Sampath and Others vs State

M. Raviraja Pandian, J.—The above Criminal Appeal u/s 374(2) of Criminal Procedure Code is directed against the judgment of the learned Sessions Judge. West Thanjavur dated 18.7.1989 and made in S.C.No.37 of 1986, wherein the appellants herein were convicted and sentenced to imprisonment for two years and seven months for the offence u/s 148 IPC. and life imprisonment for the offence u/s 302 read with Section 34 I.P.C.

We heard the learned counsel appearing for the parties and their submissions are considered hereafter.

The case of the prosecution is that on 30.8.1985 at about 6.00 p.m., the deceased Arumugam while travelling on a bicycle, was attacked by all the accused at Swamimalai-Kumbakonam road, opposite to Mukkraipillair temple with a traditional weapon known as "Arruval" and whereupon the deceased Arumugam succumbed to the injuries inflicted upon him by the accused. The victim died at the place of occurrence itself and his severed left hand was recovered on 31.8.1985 at about 8.00 A.M. from the house of the first accused. Two of the accused were arrested and the remaining surrendered before the court.

The prosecution in their task of substantiating the case beyond doubt, examined 14 witnesses, marked 21 documents but no evidence was adduced on behalf of the appellants in their defence.

The prime witnesses examined by the prosecution are P.Ws.l to 3 who are eye witnesses to the assault on the deceased. It is not a fact in dispute that all the three witnesses mentioned above are related to the deceased Arumugam.

P. W. 1 Karupayyan, the elder brother of the deceased in his evidence has narrated the sequence of the attack in specific detail as to the approach of the accused from either side of the road and the sudden attack launched upon the deceased Arumugam with Arruval while he was proceeding on a bicycle near Mukkraipillair temple in Kumbakonam Swamimalai main road. The said witness has also deposed as regards the injury inflicted by each of the accused on the body of the deceased as follows:-

The first appellant inflicted an injury on the left leg of the deceased, the third appellant inflicted injury below the right knee, the second appellant inflicted injury on the left hand, the fourth and sixth appellants inflicted injuries on the right hand, the seventh appellant inflicted injury on the head. The fifth appellant inflicted injury on the right shoulder, right hand behind the chest and head and lastly the appellants 1 to 3 inflicted injuries on the left hands by a repeated act

P.W.1 further deposed that the first accused severed the left arm of the deceased and ran away towards north and other accused had followed him and fled away from the scene of occurrence.

P.W.2 who is the elder sister of the deceased has also deposed in her evidence with regard to every aspect of the occurrence in a almost similar version and also identified all the accused in relation to infliction of injury by each of them.

P.W.3 who is the father-in-law of P.W.1 has spoken about the incident though not in a detailed fashion, and the manner in which the incident had taken place. During the course of his testimony, P.W.3 also identified the accused excepting third accused.

P.W.4-Pakiyam in her evidence deposed that on hearing the exhortation of P.Ws.l and 2, she came out and found them wailing and that the left arm of the deceased was missing. The prosecution treating P. W.4 as hostile, cross examined with regard to her statement as an eye witness at the time of investigation by the police. Anyhow, the evidence of P. W.4 is worthy of credence at least to the extent of confirming the presence of P. Ws. 1 and 2 at the scene of occurrence. Thus, we find that the occurrence of the incident has been established and proved by the prosecution beyond reasonable doubt, without there being any material contradictions in the testimony of the above said witnesses.

However the learned counsel Ms. Uma Venkataraman appearing for the first appellant would contend that the eye witnesses examined on the side of prosecution were all related to the deceased Arumugam and that there was no independent witness examined inspite of the fact that the incident had occurred in a place surrounded by houses and shops. Such a contention is quite untenable for two reasons. Firstly, having thoroughly gone through the oral evidence of P.Ws. l to 3, and the other evidence in corroboration of the said witnesses, we are'' placed beyond doubt that P.W. 1 to P.W.3 were really present at the time of occurrence of the incident and they are competent to testify the same before the Court. In the fitness of things, the prosecution case cannot be faulted., or held to be de-established by the fact that no independent witnesses were examined to establish the incident. Secondly, for the mere reason of P.Ws. 1 to 3 being related to the deceased, when there is nothing strongly manifest in their evidence to discredit the quality of their testimony their evidence has to be accepted. In view of the foregoing, we are inclined to accept the finding of the Sessions Judge on this aspect of the matter.

