Selvaraj and Sesuraj vs State

Arunachalam, J.—A.1 and A.2 in S.C.No.78 of 1985 on the file of the Court of Sessions (Anna District), Dindigul are the appellants in C.A.No.59 of 1985. A3 in the same Sessions case is the appellant in Crl. Appeal No. 865 of 1985.

For having caused the death of Francis, husband of P.W.1, Nirmala at or about 5.15 p.m. on 31.3.1985 at Pushpapuri, A.1 was convicted u/s 302 Indian Penal Code simplicitor, and sentenced to undergo imprisonment for life. A.2 and A.3 were convicted for having abetted the commission of murder of the deceased by A1 and each one of them was sentenced to undergo imprisonment for life. A.2 is stated to have caught hold of the right hand of the deceased while A.3 is alleged to have caught hold of the left hand of the victim. A.1 is stated to have inflicted one single stab on the right side of the abdomen of the deceased with a suri knife (M.O.1) Deceased succumbed to the injury sustained by him at or about 5.50 p.m. at Dindigul Government Hospital, on the same evening.

The prosecution case in brief will have to be stated for the disposal of these appeals. P.W.1 Nirmala was Living along with her husband deceased Francis at Pushpapuri village. The deceased owned a sugar - canefield. On 28.3.1985 at or about 1 p.m. when P.W.1 and her husband went over to their sugar-cane field, they found all the accused cutting sugar canes. P.W.1 and the deceased warned them not to indulge in committing theft of sugar cane any more. The accused were also told that in the event of repetition of the crime, a report would be preferred at the concerned police station. On 31.3.1985 there were some guests in the house of P.W.1. At or about 3 p.m. P.W.1 and the deceased went over to the sugar-cane filed, where they had kept ready sugar-canes for being loaded in a lorry. They found all the three accused removing sugarcanes. Deceased shouted at them stating, that even on an earlier day, he had warned that he would report their action to the police, if they indulged in repetition of their act. All the accused shouted in return P.W.1 pacified both parties and warned the accused not to commit theft anymore. After persuasion, she took her husband back home.

At or about 5.15 p.m. on the same evening P.W.1 along with her husband, the deceased and son Sabarimuthu Raja (not examined) proceeded to the shop of Ganapathy Chettiar (not examined) situated at Pushpapuri. They noticed all the three accused standing opposite to the shop of Ganapathy Chettiar. A.1 beckoned the deceased to come near him stating as follows:

Deceased went towards A.1 A1 due to incapacity in one leg, used to walk with the aid of a stick. A.2 is the brother of A.1. There appears to be no relationship between A.3 and the other two accused. As soon as the deceased want towards A.1, A.2 and A.3 exclaiming

caught hold respectively of the right and left hand of the deceased. A.1 pulled out a knife from his waist and shouting stabbed on the right abdomen of the victim, with the knife M.O.1. After the attack A.1 and A.2 left the scene on a cycle, to be followed by A.3 on a different cycle P.W.2 Gnanaprakasam, a distant relative of the deceased, who had come down to Pushpapuri from his village Sirunaickenpatti, witnessed the occurrence. P.W.3 Kathiresan, owner of a tea shop, situated north of Ganapathi Chettiar''s shop at Pushpapuri, also witnessed the incident.

P.W.6 Arulanandam, a resident of Pushpapuri, who was coming towards the shop of Ganapathy Chettiar on hearing the hue and cry, went towards the scene place and found the deceased with a stab injury. The deceased was being held by P.W.1, her son and another. P.W.6 proceeded to the nearby medical shop and from there caused a telephone call to be made to the Dindigul Taxi Stand, to send a taxi immediately to Pushpapuri. As soon as the taxi arrived, P.W.6 helped P.W.1 and others to take the victim to the Government hospital, Dindigul.

P.W.4 Dr. Perumal examined Francis at 5.50 p.m. on 31.3.1985 and found him dead. He noticed on the dead body an eliptical incised wound, just below the right costal area. Omentum had come out. Body was sent to the mortuary. Ex.P.2 is the copy of the Accident Register. The injury found on the victim was possible by a stab with M.O.I.

P.W.1 thereafter went over to Ambathurai police station situated 8 kms away from Dindigul and narrated the details of the occurrence to P.W.10 Periyasamy, then Sub Inspector of Police. Ex.P.1 is the statement of P.W.1 recorded by P.W.10. On Ex.P.1, P.W.10 registered crime No. 41 of 1985 u/s 302 Indian Penal Code, prepared express reports and forwarded the same to the concerned authorities. Ex.P.7 is the copy of the first information report sent to the Magistrate. The Magistrate had received Ex.P.7 along with Ex.P.1 at 11 p.m. on the very same night.

