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Judgment
Arumugham, J.—This appeal is directed against the judgment of the learned Sessions Judge at Srivilliputhur made in Sessions Case No. 132
of 1987, convicting the Appellant, who was the accused, for the offence u/s 307 of the India Penal Code (for short ''IPC'') and thereby sentenced
him to undergo Rigorous Imprisonment for a period of ten years with a fine of Rs. 500/- and in default of payment of the fine amount to undergo
Rigorous Imprisonment for a further period of six months, but the sentences to run concurrently.
The short facts of the prosecution case, as culled out from the adduced evidence of the prosecution witnesses, are stated as follows:
P.W.1 Murugesa Pillai and the Appellant herein are the natives of Avudayapuram village, which is situate within the jurisdiction of Vachakarapatti
Police Station in Madurai-Kamarajar District/P.W.1 and the Appellant are affiliated to Congress party and RSS party respectively, and P.W.1
claims to belong to caste Hindu viz. Pillaimar community. It appears from the recorded evidence that there was previous enmity existed between
P.W.1 and the Appellant and in connection with that the elder brother of the Appellant drove his cart over the agricultural fields of P.W.1 and
thereby caused damage to P.W.1 by destroying the standing crops on his agricultural fields. This took place about a year ago prior to the
occurrence and in connection with that a Panchayat was convened, but the elder brother of the Appellant did not heed to the Panchayat and he
was beaten by P.W.1 for not heeding to the Panchayat and as a result of which, both the Appellant and his elder brother threatened P.W.1 to
murder him, about which a complaint was lodged in the Vachakarapatti Police station and both the parties were enquired and warned by the Head
Constable of the said police station. One another incident which precipitates the existing motive was that during the local body election held in the
year 1986, P.W.1 contested for the post of President on behalf of Congress party and he was opposed by one Murugesan on behalf of RSS party
and in support of him the accused worked in the election campaign and in that connection also serious enmity existed between the Appellant and
P.W.1.
In this back-drop, at about 4:30 P.M. on 2-11-1986 some boys in Avudayapuram village were quarreling among themselves while they were
playing marbles near Sri Balamurugan School. It is stated that the accused/Appellant was found among the boys. On seeing the quarrel, P.W.1
went there and pacified the boys. But, however, as stated that the whole trouble arose in view of the boys belonging to RSS party were also
present, which was duly accosted by the Appellant herein, but nothing had happened and all of them dispersed. This was followed by; the actual
occurrence, which happened at about 7.00 P.M. when P.W.1 was returning from the conversation, which he was indulged in with the villagers in
front of the house of Santhanam Pillai and he was being called by P. Ws. 2 and 3 for the purpose of taking his supper and that while his sons P.
Ws 2 and 3 were proceeding 10 feet ahead and P.W.1 was following them and when they proceeding towards south in the North-South road and
near Sri Balamurugan School the Appellant/accused followed P.W.1, with a sickle in his hand, from north towards south and during that time by
stating that he was the person always intervening with the public problems and always accusing the RSS party and he should be done to death. So
saying, it was alleged that the Appellant gave a cut against P.W.1, but he warded off the same and forwarded a few steps ahead and during that
time he raised hue and cry that the Appellant is attempting to cut. The Appellant again gave a cut with the sickle in his hand against P.W.1 and this
time the cut landed below the knee of the left leg of P.W.1 and the cut portion of the leg was severed from the body and fell down, which brought
P.W.1 to the ground. The Appellant then fled away from the scene with the weapon of offence. On hearing the hue and cry of P.W.1, P. Ws.2, 3
and 4 and other villagers gathered.
P.W.9 Sub Inspector of Police attached to Vachakarapatti Police Station, who had been to Kottur and other places in search of the accused in
Crime No. 147 of 1986 for the offences under Ss. 457 and 511, IPC, happened to return through the scene village at about 7.15 I.M. on 2-11-
1986 and he heard about the occurrence and he went to the scene place and saw P.W.1 with his left leg cut off with bleeding injuries. He recorded
the statement of P.W.1, which was marked as Ex.P-1 and arranged for a taxi to take P.W.1 to the Government Hospital at Virudunagar for
treatment. Then he returned to the police station by 8:15 P.M. and registered the Ex.P-1 as Crime No. 150 of 1986 against the Appellant/accused
for committing an offence u/s 307, I.P.C and prepared the First Information Report in the printed form, which was marked as Ex.P-6 and
prepared Express Reports and sent them to higher Officials for further action.
P.W.6 Civil Assistant Surgeon attached to Government Hospital, Virudhunagar, on receipt of the memo by P.W.9, examined P.W.1 at about
9:30 P.M. on 2-11-1986 and found the left leg of P.W.1 was cut off and one-third portion of the said cut off leg was hanging. He gave first-aid
and treatment and then referred P.W.1 to Rajaji Government Hospital, Madurai for further treatment. He opined that the injury found on the
person of PW1 was grievous in nature and may likely to cause death. Ex.P-2 is the wound certificate issued by him.
