It remains to be stated that while a person is attacked with a
lethal weapon like M.O.1 crowbar with full force, it could naturally cause extensive injuries. P.W.8 has stated that the skull was found broken only
after the removal of the scalp, and hence, it cannot be stated that the ocular evidence and the medical evidence are discrepant and inconsistent. On
the contrary, the medical evidence stands in full corroboration of the ocular evidence.
While the occurrence has taken place on 13.10.1990 at 5.00 P.M. at Kilakundalapadi Village, the case was registered by P.W.18, Inspector
of Police, Annamalai Nagar Police Station, at 9.00 P.M that day. It is not disputed that the said Police Station is situated 12 Kilometers away from
the place of occurrence. On receipt of the copy of the First Information Report, P.W.18, Inspector of Police took up the investigation, proceeded
to the place of occurrence at about 11.30 P.M., made an inspection, prepared Observation Mahazar and rough sketch, recovered the material
objects, conducted inquest and sent the body of Jayabal for autopsy. Hence, it would be clear that without any delay, the investigation has
proceeded. Therefore, the prosecution has clearly proved that A-15 attacked the deceased Jayabal with M.O.1 weapon of murder viz. crowbar
on the back of his neck and caused a fatal injury resulting in the death of Jayabal, and the same would clearly indicate the intention of the first
appellant/A-15 to cause his death, and the lower court was perfectly correct in finding him guilty under S. 302 of I.P.C.
So far as the second appellant/A-16 was concerned, all the eyewitnesses have deposed that he attacked the deceased Jayabal with casuarina
stick on his back and strangulated him. According to P.W.8 Doctor, the external injury Nos.2(a) to (c) were possible by beating with a weapon
like Casuarina stick, and injury No.2(a) and (b) are two contusions on the back, and the second contusion was lateral to the first contusion, and so
far as external injury No.2 is concerned, there was no corresponding internal injury. Thus, it would be clear that the injury that was caused to the
deceased Jayabal by A-16 on the right flank was only simple in nature; and that the external injury Nos.2(a) and (b) were contusions and simple
injuries. Relying on the evidence of the eyewitnesses, the learned Additional Public Prosecutor would submit that the second appellant/A-16 had
also contributed to the death of Jayabal by strangulating him. It remains to be stated that there is no corresponding injury referable to the
strangulation found on the front of the neck, and according to P.W.8, the hyoid bone was in tact. Taking into consideration the simple injuries that
were caused by the second appellant/A-16 on the right flank of the deceased, it cannot be stated that he had the intention to commit the murder of
Jayabal or shared the intention of the other accused. Hence, the offence committed by A-16, under the circumstances, would squarely fall under S.
324 of Indian Penal Code, and not under S. 302 of I.P.C. as found by the trial court.
Therefore, the judgment of conviction and sentence passed by the lower court in respect of the first appellant/A-15 has got to be sustained.
But, the judgment of the lower court finding the second appellant/A-16 guilty under S. 302 of I.P.C. has got to be set aside, and instead, A-16 is
found guilty under S. 324 of I.P.C. Taking into consideration the facts and circumstances, sentence of three years R.I. along with a fine of Rs.500/-
is imposed on A-16.
In the result, this criminal appeal is dismissed as against the first appellant, and the judgment of the trial court is confirmed in that regard. In
respect of the second appellant, this criminal appeal is partly allowed, setting aside the judgment of the court below, finding him guilty under S. 324
of I.P.C. and imposing three years R.I. along with a fine of Rs.500/- on him, and in default of payment of fine, he shall undergo R.I. for two
months. The learned Sessions Judge shall take steps to commit the appellants/A-15 and A-16 to prison to undergo the remaining period of
sentence.