P.W.12 Ramachandran, Inspector of Police, Ambathurai, on receipt of the express first information report at 8 p.m. on 31.3.1985, took up the case for investigation and soon thereafter reached the scene of occurrence at 9 p.m. At the venue, he prepared the observation Mahazar Ex.P.4 and the scene sketch Ex.P.8. He seized blood stained earth (MO2) and sample earth (MO3) under mahazar Ex.P.5. At the hospital mortuary, he conducted inquest over the dead body of Francis, between 6 a.m. and 8 a.m. on 1.4.1985 during the course of which he examined P.Ws. 4 and 5. Ex.P.9 is the inquest report. After inquest, he entrusted the corpse to police constable Raja (P.W.9), with a requisition, to be taken to Dr. Gopalakrishnan (P.W.5) for the conduct of post mortem P.W.5 Dr. Gopalakrishnan commenced autopsy on the dead body at 1.30 p.m. on 1.4.1985 and found the following external injuries.

1) An abrasion 2 cm x 1 cm over right side forehead.

2) An abrasion 2 cm x 1 cm just lateral to right eye, and

3) An incised wound 2.5 cm x 1 cm over the right side of abdomen above the umblical level. Omentum was protruding through the wound.

On exploration, the direction of this injury was medially and slightly upwards. Internally there was haematoma and laceration of the mesentry 5 cm x 5 cm. There was collection of 500 Ml of blood in the peritoneal cavity. In the opinion of the doctor, the deceased would have died 18 to 22 hours prior to autopsy due to shock and haemorrhage, as a result of injuries sustained to the mesentry. Ex.P.3. is the post mortem certificate. Injuries 1 and 2 are possible by coming into contact with a rough surface.

Injury No. 3, with its corresponding internal injuries, was possible by the user of M.O.1. Injury No. 3, coupled with the corresponding internal injuries, was necessarily fatal.

P.W.12 arrested A.1 and A.2 A1 2 p.m. on 4.4.1985 near Kallupatti bridge in the preserve of P.W.8. A.1 volunteered a statement, the admissible portion of which is Ex.P.10. From his waist. A.1 produced M.O.1 knife, which was seized under Mahazar Ex.P.6 At 9 p.m. on the same night, P.W.12 arrested A.3 at Ayyampatti. P.W.11 Gopalakrishnan, clerk attached to the Court of Judicial II Class Magistrate, No. 2, Dindigul, has spoken about receipt of M.O.1 in his Court on 6.4.1985 and the receipt of Mos. 2 to 5 on 4.5.1985. After completion of investigation, P.W.12 Laid the final report before the Committal Court on 27.5.1985.

When the accused were examined u/s 313 Cr.P.C. to explain the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. They did not choose to adduce any evidence in defence. The learned trial Judge, on meticulous appreciation of the oral and documentary evidence, while rejecting the arrest and recovery evidence and commenting upon the carelessness of P.W.12 in not having sent the material objects for chemical examination, held that the other evidence was overwhelming to safely convict all the accused for murder of Francis. As stated earlier, all the accused were convicted for murder either simplicitor or with the aid of Section 109 Indian Penal Code and each one or them was sentenced to undergo imprisonment for life.

Mr. N. Natarajan, learned Senior Counsel appearing on behalf of the appellants in C.A. No. 59 of 1985 and Mr. M. Ravindran, learned Counsel representing the appellant in C.A. No. 865 of 1985, contended that the investigation was clouded and there was no explanation as to what had happened between 5.15 p.m. and 9 p.m. on the occurrence day. There could very well have been an earlier first information report which had been suppressed. They then pointed out that the statements of eye witnessess had reached the Magistrate only on 2.4.1985 at 5.30 p.m. and such delay would probablise the non-availability of the statements of those witnessess at an earlier point of time. It was, therefore, contended that there should be some acceptable corroboration before the evidence of P.Ws.1 to 3 could be safely acted upon. In passing, it was argued that there was a discrepancy between the contents of the first information report and the oral evidence, if the accused had left the scene on a single cycle or two cycles. The non-sending of M.O.1 knife and the blood stained earth M.O.2 was commented upon and the learned Counsel contended that the said lacuna would cast a substantial doubt on the truth of the prosecution case, for, neither the scene of offence nor the weapon of offence, had been connected with the accused.