P.W.10 is the then Inspector of Police. On receipt of the FIR in Crime No. 150 of 1986 from PW-9, he took up further investigation. He went
to Virudunagar Government Hospital, Madurai and examined P.W.1 there. He also recorded a statement from P.W.1 and on the advice of
medicos he sent P.W.1 to Rajaji Government Hospital, Madurai for further treatment. At about 12 midnight he went to the scene place and
prepared observation Mahazar Ex.P-3 in the presence of the Village menial PW-7 and another witness Viz. Sankaravel. He also drew a rough
sketch (Ex.P-7) and seized blood stained earth (M.O.2) and sample earth (M.O.3) under cover of Mahazar Ex.P-4, which was attested by
P.W.7 and Sankaravel at about 1 AM on 3-11-1986. Then on 3-11-1986 at about 8-00 AM he searched the house of the accused in the
presence of P.W.8 and Sankaravel and recovered a sickle (M.O1) from the roof of the house of the accused and he prepared the search list,
which was marked as Ex.P-5. The accused surrendered himself before the court. After examining some other witnesses and completing the
investigation, P.W.10 submitted a final report before the court of law for the above offence against the accused. When the accused/Appellant was
questioned u/s 313 of Code of Criminal Procedure by the trial Court on the basis of the incriminating piece of evidence against him, he totally
denied the same and pleaded not guilty. However, the accused did not examine any one as witness on his behalf. The prosecution has adduced
oral evidence by examining P. Ws. 1 to 10 and relied on the documents marked as Ex.P-1 to P-7 as well as M.Os. 1 to 3. On assessing the entire
oral and documentary evidence and the evidence relied on by the prosecution in the context of the plea taken on behalf of the accused, the trial
court found the accused guilty for the offence framed and tried against him and convicted him and sentenced him to undergo imprisonment as
aforestated and against which, the present appeal has been preferred, challenging the validity and correctness of the same.
Among the various other grounds raised in the grounds of appeal, Mr. K. Asokan, learned Counsel for the Appellant projected the impugned
judgment on the following 3 main grounds, Viz.
i) that since the testimonies of P. Ws. 2 to 4 happened to be the testimonies of close relatives of the injured P.W.1 being son and son-in-law, they
cannot be relied on as the sole basis for convicting the accused/Appellant and their evidence cannot be taken as a gospel truth for the simple
reason that when P.W.1 was cut by the accused/Appellant, the above said witnesses were going ahead of P.W.1 at a considerable distance from
the scene of occurrence and that only on hearing the hue and cry of P.W.1, if at all they could have witnessed it was possible for them only to turn
back and that within that time the alleged overt act, being a solitary and single one, cannot be witnessed by them as claimed by the said witnesses
and that therefore the claim of P. Ws.2 to 4 cannot be accepted;
ii) The learned Counsel contended that the documentary evidence collected by the Investigating Officer at the earliest point of time do not disclose
that there was light element available to identify the overt act of the accused/Appellant and that though the ocular witnesses claim during the
evidence for the first time that there was light and that therefore with the light available from the lamp-post the overt act of the accused/Appellant
was identified is clearly an afterthought and that the trial court has clearly overlooked the same;
(iii) That even assuming that even if the cut was dealt with by the accused/Appellant, nothing is made available by the prosecution to prove or to
infer that the intention of the Appellant is to do away the life of P.W.1 and that therefore though the left leg of P.W.1 below to his knee was
severed, thereby causing permanent disablement, this may not amount to an offence u/s 307 IPC and that in this regard the judgment of the learned
Sessions Judge in convicting the Appellant for the offence u/s 307 IPC and sentencing him to undergo Rigorous Imprisonment for a period of ten
years is too harsh and disproportionate to the gravity of the offence
Per contra, I have heard Mr. Kumaravelu, learned Government Advocate, who mainly relied on the oral testimony of P.W-1, injured in this
case in support of the impugned judgment in this case. Though it was contended that the testimonies of P. Ws 2,3 and 4 can be taken to the extent
that they are narrating the res gestae occurrence, the learned Government Advocate contends that in all proximity renders full corroboration and
support to the claim of P.W.1 pertaining to the specific and clear overt act of the Appellant in severing his left leg by cutting with the sickle
(M.O.1) and that therefore the complicity of the accused causing such an injury with a lethal weapon has been clearly spoken to by P.W.1 on the
one hand with every support of P. Ws. 2, 3 and 4 and with the corroborative evidence of P.W.6, Doctor who treated P.W.1.
In the light of the rival contentions above projected the only question that arises for consideration is that whether the prosecution has established
the guilt and complicity of the accused/Appellant beyond the realm of any doubt and if so, whether the impugned judgment is correct and perfectly
valid?
