JUDGMENT
1. The accused in S.C.No.38/95 on the file of the District and Sessions Judge, Kamarajar District at Srivilliputhur, who suffered conviction and sentence under Sections 302 r/w 34, 307, and 307 r/w 34 I.P.C., have come to this Court, as appellants, challenging the same.
2. The respondent police filed a final report against the accused/appellants, contending that due to previous enmity and with an intention to commit murder of one Subbaiah, all the accused, joined together with common intention and in furtherance of the same, on 2.6.93 at about 6.00 p.m. at Koyilur Village, in front of the house of the second accused, they had assaulted Subbaiah, indiscriminately, using deadly weapons, inflicting multiple injuries, thereby causing death, that in the same incident, aiming the life of Gurusamy, the second accused assaulted him with Thoratti Aruval, causing grievous hurt, for which accused 1 & 2 have also contributed their common intention and therefore, accused 1 to 3 are liable to be convicted under Sections 302 r/w 34 I.P.C., the second accused is liable to be convicted under Section 307 I.P.C. and that accused 1 and 3 are liable to be convicted under Section 307 r/w 34 I.P.C.
3. The learned trial Judge, satisfying himself about the availability of a prima facie case, to proceed further, after framing charges, questioned the accused, for which they pleaded not guilty, disputing the events, as narrated in the final report.
4. On behalf of the prosecution, 16 witnesses have been examined, supported by 18 documents, buttressed by 12 material objects.
5. The learned trial Judge, while evaluating the above materials in its proper perspective, the evidence available on record, brought to surface the guilt of accused 1 to 3 under Sections 302 r/w 34 I.P.C., the guilt of the second accused under Section 307 I.P.C. and the guilt of the accused 1 & 3 under Section 307 r/w 34 I.P.C. On the basis of the above conclusion, the learned trial Judge convicted and sentenced accused 1 to 3 for the offence under Section 302 r/w 34 I.P.C., ordering them to undergo life imprisonment, in addition to imposing a fine of Rs.5000/- each, in default directing them to undergo another six months S.I. The second accused was convicted under Section 307 I.P.C. and sentenced to undergo R.I. for 7 years, in addition directing him to pay a fine of Rs.2000/-, in default to undergo 2 months S.I. Further, accused 1 and 3 have been convicted and sentenced to undergo 7 years R.I., for the offence under Section 307 r/w 34 I.P.C., in addition directing each of them to pay a sum of Rs.2000/- as fine, in default, ordering them to undergo 2 months S.I.
6. The brief facts of the prosecution, leading to conviction, are as follows:
(a) Thiru Mariappan (P.W.1), Gurusamy (P.W.2), Paulraj (P.W.3) and one Subbaiah are the brothers. Tmt. Malaiyammal (P.W.4) is the daughter of P.W.2. Accused 2 & 3 are the brothers and first accused is the son of the second accused. All are residing at Koyilur Village.
(b) Tmt. Malaiyammal, when she was unmarried, went to Nelkadir Kadu, and the first accused attempted to outrage her modesty at about 2.00 p.m., by pulling her and shutting her mouth. Aggrieved by the conduct of the first accused, she reported the matter to her father, as well as junior paternal uncles.
(c) P.W.1 and others reported the matter to Gurusamy Konar (P.W.6) for panchayat. The attempt of P.W.6, to enquire this incident, was proved to be futile, since the first accused absconded from the village, after the above said incident. Therefore, he assured that on the return of A1 to the village, he will enquire into the matter.