According to the learned Counsel, there was no strong motive, to commit the murder of the deceased. In any event, A.2 and A.3 cannot be found guilty for abetment of murder.

Mr. B. Sriramulu, learned Public Prosecutor while countering the arguments of the defence Counsel, submitted that the accused had grievance against the deceased, since the latter had chastised them for having committed theft, on two earlier occasions. The evidence of P.Ws.1 to 3 was so natural, that it would be idle to contend, that further corroboration would be required before acceptance of their versions. P.Ws.1 to 3 were natural witnesses and P.W.3 was totally an independent witness. Ex.P.1 is the only first information report and there was no reason to suspect, that there was any information recorded earlier to Ex.P.1. Though there were certain lapses in the investigation, they do not go to the root of the matter, sufficient enough to exonerate the accused, from this crime. He finally argued that the accused had come together to the scene and had left the scene also as companions. A.1 had stabbed the victim after luring the latter to come near him by uttering sweet words, when A.2 and A.3 caught hold of him to facilitate killing by A.1. Even if there was any doubt about the application of the provisions of Section 109 Indian Penal Code, provisions of Section 34 Indian Penal Code can always be invoked, though a charge had not been framed, since the accused had not been prejudiced.

Both the Counsel placed certain decided cases for our consideration relating to abetment and the possibility of recording a conviction with the aid of Section 34 Indian Penal Code, though a charge had not been framed for abetment. We will consider the case law, at the relevant stage.

Deep-seated animosity is not the cause for murder of Francis. The accused appeared to have attempted to commit theft of sugarcane belonging to the deceased, on two earlier occasions. P.W.1 personality knew of the attempted stealthy removal of sugarcane on both the occasions, by the accused. Since the accused and the deceased belonged to the same village, and the accused had not succeeded in achieving their object in full, obviously the deceased and P.W.1 had not chosen to set the law in motion to have the accused punished. The attitude of P.W.1 shows, that she was more for a compromise with the accused and not for a quarrel for, in a small village tempers can run high, even on petty matters. It cannot be overlooked that the accused must have been offended by the warnings administered by the deceased, though it will be very difficult to conclude, that on that score they could have planned to do away with the deceased. The attempted commission of theft of sugarcane crops by the accused on two occasions has been spoken to by P.W.1, and it has not been seriously challenged. Even in the first information report recorded from P.W.1, at or about 7.30 p.m. on 31.3.1985, reference has been made about the attempted commission of theft on two occasions by the accused. On the first occasion the accused had almost succeeded in committing theft of ten sugar canes. The stealthy acts of the accused had taken place inside the sugarcane field of the deceased and therefore it would be odd to expect corroboration, to lend assurance to the evidence of P.W.1. There is no evidence, that there was any cause for P.W.1, to pitch upon the accused as the assailants of the deceased, on the evening of 31.3.1985. It can, therefore, be safely taken that the accused were certainly aggrieved against the deceased, who had scolded them on two earlier occasions. In that background, we have to analyse the ocular evidence. Lack of strong motive or even absence of motive, will not be sufficient to exonerate the accused, if the ocular versions is credible and free from doubt.