P.W.5 who is the father of the deceased Arumugam and P.Ws. l and 2 have in their evidence spoken to about the hostilities that existed prior to the attack on the deceased as between his family and family of Manickam, the father of first appellant. He also mentioned about pendency of a criminal case against him and his son viz., P.W.1 and the deceased for an alleged assault on the accused and another criminal case instituted by him against the accused for an alleged assault on his son, wife and him. As a matter of fact, he says that the hearing of the case was also posted on the day prior to this incident on 30.8.1985. In this regard, P.W.1 also admits about the earlier cases, but has denied the other suggestions impeaching his conduct by making reference to certain earlier incident aggressive in nature. From the above version, their is no gainsaying the fact that the family of the deceased Arumugam and the accused were breeding hostile attitude towards each other and continued unabated even at the time of assault launched upon the deceased. Therefore, we are affirmed in our view as to the existence of motive in the minds of the first accused and fourth accused and the accused together have nurtured a common intention to wreck vengeance on the deceased and his family and also successfully carried into execution.

P.Ws.6 to 9 are officers who have deposed about the events that took place in the course of investigation and the mahazar recorded evidencing the recovery of material objects, identification and seizure of materials at the scene of occurrence and also regarding the action initiated by the police with the help of sniffer dog named "Prince" to recover the severed left arm of the deceased. According to the prosecution case, the severed left arm of the deceased was traced out by "Prince" the Sniffer dog in a hen stack'' located in the house of the first accused and recovered under Ex.P.5, mahazar recorded in the presence of two witnesses. Further, the weapon used by the seventh and sixth accused were recovered under mahazars recorded which are marked as Exs.P.6 and P.7.

The Investigating Officer who was examined as P.W. 14 has deposed about the various stages of investigation conducted by him. recovery of weapons material objects from the house of sixth and seventh accused on the basis of their confession recorded as Exs.P.20 and P.21 which is corroborated by P.W.7. the Village Administrative Officer. The counsel for the first accused sought to point out to us the contradiction that exists in the oral evidence of P.W. 14 wherein he has admitted that he is not aware of the report in Ex.P.8 and that he has not seen it either. The above referred Ex.P.8 on a perusal shows that it is a report submitted by the Sub-Inspector-R.P.F., Kennel area informing the details regarding tracing out of the severed left arm of the deceased. The prosecution in support of their allegation as to the recovers also examined the handler Gunasekaran as P.W.9 who speaks about the recovery of the severed left arm under mahazar recorded by the Investigating Officer in Ex.P.5. The report under Ex.P.8 appears to be a procedural formality to be followed as and when a sniffer dog is taken out for search and recovery by submitting a report intimating the results achieved therefrom. In fact, the Investigating Officer has accompanied the handler and the dog throughout and on tracing of the severed left arm. the same has been recovered under a separate mahazar prepared by the Investigating Officer in Ex.P.5 in the presence of two independent witnesses. Therefore, we are unable to subscribe much significance to Ex.P.8 in relation to the oral evidence of P.W. 14 in that regard Further, the reference to recover of the severed left arm made as from the house of the first appellant is in variance with oral evidence of the witnesses present at the time of recovery, that it was traced out in the hen stack located in the premises of the first appellant cannot be treated as material contradiction so as to disbelieve the entire episode of recovery of the severed arm and therefore, the contention of the learned counsel for the first appellant is bereft of any force or substance.

As regards the physical conditions of the deceased and the injuries found upon the body of the deceased, the doctor who conducted autopsy of the deceased was examined as P.W.12 and he submitted his postmortem report in Ex. P. 11. A perusal of the said Exhibit reveals that there were in all 14 external injuries found on the body of the deceased and out of them, only injury No.5 and 12 are grievous in nature and the others as simple as confirmed by P.W. 12. He also states that the injuries would have been inflicted by use of a weapon like Arruval and the material objects marked as M.Os.2 and 3 could be the weapon used in causing the above said injuries. Further, the said witness also says that excepting injury Nos.6. 8 and 9 all other injuries are horizontally incised wounds. Injuries 5 and 12 are cut injuries to the bone deep. As per his report, he has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. Further, he also deposed that the severed left arm belonged to the body of the deceased and the report to that effect has been marked as Ex.P.12.

On the basis of the above medical report, the learned counsel Mr. John Satyan appearing for appellants Nos.2 to 7 would submit that injuries inflicted upon the deceased having proved to be only simple injuries barring injuries No.5 and 12, the accused cannot be attributed with the knowledge that those injuries were likely to result in death or attributed with any common intention to cause death of the victim in as much as the injuries were not found to be inflicted on any vital part of the body and consequently, the accused cannot be punished u/s 302 of IPC. But only u/s 304 Part-II of I.P.C. In support of such a contention, the learned counsel cited the decision in State of Punjab vs. Balkar Singh and others reported in (1998 S.C.C.(Cri) 399) wherein it has been held that none of the eleven injuries caused on the deceased by itself found sufficient to cause death in the ordinary course of nature. None of those injuries inflicted on a vital part of the, body. Death caused by cumulative effect of injuries and hence the offence fall u/s 304 Part-II and not Section 302 I.P.C. The other decision he cited in Subran alias Subramanian and others vs. State of Kerala reported in 1993 Criminal Law Journal 1387 wherein the Hon''ble Supreme Court has held that the injuries inflicted by the accused are not on vital part and not sufficient in ordinary course to cause death. However, accused can be attributed with knowledge that such injury was likely to cause death of the deceased.

