Kannusami vs State of Tamil Nadu

K.T. Thomas and K.G Balakrishnan, JJ.—Three persons were convicted for the murder of the Vasu and all of them were sentenced to imprisonment for life for the offence u/s 302 read with Section 34 of the Indian Penal Code The High Court, on appeal filed by the three convicted persons, confirmed the conviction and sentence and dismissed the appeal. They have come up before this Court by special leave.

The incident happened on 14.6.1987 around 6.30 a.m. in the field of the father of deceased Vasu. The prosecution case, in brief, is the following:

Vasu is the son of P.W. 1-Muniyandi Kohar, and his wife P.W. 2-Kaliammal. The son of A-1 Sengiah had married the sister of Vasu by name Familzharasi but skirmishes occurred in that married life and she was later deserted by her husband. The said desertion was followed by the death of another son of A-1. A criminal complaint was filed by A-1 against the deceased Vasu, his father and some others alleging that they were responsible for the death of that son of A-1 but the police did not take any action on the said complaint. The incident in this case happened in the above backdrop.

Deceased Vasu went to the field for some agricultural operation during the morning hours, followed by his parents. It was then that the three accused neared the deceased. Initially there was altercation between the accused and the deceased Vasu. A-3 beat Vasu on his shoulder by a stick. Thereafter A-1 with a chopper and A2 with a knife inflicted cut injuries on Vasu. Even after Vasu fell down, A-1 and A-2 continued to inflict blows with a chopper and a knife. He sustained large number of cut injuries many of them on the neck itself. The major blood vessels on the neck were cut and Vasu had died almost instantaneously.

The information about the occurrence was conveyed by P.W. 1 - Muniyandi to P.W. 6 - who was the village administrative head from whom P.W. 7 got the news. A first information report was lodged by P.W. 7 at 11 a.m. with the police station.

Two witnesses who supported the above prosecution case are P.W. 1 - Muniyandi and P.W. 2 - Kaliammal. They have spoken in full length of the details of the prosecution story. They were cross-examined at great length. The trial court found their evidence acceptable and hence, relied on it and reached the conclusion that death of Vasu was at the hands of the three accused persons.

Ms. V. Mohana, learned Counsel, who argued for A-1 and A-2, contended that P.W. 1 and P.W. 2 would not have been present at the scene of occurrence. In support of the said contention, she tried to highlight two points. One is that the clothes on the two parents were not smeared with even a stain of blood. Second is that the information about the occurrence had reached the police station only several hours thereafter.

At the first blush, we felt that Ms. Mohana had a strong point on the first aspect of absence of blood on the clothes but the details of evidence showed that neither P.W. 1 nor P.W. 2 moved forward to catch hold of their son. Ms. Mohana contended that the above is not a natural conduct of any parent when seeing their son in such a situation. True, in such a situation some parents might fall on the injured son. But to say that such a conduct should necessarily have been exhibited by all the parents as a natural conduct, is not a correct proposition. What is first pattern of natural conduct in a situation like this. It is equally possible that the parents who saw their son being butchered by cutting the neck would have become startled, benumbed and dumbfounded. Their mobility would have been very much impaired and hence, they would not have moved forward to hold their son. We cannot rule out the above possibility and, therefore, we cannot now say that the conduct of the parents was not natural.

Regarding the delayed first information report, we have noticed that P.W. 1 conveyed the information to the village head by 8 a.m. and P.W. 7 boarded the bus at 9.30 a.m. and covered a distance of 12 kms. for reaching the police station. The first information report was lodged at 11.30 a.m. The overall picture narrated above would indicate that there could not have been any possibility of P.W. 1 deliberating himself or with others for the purpose of concocting a case against the three accused.

Ms. Mohana then made an attempt to show that death of the deceased would have happened a few hours prior to 6.30 a.m. For that purpose, she cited that post-mortem report recorded by P.W. 3 doctor that rigour mortis passed off from the hand. Unfortunately, this aspect has not been utilised by the defence counsel in the trial court. P.W. 3 - doctor should have been confronted with the above aspect in cross-examination. It was not done. Even no text book on "Medical Jurisprudence" was cited before us to show that disappearance of rigour mortis on the hands would necessarily lead to an inference that death would have happened a couple of hours prior to 6.30 a.m., which is shown as the time of occurrence in this case.

Ms. Mohana lastly contended that the possibility of the second accused being falsely implicated cannot be ruled out as P.W. 1 and P.W. 2 would have been nurturing vengeance towards the family of A-1. Even that possibility is not enough for us to discard the testimony of P.W. 1 and P.W. 2 which was found reliable by the trial court and the High Court.

Mr. S. Nandakumar, learned Counsel appearing for the third accused contended that even accepting the entire version put forward by P.W. 1 and P.W. 2, the third accused cannot be fastened with the liability u/s 302 by resorting to Section 34 of the Indian Penal Code All that he did, according to the prosecution version, was to inflict a blow with a stick on the right shoulder. The description of the incident shows that the blow given by the third accused was preceded by an altercation between the deceased and the third accused. After the first and the second accused started inflicting blows with lethal weapons, the third accused did not do anything against the deceased. Even after the deceased fell down, the first and the second accused continued to inflict blows on him, but still the third accused did not do anything.

From the above conspectus of the details of the occurrence, it is possible for us to believe that A-3 would have intended anything more than inflicting an assault on the deceased. From the facts, it is not a necessary inference that A-3 would certainly have shared common intention with A-1 and A-2 for killing the deceased. At any rate there is an area of doubt on that score. We are inclined to extend the benefit of that doubt to A-3. He can, therefore, be convicted only for the offence u/s 324 of the Indian Penal Code

In the result, we confirm the conviction and sentence on A-1-Sengiah and A-2-Marimuthu. But we alter the conviction of A-3 from Section 302 read with 34 to Section 324 of the Indian Penal Code We are told that A-3 had already undergone imprisonment for nearly three years. In the circumstances, we deem it fit to impose a sentence (for the offence u/s 324) of rigorous imprisonment for the period already undergone by him. This means that A-3 shall be set at liberty forthwith unless he is otherwise required in any other case.

The appeal is disposed of accordingly.