P.Ws. 1 to 3 are the eye witnessess. P.W.1 ofcourse is an interested witness in that she is the wife of the deceased. P.W.2 cannot certainly fall within the category of interested witness for, he is only an elder brother by courtesy to the victim. P.W.2 was not even a resident of Pushpapuri village. P.W.3 is totally independent witness and he was able to speak about the occurrence, since his tea shop is situated near the venue, where the attack on the deceased had taken place. Courts have consistently held that mere interestedness will not be efficient to discredit the evidence of witnesses, but it could only put the Court on guard to scrutinise their versions with greater care and caution. P.W.1 went along with her husband to the sugarcane field on 28.3.1985 as well as on 31.3.1985 at or about 3 p.m. It appears that they have been moving together and hence there is no surprise that at or about 5.15 p.m., on the occurrence evening, she had joined her husband and son to proceed to the shop of Ganapathy Chettiyar. Merely because, there were farm servants working under P.W.1 and they also used to do odd jobs, it cannot be held that the deceased and P.W.1 could not have proceeded to Ganapathy Chettiar''s shop. The scene of occurrence cannot basily be doubted, merely because blood stained earth stated to have been seized from the scene of occurrence had not been sent for chemical analysis, by the Investigating officer. As rightly pointed out by the learned Sessions Judge, there has been callous negligence on the part of the investigating officer. In certain cases, absence of clinching evidence to fix the scene of occurrence may possibly be tolerated to the non-availability of the blood stained earth. Such a contingency does not loom large in this prosecution. P.W.5 the medical officer is very certain that externally no profuse bleeding was possible, as a result of the stab on the abdomen of the victim. He was also able to notice collection of 500 ml. of blood in the peritoneal cavity. The evidence, of P.Ws. 1 to 3, also shows that the deceased was held even while he was in the process of falling down, or just as he had fallen down. P.W.1 has further deposed that with a piece of cloth, she tied the abdomen injury to prevent the omentum from fully coming out. The shirt of the deceased was also stained with a very little blood. It may be that a few drops of blood had fallen down at the scene and that is how, it was possible for the investigating officer to seize M.O.2 blood sustained earth from the spot of attack. Basing on the lapse of the investigating agency, the scene of occurrence cannot be sought to be shifted to the sugarcane field, especially when we have the positive evidence of P.W.3, a shop keeper adjacent to the shop of Ganapathy Chettiar, which affirms that the occurrence had taken place opposite to his shop. We are unable to doubt, that the scene of occurrence had been sought to be shifted for as we have already stated at the outset, deepseated animosity between the parties is not the cause for this murder. Hence this argument of the defence counsel cannot be accepted. This is one of those simple and straight forward cases, where the accused can be held liable, whatever be the offence committed by them, if the ocular evidence is held to be trustworthy and doubt-free. P.W.1 had been cross-examined in extense. She has described the fatal attack on her husband, very graphically. Merely because she has stated that after the occurrence the accused left the scene on a cycle in the first information report, while choosing to depose that A.1 and A.2 left on one cycle while A.3 followed them on another cycle, it cannot be concluded, that she was uttering falsehood. It will be very odd to expect P.W.1 to think of singular and plural, while preferring the first information report, when she was in agony, having lost her husband. We cannot overlook that the first information report was recorded soon after the medical officer had pronounced the deceased dead. The first information report need not contain every minute detail for, the object of the first information report is to facilitate investigation and to obtain information at the earliest point of time, when the occurrence is fresh in the mind of the information and further when there could be no scope, for an embellished version, being trotted out. P.W. 6 had arranged for a taxi which had arrived at the scene within about 15 minutes. P.W.1 was anxious to save her injured husband who was not dead at the scene. She had taken her husband in the taxi along with others to Government hospital, Dindigul. She had travelled a distance of about 8 kms to reach the hospital. The doctor had pronounced the deceased dead at 5.50 p.m. Thereafter P.W.1 had to console herself before deciding to set the law in motion. It will be farfetched to suggest, that P.W.1 had chosen Ambathurai police station, without complaining at the out-post police station at Dindigul, only with a view to gain time and to choose the persons, who could be implicated in the crime. There is no dispute, that Ambathurai police station is the jurisdiction police station and was situated at a distance of 8 kms from Dindigul. The brother-in-law of P.W.1, had told to P.W.1 that a complaint ought to be given at that police station. She had proceeded in a taxi to Ambathurai police station and had reached the police station at 7.30 p.m. It will not be possible for P.W.1 to explain every action of hers, minute by minute, before setting the law in motion, for the circumstance in which she was placed at 5.50 p.m. in the hospital, having lost her husband, must be comprehended. There is no sinister delay in the genesis of the first information report. There was none-else present with P.W.1, who had a grievance against the accused. Ex.P.1 contains all relevant details not only about the occurrence proper but also about the earlier attempts of the accused to commit theft of sugar cane. The evidence of P.W.1 in court is fully in tune with the averments made in the first information report. The first information report recorded at 7.30 p.m. had reached the Magistrate on the very same night at 11 p.m. After recording of Ex.P.1, printed copies of the first information report, will have to be prepared, before its despatch to the Magistrate. We are unable to doubt the sanctity of Ex.P.1 or its genesis and we hold that it had its birth with such promptitude as one could expect and that there could have been no other information earlier to Ex.P.1 Learned Counsel for defence, wanted us to presume, that there must have been an information earlier, only because there was a time gap of two hours and fifteen minutes, between the occurrence proper and the recording of the first information report. We have discussed this aspect in extenso and we are unable to agree with the defence Counsel, that Ex.P.1 will have to be rejected or a suspicion has to be entertained on the possible availability of an earlier information which has been sought to be suppressed. Subsequent conduct of P.W.1 soon after the incident, is fully in line with normal human expectations. We have no hesitation in accepting the evidence of P.W.1 as totally true and absolutely blemishless.