We are also in agreement with the contention put forth by the learned counsel Mr. John Sathyan that the present case would fall u/s 299 I.P.C. for another reason that the accused have apparently not chosen to inflict any injury on any vital part of the body of the deceased and all the injuries were found to be concentrated on the arms, shoulder and leg apart from two injuries behind the head. Moreover, the first appellant, as deposed by the eye witnesses and others were only keen in amputating the arm more than inflicting any injury indiscriminately on the body of the deceased, particularly on any vital part which is a definite indication as to the absence of any intention to cause death of the victim Arumugam.

The other decision relied on by the learned counsel for appellants No.2 to 7 is the decision in Kartar Singh and Others Vs. State of Punjab, . In the said decision, the Hon''ble Supreme Court after taking into consideration of the facts that were before it especially with regard to the fact that all the injuries were found to be lacerated injuries on legs excepting one incised injury on the skull of the deceased, altered the conviction from Section 302 read with 149 to Section 326 read with 149 IPC. We are unable to follow the said decision as directly applicable to the facts of the case on hand for the reason that the injures placed as found by the Supreme Court and in the present case, we find that the two of the injuries were reported to be grievous in nature and the severance of the left arm is also grave in nature In the facts and circumstances, we arc of the opinion that the decision reported in 1933 Cri. L.J 1387 can safely be applied.

On the aspect of common intention, we are undoubtedly of the view that all the appellants had entertained an intention to assault the deceased which is borne out by the approach of the accused from either side of the main road which is conclusive enough to establish that premeditated decision to commit the act of crime. Hence, we arc of the view that the evidence on record as established by the prosecution and in the light of the decision of the Supreme Court, this case attracts an offence u/s 299 read with Section 34 IPC punishable u/s 304 Part-II and accordingly the Judgment of the Sessions Court is modified and charge the accused with a lesser offence of culpable homicide not amounting to murder read with Section 34.

In respect of conviction of the accused, u/s 148 I.P.C. having regard to the establishment of the assault by the accused armed with deadly weapons by the prosecution beyond doubt, we are inclined to confirm the finding of the Sessions Judge rendered in this regard.

The learned Government Advocate Mr. Gunasekaran supports the case of the prosecution and in that regard has cited the decision in Shivaram and another vs. State of U.P. reported in 1998 S.C.C. (Cri) 278) The same is to the effect that the evidence of close relative of the deceased cannot be discredited on the ground of their relationship with the deceased. However, the court must scrutinise their evidence with care and caution It has also been held in view of the common tendency of outsiders not to get themselves involved in a criminal case, which would be quite natural that no independent witness would come forward to assist the prosecution, in a case of brutal mass murder We have already discussed about the credibility of the evidence of P.Ws. 1 to 3 and our few is in line with the ratio laid down by the Hon''ble Supreme Court.

The other decision relied on by Mr. Gunasekaran is Amarjit Singh and others vs. State of Punjab reported in 1993 S.C.C.(Cri) 509. wherein it is laid down in respect of an offence committed by an unlawful assembly in pursuance of their common object, the plea that some other accused has not used their arms cannot be material and in the circumstances held that the participation of each of the accused is sufficient to attract Section 149 of IPC. In so far as the present case is concerned, as we have already adverted to above that all the accused within the common intention inflicted injuries on the deceased. The prosecution also relied on the decision in Banwariam and others vs. State of U.P. reported in 1998 S.C.C. Cri 835 wherein the Supreme Court has held that proof of over-tact is not essential and it would suffice if the accused were found to be members of an unlawful assembly and they would be vicariously liable for unlawful activities of the other members of the said assembly, thereby attracting Section 149 of I.P.C. In the case on hand, the prosecution has gone to the extent of proving the overtact of each of the accused.

For the foregoing reasons, we hereby confirm the judgment of the Sessions Court in respect of the offence punishable, u/s 148 I.P.C. and the sentence imposed therefore .In respect of the second charge punishable u/s 302 read with 34 IPC, we hereby alter the offence as one punishable u/s 304 Part-II read with Section 34 IPC. Considering the nature of the brutal attack we accordingly sentence all the accused to undergo imprisonment for a term of 10 years. Further the appellants are ordered to serve out the sentence imposed on them on the above said two counts concurrently. The appeal is partly allowed in the above terms.

As seen from the records, the appellants No.4 to 7 have been enlarged on bail by tins court on 21.8.1989 in Crl.M.P.No.9081 of 1989 and A2 &A3 were released on bail subsequently therefore the bail bonds executed by them and shall stand cancelled. In respect of the accused Nos. l, it is seen that several bail applications have been rejected by this court on various dates and therefore the sentence imposed under this judgment has been served out by A1 he is ordered to be released forthwith.