Kodikkal Balu vs State of Tamil Nadu

M.M. Punchhi, J.—The crime which is involved in this appeal was committed on 3.9.1984 at about 10 p.m. in some agricultural fields situated in the village of the parties. A-1 who is the sole Appellant before us, was related to Solai Thevar deceased, as the sister of A-1 was married to the deceased. The deceased had a brother by the name Balusamy Thevar who had died 14 years earlier. One daughter of Balusamy Thevar stood married to A-1 and the other to PW-1. This was the second relationship. Solai Thevar was said to be promiscuous in morals. He not only had illicit connections with PW-4, the widow of his brother Balusamy Thevar but with other women as well. The relations inter se were a quarrelling lot inasmuch as there had earlier been untoward incidents and the parties had litigated. In the occurrence, participation of two others, besides A-1 was alleged, those being complete strangers. A-2 was Seeni and A-3 was Thavakkapandy. The actual killing of the deceased was confined between Seeni and Thavakkapandy. A-3 died during the committal proceedings of the case. A-2 was found guilty at the trial and stands convicted substantively for offence u/s 302 I.P.C. and sentenced to life imprisonment. After his conviction was upheld by the High Court, he has not appealed. So, we are left to deal with the role of A-1 alone.

It was a night occurrence, as is evident. The complainant party comprising of the deceased and PW-1 were returning from the fields to their village. Solai Thevar deceased was leading them. On the way, from a sugarcane field, a voice was heard remarking: "He is coming." It has not been established by the prosecution as to whose voice that was. All the same, those remarks alerted the deceased and PW-1. Since both were equipped with torches, they used them in the direction from where the voice had emanated. They found the Appellant, A-1, sitting on the Eastern hedge of the sugarcane field. At that point of time, a lean man-referable as A-2 came forward and inflicted blows on Solai Thevar with his Aruval injuring him on his head, neck and other places. He was joined by a fat man-referable as A-3 who inflicted injuries on the deceased with knife on the latter''s back as also hand. While this was going on, statedly, A-1 remarked: "Stabbing is enough. Thavakkapandy, you come away running." Then A-1 is said to have added: "Come along Seeni. Let us run away." Solai Thevar fell down on the ground dead, as a result of the injuries inflicted on him by the lean man and the fat man named Seeni and Thavakkapandy. PW-1 claimed to have seen the occurrence with the aid of a torchlight. This, in a nutshell, is the prosecution version, and this has been held proved in the courts below.

A-1 and PW-1 were closely related being co-brothers, married respectively to two sisters. Besides, the deceased was the brother-in-law of A-1. The deceased was also a kinsman to the mother-in-law of A-1 and PW-1. The role assigned to A-1 by the prosecution is comparatively lesser than the one assigned to the other two stranger accused who, the prosecution alleged, were hired assassins at the behest of A-1. But this aspect of the case the prosecution could not successfully hammer to the point, except in leading evidence that some money approximating Rs. 220/- was recovered from those accused. Thus, it is only to be seen whether the conviction of A-1 u/s 302 read with Section 109 I.P.C., for which he was duly charged, is well-based on the prosecution case, as disclosed, and on the findings recorded by the courts below.

Section 107 I.P.C. whereupon is structured offence u/s 109 I.P.C. may well be reproduced hereunder:

"107. Abetment of a thing. - A person abets the doing of a thing, who

First - Instigates any person to do that thing; or

Secondly - Engages with one or more other persons or person in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing."

Attempting to fit in the established prosecution case in the requirements of the provision it would seem that the first ingredient about instigating another to commit the crime is totally wanting. Secondly, there is no evidence to suggest that A-1 had engaged with one or more person(s) in any conspiracy for the doing of a thing, or that an act or illegal omission had taken place in pursuance of that conspiracy and in order to the doing of that thing. Thirdly, ex facie or on face of it, no act or illegal omission which would go to the doing of that thing, which would amount to abetment was done by A-1 by any act or illegal omission, intentionally rendering as aid. Merely telling the accused persons that enough violence had been perpetrated could well have been remonstration or a statement made in disgust. In any case, the evidence rendered by the prosecution is so slender that we deem it unsafe to maintain the conviction of the Appellant for offence u/s 302 read with the aid of Section 109, I.P.C. on the sole testimony of P.W.1 despite his being a relative of the appellant, all the same, when the prosecution has not been able to prove that the actual assailants were hired by A-1. Keeping this in view and other surrounding facts and circumstances, we go on to record the verdict of acquittal in favour of the appellant. The appeal, thus, stands allowed. The judgment and order of the High Court and the Court of Session to the extent relating to the appellant, shall stand set aside. The appellant is in jail. He be released forthwith unless wanted in some other case.