P.W.2 is a resident of Sirunaickenpatti, situated some distance away from Pushpapuri. He had come down from his village to Pushpapuri, to take coffee. At or about the time of occurrence, he was engaged in conversation with Paul Raj and Irudaya Raj (both not examined), at the bus stop, opposite to the shop of Ganapathy Chettiar. He had noticed P.W.1 the deceased and another proceeding towards the shop of Ganapathy Chettiar. He was able to further witness all the accused''s standing on the road, opposite to the said shop and the persuation made by A.1, to get the victim nearer to him, before the stabbing proper took place. He was present at the scene, till the Investigating Inspector arrived and he was also one of those who was aware of the victim having been removed to the hospital, in a taxi fetched by P.W.6. We are unable to find any material brought out during his cross-examination, which would cast any doubt on the credibility of his evidence, His presence at the scene cannot be doubted. He is a distant relation of the deceased. That does not make his evidence suspicious. The evidence of P.W.2 fully corroborates the evidence of P.W.1. We accept his evidence as well.

The evidence of P.W.3 would really vouchsafe the happening of the occurrence as alleged by the prosecution, beyond any controversy. The shop of P.W.3 abuts the shop of Ganapathy Chettiar, on the northern side. Occurrence had taken place almost opposite to his lea shop, with a slight deflection. There was not much crowd in the locality, since the occurrence was on a Sunday. P.W.3 had seen the entire occurrence and he has fixed the presence of P.Ws.1 and 2 at the scene. The evidence of P.W.3 is so natural that it inspires confidence. The versions of P.Ws.1 to 3 are mutually corroborative. Further the medical evidence furnished by P.W.4, the doctor who had seen the victim initially and P.W.5 who had conducted autopsy, fully confirm the eye witness account of the incident. Both the doctors are specific that M.O.1 should have caused the fatal injury.

An argument was sought to be built up on the basis of the evidence of Dr. Perumal (P.W.4), that he had sent information to the police, about the deceased having been brought dead to the hospital. The information was sent to the Dindigul Town North Police Station and the police arrived and enquired. Therefore, it was argued that Dindigul Town North Police Station must have had earlier information about the occurrence, prior to Ex.P.1. P.W.4 had done his duty in forwarding information to the local police station. We have no reason to doubt the evidence of P.W.1, that she proceeded from the hospital to Ambathurai police Station. It is not the case of P.W.1, P.W.4 or the accused that P.W.1 was enquired. In the usual course, Dindigul Town North Police Station would have forwarded the death intimation to the jurisdiction police station which is Ambathurai police station. These are the areas, where the Investigating officer ought to have enquired and spoken about, and produced the information sent by PW.4 to Dindigul Town North Police Station. However, this Lacuna on the part of the investigating officer does not merit the argument, that the evidence of P.Ws.1 to 3 will have to be rejected, only on this score. The sequence of events is so well and closely knit that it would be difficult to hold that the occurrence could not have taken place as portrayed by the prosecution. We are in entire agreement with the learned trial Judge, that the recovery evidence is worthless. P.W.12 must have placed on record the requisition sent by him to the Magistrate to forward the material objects seized, for analysis to the laboratory, if he had in fact sent those materials. The Court record does not show that any requisition had been received from the investigating officer, by the Court. The lapses on the part of P.W.12 certainly deserve to be condemned but those lapses do not tend to affect the truth of this prosecution, for the evidence is overwhelming clinching and acceptable. Investigation Statements of P.Ws.1 to 3 ought to have been despatched promptly to Court, but this negligent delay has no sinister significance, for Ex.P.1, held genuine, contains all salient details, inclusive of the presence of P.W.2.

Once we have accepted the reliable evidence of P.Ws.1 to 3, the presence of A.1 to A.3 at the scene, and the attack on the deceased by A.1, must be taken to have been fully established. As far as A.1 is concerned, there cannot be any doubt that he had caused the death of the deceased by inflicting a stab on his abdomen, which has been opined to be necessarily fatal by the medical officer (P.W.5). The nature of injury found on the victim is an indication of the mens rea of A.1 It is not as though the stab was inflicted in the course of any quarrel or fight with the deceased. It was A.1 who obviously has some incapacity, had lured the deceased to come near him, to facilitate his attacking the victim with much more ease. The learned Sessions. Judge has correctly found A.1 guilty of murder. We do not have a different view to take. We confirm the conviction and sentence imposed on A.1 under Charge No. 1.