(d) On 2.6.1993, P.Ws.1 to 3 and Subbaiah celebrated the marriage of their brother’s son, Muthuaiah. After the celebration is over, at about 6.00 p.m., they came to know about the arrival of A1 to the village. Therefore, P.W.1, Subbaiah and Gurusamy went to the house of Nattanmai, who was not available. Then they went to the house of A1, where they have noticed all the accused together. On seeing A1, Subbaiah questioned the conduct of the first accused viz., his misbehaviour with P.W.4. Aggrieved by this questioning, the second accused Ponnaiah Konar, pelted stone, causing injury to Subbaiah over his forehead and left cheek. Because of this injury, Subbaiah fell down. Immediately, Krishna Konar and A3 took a crowbar (M.O.2) and assaulted Subbaiah over his back and head. On seeing this, when P.W.2 attempted to rescue Subbaiah, the second accused by name Ponnaiah, assaulted him using a Thoratti Aruval, thereby causing cut injuries over the left hand. Then, the first accused using M.O.1, stabbed Subbaiah over his head, right shoulder and left shoulder, indiscriminately. Thus assaulting, A1 and A2 left the place with M.O.1-Thoratti Aruval, whereas A3 threw the crowbar there itself and left the place.
(e) P.Ws.1 to 3, on verification found that their brother Subbaiah died due to the injuries caused by the accused. Immediately, in order to save Gurusamy (P.W.2), P.W.1 made arrangements to take Gurusamy to the hospital, then went to the police station, to report the matter.
(f) At about 7.00 p.m., when P.W.13 was in the police station, P.W.1 and P.W.3 reported the incident to P.W.13, who recorded the same as Ex.P.1, on which basis, a case was registered under Sections 302 and 307 I.P.C. in Cr.No.137/93, for which Ex.P16, printed F.I.R. was submitted to the court concerned.
(g) On 2.6.1993 at about 10.00 p.m., when P.W.2 reached the hospital along with Sangiliandi, P.W.7, Dr. K. Balasubramanian examined him and noticed two injuries, for which, he had issued Ex.P.6, wound certificate. P.W.8, who took X-Ray on P.W.2 had noticed fracture. On the basis of the opinion given by P.W.8, P.W.7 opined that one of the injuries sustained by P.W.2, is grievous in nature.
(h) Thiru M. Chinnathambi, P.W.14, the then Inspector of Police, Sivagangai Town, who was in-charge of Alangulam Police Station, on information at about 8.00 p.m. on 2.6.1993, took the case for investigation. He reached the scene of crime at about 9.00 p.m., prepared observation mahazar, Ex.P.2, as well as sketch Ex.P.17. He had conducted inquest over the body of Subbaiah and the result is Ex.P.18. The body was sent for autopsy with a request under Ex.P.7. From the scene of crime, P.W.14 recovered M.Os.2,3,4,7 & 8 under Ex.P.3, in the presence of the witnesses. Thereafter, in continuation of the investigation, he examined P.Ws.1 & 3 and other witnesses, recorded their statements. P.W.14 went to the hospital and examined P.W.1 and at that time, he had also recovered M.Os.5 & 6.
(i) The doctor, who received Ex.P.7, on 3.6.1993 at about 6.30 a.m., upon identification of the body of Subbaiah by the police concerned, conducted autopsy at about 7.30 a.m., which revealed the following injuries: External Injuries:
1. A deep cut wound extending from the back of the neck cutting and passing through the clavicle muscles, clavicle arteries, clavicle veins and clavicle nerves and spinal cord at the level of C4 vertebra with the foreskin intact. Blood clot present.
2. A spindle shaped cut injury of size about 15 cm x 6 cm x 4 cm extending 6 cm below the lower end of right scapula to 8 cms below the lower end of left scapula blood clot present. Edges uniform and everted.
3. A stab injury over left temporal region of scalp penetrating the temporal bone with size 3 cm x 2 cm x 6 cm going down wards.
4. A stab wound of size about 3 cm x 1 cm x 4 cm over left side of face 5 cms below the left lower eye lid and 1 cm away from the left glue of nose.
5. A lacerated wound of abut 4 cm x 1 cm x bone depth over forehead.
6. A lacerated wound of size 3 cm x 2 cm x bone depth near the lat cut through of left eye.
7. A lacerated wound of 10 cm x 1 cm x bone depth below left lower eye lid.
8. A lacerated wound of 1 cm x 1 cm x bone depth over occipital region of scalp.
9. A lacerated cut wound of size 6 cm x 3 cm x 3 cm over the post side of right shoulder cutting the scapular and humerus head.