As was rightly concluded and pointed out by the learned Sessions Judge, there was no serious controversy or dispute with regard to the
bickerings or the enmity existed between PW1 and the Appellant happened on several occasions prior to the occurrence but the near proximity
and the immediate motive, according to the prosecution, was that the utterances made by P W1 against the persons belonging to RSS party. It is
stated that there was a quarrel among the boys who were playing marbles near Sri Balamurugan school and at that time the accused was also
present among the boys and since he belongs to RSS party he was aggrieved by the remarks made by P.W.1 against RSS party. But in my view, it
cannot be the sole basis for the accused/Appellant to perpetrate the violent attack upon the person of P.W.1. The real reason is the
accused/Appellant had enough enmity and adequate reasoning for bickering in view of the previous enmity which had happened long back on more
than one occasion and he did nothing in furtherance of the same. But for the mere utterances or remarks alleged, if any, if the Appellant/accused
prepared himself to perpetrate the violent attack upon P.W.1 then there must be something behind the back of it. But, however, this aspect
amounts to the mental phenomenon of the Appellant and the sudden impulse developed in his mind during the time of occurrence. It is difficult for
the prosecution to screen the mind of the accused to find out the exact motive which developed in his mind for perpetrating the violent attack on
the injured. Therefore, it is highly unsafe to expect the complete establishment of motive for such overt act. However, the court of law have to
depend upon the other circumstances and the accounting of witnesses for the occurrence. In this connection, having perused the evidence of
P.W.1 on the one hand and the evidence of P Ws 2, 3 and 4 on the other hand, coupled with the every corroboration of evidence of PW-6
Doctor who treated P.W.1, I am fully satisfied to hold that the prosecution had established the guilt and complicity of the accused in severing the
left leg of P.W.1 and on this score, I am fully satisfied to endorse my view with the contentions advanced by Mr. Kumaravel, learned Government
Advocate on behalf of the State.
As regards the version made in FIR Ex.P-6 it is well settled judicial pronouncement that an F.I.R is not an Encyclopedia of all events taken
place to be narrated but a material piece of evidence expected to come into being with every material particulars at the earliest point of time. If that
is so, one cannot expect that an FIR should contain all and every minute and flimsy details, but even though everything expected to be material is
made available in the FIR filed in this case and nothing can be attributed against the same as pointed out by the learned Counsel for the Appellant.
Therefore, with regard to first two points advanced by Mr. Asokan, learned Counsel for the Appellant, I am totally unable to countenance the
same.
Coming to the third contention raised by the learned Counsel for the Appellant in the context of non-proximity available to the existing motive
between the Appellant and P.W.1, in the circumstances that the overt act of the Appellant in dealing with a single cut upon the left leg of P.W.1
with M.O.1 and whereupon his left leg below the knee was amputated and thereby he was made to lose permanently a limb. In my considered
view that would not amount to an offence contemplated u/s 307 IPC, especially in the absence of any other injuries, in both the hands or the fingers
of P.W.1 as evidence from the wound certificate issued by PW-6 and the evidence spoken to by the medicos, it is not at all possible to hold the
version of P Wl that the accused gave the first cut towards his head and he warded off the same and again the accused gave a second cut on his
left leg with regard to the offence u/s 307 IPC. Perhaps in view of his left leg was cut and severed, he might have thought of bringing the Appellant
to more suffocation under the legal clutches by coming forward with the first cut theory and about which he was able to ward off the same. But,
however, one has to note that the opinion of PW-6, the Doctor who treated P.W.1, in this regard is that the cut dealt by the Appellant was on the
left leg of P.W.1 and that the said injury was grievous in nature, but it may not be always necessary to lead to death or fatal. It may some times
likely to cause death. In view of the non-positive nature of the evidence spoken to by the medicos and in the context of no positive evidence
adduced by the prosecution to identify the animus of the accused/Appellant, I am at every difficulty to hold that the prosecution has established the
guilt of the accused for the offence u/s 307 IPC. But, however, having regard to the aftermath of the injury caused to P.W.1 and his left leg was
completely severed by the single cut dealt by the Appellant, I am fully constrained to hold that his complicity in causing such injury clearly landed
him in the teeth of 326 IPC for the simple reason that the said injury is grievous in nature.
In the light of the modification of the conviction recorded against the Petitioner from one for the offence u/s 307 I.P.C. to the offence u/s 326
I.P.C., the sentence also has to be necessarily modified accordingly. It has to be noticed that the left leg of P.W.1 was severed by a single cut dealt
with by the Petitioner, which ultimately resulted in the severance of the left leg just below the knee causing a permanent disfiguration in one of the
necessary and vital limb of P.W.1 and as a consequence thereof, it appears from the appearance of P.W.1 in the open court, a wooden leg has
been fixed just to facilitate to move about. In the said context, with great restraint, I feel that the ends of justice would be met properly if I impose
on the Appellant a sentence of rigorous imprisonment for a period of three years to be undergone and accordingly, I modify the sentence also to a
period of three years rigorous imprisonment for the offence proved u/s 326 I.P.C. No other points were argued before me. Except the one above
referred by me, I do not come across any serious lapses or legal impediment or impropriety inherent in the prosecution case.
In the result, while recording the above modification of the conviction and sentence, the appeal is disposed accordingly.