As far as A.2 and A.3 are concerned, though prima facie it appears that this stabbing incident had taken place as soon as A.2 and A.3 had caught hold of the victim, we are bound to scrutinise the evidence in every minute detail, to find out, if in fact A.2 and A.3 would be liable for abetment of murder. It is not uncommon in cases of murder, where opponents are sought to be implicated with an ulterior motive, by assigning over facts of catching hold of the victim, more so in cases of faction, which lead to murder. This endeavour to implicate every one in the opposite faction could easily be seen. However, in the instant prosecution, we are unable to hold, that the role of catching hold of the victim, has been assigned to A.2 and A.3 by P.W.1 with ulterior motive. Even then to record a conviction with the aid of Section 109 Indian Penal Code, the prosecution will have to satisfy, that the role played by A.2 and A.3 would come within one or more of the clauses contemplated u/s 107 Indian Penal Code. Firstly u/s 107 will not be applicable, for it is not the prosecution case that A.2 and A.3 instigated A.1 to stab the deceased. Clause secondly will have to be excluded for, that relates to a conspiracy between all the accused and the act or illegal omission taking place in pursuance of such conspiracy. If at all the prosecution can seek to bring to their aid, it is only clause thirdly of Section 107 Indian Penal Code, which relates to intentional aid by any act or illegal omission the doing of that thing. What would amount to intentional aid, will always be a question of fact. To amount to intentional aid the act committed by the concerned accused must be intended to have that effect. The question before us is whether A.2 and A.3 intended to facilitate A.1, to stab and kill the deceased and in fact facilitated the commission of the grave crime by A.1 If A.2 and A3 could not have been aware, that A.1 possessed a knife for obviously the knife had been removed suddenly from his waist to stab the victim, can it be safely held, that by the act of catching hold of the victim they intended to aid the commission of murder by A.1. It appears feasible, that the acts of A.2 and A.3 can be quite independent, without any nexus to the act of A.1, which he had independently done. Even if we are prepared to hold that there was a grant of aid by A2 and A3, mere grant of aid, without awareness of the fact that A.1 would commit murder of the deceased, will not be sufficient to make them liable for abetment of murder. In Nethala Pothuraju and others Vs. State of Andhra Pradesh, , the Supreme Court while considering explanation 2 to Section 107 Indian Penal Code, on intentional aid, stated thus:

In order to constitute abetment, the abetter must be shown to have ''intentionally'' aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment, under the third paragraph of section 107.

That was a case where one Violet was alleged to have shouted that Vakil had come. Soon thereafter the other accused who were hiding, came out and confronted the deceased and his companions. One of the accused fired a shot from a point blank range, as a result of which the deceased fell down dead. In that context the Supreme Court expatiated the law on what amount to intentional aid.

Turning to the facts in the instant prosecution, as we have earlier observed, there was no deep-seated animosity between the accused and the deceased, to lead to the commission of murder. Though A.1 and A.2 are brothers, there appears to be no common cause for A.3 to join them. At the best, the evidence will disclose, that all the accused were associated in commission of petty thefts. The scoldings of the deceased, must have necessarily left a grievance in the minds of all the accused. Even at or about 3.00 p.m. on the occurrence evening, the deceased had scolded the accused for repeated indulgement in the commission of theft of sugarcane. The prosecution has not established, that A.2 and A.3, were aware of the possession of M.O.1 the knife, by A.1. It is also not the prosecution case that A.1 was in the habit of always arming himself with a knife. P.W.1 when cross-examined, has stated as follows:

This piece of evidence indicates, that in spite of his nearness, the deceased was unable to note the removal of the knife from his waist by A.1. If that be so, it will not be proper to presume, that A.2 and A.3 must have been aware, that A.1 had concealed a knife in his waist at or about the time of occurrence. Further it is the prosecution case, that A.1 alone lured the deceased to come near him stating as follows:

Only on such persuasion by A.1, the deceased is alleged to have gone towards the accused. It was thereafter that A.2 and A.3 are stated to have caught hold of one or other of the hands of the deceased after exclaiming

The words cannot always be taken in its literary sense, for more often these words are used in villages, as a common place threat, which most often is totally empty. However, the context in which the words were uttered, will have to be found out, for the significance that could be attached to these words would depend upon the context. The earlier words uttered by A.2 and A3 namely why they were being dubbed as thieves, will have to be properly understood for, one of the eye witnesses Gnanaprakasam (PW.2) does not depose that these two accused uttered the words . It is better to extract the evidence of P.W.2 in this context.

\\ It was thereafter, A.1 suddenly pulled out a knife and stabbed the deceased. It is therefore possible to comprehend, that A.2 and A.3 who had grievance against the deceased for his having scolded them as thieves, indulged in hurling abuses. In the process of abusing they had attempted to manhandle him and that accounts for their catching hold of the hands. The act of At was so sudden unexpected, that it cannot be held safely, that the catching hold of the victim by A.2 and A3 was intended to facilitate the commission of murder by A.1 All the eye witnesses are specific that A.1 suddenly removed the knife from his waist and inflicted one stab. Even if there had been more stabs than one and A.2 and A3 continued to catch hold of the victim, it would have been easily possible to conclude, that they had sought to intentionally aid the commission of murder. Such evidence is not available. We have to still find out, if the luring which brought the deceased nearer to A.1 was made with the specific purpose to facilitate A.1, an incapacitated person to stab the victim as soon as the latter came nearer to him, with the help of A.2 and A3, who prevented the escape of the victim, from his clutches. The evidence of P.W.3 puts an end to such an inference being drawn. Even in chief examination, P.W.3 has stated that in the process of calling the deceased to come near him, A.1 also proceeded towards the deceased. If that be so, that was an independent set of A.1, which had no connection whatever to the subsequent catching hold of the deceased by both accused, A.2 and A3. In spite of his incapacity, A.1 who had concealed a knife in his waist, had moved towards the deceased himself, and it was latter that the occurrence had taken place. As we have stated earlier, it happened, that A.1 had stabbed the deceased, while A.2 and A3 had independently abused the victim and had caught hold of him, in the process of manhandling. It will be difficult to assume, that such catching hold was to facilitate the commission of murder by A.1. We are unable to hold, that A.2 and A3 were aware that A.1 would pull out a knife and fatally stab the victim. If A.1 to A3 had, pre-planned to kill the deceased, nothing would have prevented A.2 and A3 getting themselves armed with lethal weapons. It is not the prosecution case, that the deceased was in the habit of visiting the shop of Gnanapathy Chettiar in the evenings and therefore it has to be presumed, that the accused who were aware of such visits had then planned to kill him. There is no evidence of prior concert, and even for development of common intention at the scene, there is total paucity of evidence. The meeting of the deceased, opposite to Gnanapathy Chettiar''s shop, was a totally unexpected event. Though at the first blush, it appeared that catching hold of the victim by A.2 and A3 and the stabbing by A.1, were interconnected, on a careful scrutiny, we are able to visualise, a clear demarcation between the act of A.1 and the overt acts attributed to A.2 and A3. Merely because all the accused had been seen together and they had left in two different cycles after occurrence, it would be unfair to presume, that all the accused must have acted together, in doing away with the deceased, in pursuance of a prior concert. It is quite possible that A.2 and A3 were desirous of teaching a lesson to the deceased, who had abused them as thieves. While appreciating the evidence, we have to keep in our view, the legality of basing a conviction with the aid of Section 109 Indian Penal Code. Once we entertain a doubt, that there can be a clear demarcation between the acts indulged in by A.1 and the other accused, of course sang exaggeraction, we have to necessarily give the benefit of doubt to A.2 and A.3, for as stated by the Supreme Court, intentional aid is active complicity in the crime and it would not be enough, that an act on the part of the alleged abettor happened to facilitate the commission of the crime. Mr. B. Sriramulu, contended that if it was the intention of A.2 and A.3 to assault the victim, they need not have to catch hold of the deceased. In the process of manhandling, how a person would act, would depend upon his own instinct, the manner in which the opponent would react and the other circumstances which were then available. It would be very difficult to hold that an assault must take place only in a particular pattern. If certain salient facts, which we have pointed out earlier, had not existed which in our view would enure in favour of A.2 and A.3, we would not have hesitated in confirming the conviction of A.2 and A.3 for murder of the deceased with the aid of Section 109 Indian Penal Code.

We will now examine of A.2 and A.3 could be convicted for the murder of the deceased with the aid of Section 34 Indian Penal Code, though a charge had not been framed. In Noor Mohammad Mohd. Yusuf Momin v. The State of Maharashtra AIR 1971 S C 886 , the Supreme Court stated thus:

So far as Section 34 Indian Penal Code is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109 Indian Penal Code, on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission

Section 34 Indian Penal Code and Section 109 Indian Penal Code operate in different fields. Section 114 Indian Penal Code, stands on a slightly different footing and in cases where a charge had been framed with the aid of Section 114 Indian Penal Code, it may be possible to record a conviction with the aid of Section 34 Indian Penal Code, even in the absence of a charge. Section 114 Indian Penal Code creates a legal fiction.

In Barendra Kumar v. Emperor , the Following observations were made:

Section 114 is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved and then the presence of the accused at the commission of that crime is proved in addition. Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. The section is evidentiary not punitory. Because participation de facto may sometimes be obscure in detail, it is ''established by the presumption juris et dc jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by Section 114 brings the case within the ambit of S. 34.

There can be no doubt, that if the trial Court, on the facts proved, recorded a conviction, under the wrong section, it will always be open to an appellate Court, to alter the conviction to one under the section under which the accused ought to have been properly convicted. There should be no prejudice in such cases, to the accused. If prejudice can be inferred then in the absence of a charge, it will be difficult to alter the conviction to some other offence. On facts we are unable to hold, that any material is available even remotely to presume, that the provisions of Section 34 Indian Penal Code, will be attracted. It is not the case of the prosecution that A.2 and A.3 instigated A.1 to commit the crime at the scene. On the mere presence of A.2 and A.3 at the scene and having caught hold of the hands of the victim, we cannot infer prior instigation plus their consequent presence at the scene.

In Willie (William) Slaney Vs. The State of Madhya Pradesh, , the Supreme Court, after referring to the decision of the Privy Council in Barendra Kumar v. Emperor , stated as follows:

Now when several persons joined in the commission of a crime and share a common intention, it means that each has the requisite intention himself; the fact that others share. It does not absolve any one of them individually and when the crime is actually committed in pursuance of the common intention and the accused is present at its commission, the crime becomes the offence actually committed because of Section 114 of the Indian Penal Code. Section 114 does not create the offence nor does Section 34. These sections enunciate a principle of criminal liability.

The Supreme Court further observed as hereunder:

Section 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out.

In this appeal we are unable to hold, that the crime was actually committed in pursuance of common intention. We have already stated, that by the mere presence of A.2 and A.3, the provisions of Section 114 Indian Penal Code cannot be invoked, in the absence of evidence, of the act being committed in consequence of their abetment.

We have a catena of cases which hold, that if a charge with the aid of Section 149 Indian Penal Code becomes inapplicable, conviction with the aid of Section 34 IPC was not barred. Vise versa will not be possible. Nethala Pothuraju and others Vs. State of Andhra Pradesh, . As observed by us earlier, any application of law will depend upon the facts available. While it may be possible in law to convict a person with the aid of Section 34 Indian Penal Code though charged with the aid of Section 114 Indian Penal Code, the question whether a person charged with the aid of Section 109 could be convicted with the aid of Section 34 Indian Penal Code, though not charged, will not merit serious discussion, at least in this instant appeal. An abettor charged with the aid of Section 109 Indian Penal Code need not have to be present at the scene and if he happens to be present in consequence of the abetment the provisions of Section 114 Indian Penal Code would stand attracted. While applying Section 34 IPC, the presence of the accused at the scene is a must. Sections 34 and 114 IPC can possibly be interchanged when there is no prejudice to the case of the accused, due to absence of a specific charge. The important distinction between Section 109 and 114 Indian Penal Code, is the presence of the abettor at the scene, in the latter section. Obviously Section 34 Indian Penal Code, cannot take the place of Section 109 Indian Penal Code, especially when the latter section does not necessarily contemplate the presence of the abettor at the scene. If the abettors were to be present, in consequence of the abetment Section 114 IPC will automatically step in. The present case is not one of antecedent abetment plus presence at the scene. It is also not the case of the prosecution that there was instigation at the scene, or there was conspiracy. We have already observed that A.2 and A.3 cannot be held to have intentionally aided A.1 in the commission of murder. Therefore we are unable to alter the conviction of A.2 and A.3 from Section 302 read with Section 109 Indian Penal Code, to one u/s 302 read with Section 34 IPC, for the facts and law do not permit such a course. We acquit A.2 and A.3 of Charge No. 2. However, they will be liable for an offence punishable u/s 341 Indian Penal Code, for having wrongfully restrained the deceased. The maximum sentence prescribed for this offence is simple imprisonment for one month. A.2 and A.3 have suffered rigorous imprisonment for a short period. The sentence of imprisonment already undergone by them will be sufficient to meet the ends of justice, for the altered conviction. These appeals will stand disposed of accordingly.