10. A spindle shaped stab injury of size 3 cm x 2 cm x 5 cm over left shoulder 1 cm away from the root of the neck fracturing left clavicle and scapula.
11. A stab injury 2 cm x 1 cm bone depth over left scapula.
12. A stab wound of 2 cm x 1 cm x 3 cm depth over the back 2 cm below the left scapula.
13. A stab wound of 2 cm x 1 cm x 3 cm over the back 2 cm medial to injury No.12.
Internal injuries:
Head: A stab wound of 2 cm x 1 cm x 2 cm over the temporal (lobe) and membranes ruptured at this region.
Neck: Muscles, Arteries veins, nerves, trachea, Oesophagus and spinal cord seen to cut at c4 level. Hyoid bone broken. Thorax : A stab wound of 1 cm x 1 cm x 2 cm in the apex of left lung. Vertebra column: Fracture of c4 vertebra and spinal cord at c4 level.
Extremities – Fracture of right humerus hand and scapula (Corresponding to injury No.9)
Fracture of left scapula and clavicle seen (corresponding to injury No.10)
Considering the effect of the above injuries, he opined in Ex.P.8 that the deceased would appear to have died of shock and hemorrhage due to multiple injuries caused by lethal weapons.
(j) After the investigation by P.W.14, P.W.15 then P.W.16, conducted further investigation, examined some more witnesses and some of the material objects recovered during the investigation were also sent to forensic department, for chemical examination, which brought Exs.P.14 and P.15. P.W.16 after the completion of the investigation, came to the opinion that Subbaiah died due to the intentional act of A1 to A3 and P.W.2 sustained grievous hurt due to the attempt made by the accused to commit murder. In this view, he had filed a final report as aforementioned, leading to trial, ending in conviction, which is under challenge before us, in C.A.Nos.37 and 56 of 1996.
7. It is reported that the third accused by name Krishna Konar expired during the pendency of the appeal and subsequently at request, the death certificate issued by the Village Administrative Officer was also produced. Therefore, the charge against A3 abates and the appeal, as far as A3 is concerned, stand dismissed as abated.
8. The appellants, who filed C.A.No.37/1996 have also filed C.A.No.55/96 for the same relief. Since the counsel on record in C.A.No.37/1996, had expired, to prosecute C.A.No.37/96 also, the learned counsel, Mr. V. Kadirvel, has filed a memo of appearance. Therefore, it is unnecessary for us to decide both the appeals and the appeal in C.A.No.55/96 is dismissed as unnecessary, since we are going to decide C.A.No.37/96 on merits.
9. Heard the learned counsel for the appellants, Mr. V. Kadirvel and the learned Additional Public Prosecutor.
10. The learned counsel for the appellants submits that there is considerable delay in sending the F.I.R. to the court concerned, which should create spontaneous and reasonable doubt and its benefit should go to the accused. The learned counsel for the appellants further impugned the decision of the trial Court on the grounds, that the trial Court had committed an error in accepting the interested and inconsistent oral testimony of P.Ws.1 to 3, that failed to note the fact of motive, being not proved, that had committed an error, in not taking into account the time difference available, regarding the actual time of death of the deceased, that the trial Court had failed to note the non examination of other independent witnesses available, and that the trial Court had failed to note that the prosecution had not recovered the weapon said to have been deployed by A2, for causing the injuries. As the final submission, or as an alternative submission, the learned counsel has submitted that assuming some case is made out against A1, certainly his act would not come within the four walls of 302 I.P.C. and if at all, it should attract only 304 I.P.C. In this view, he pleaded modification of conviction and reduction of sentence of A1. It is the further submission of the learned counsel, that the offence said to have been committed by the second accused, will not attract 307 I.P.C. and if at all, it could be construed that he had committed an offence under Section 326 I.P.C. It is further pointed out that there was no common intention and the accused have not acted, in furtherance of the common intention also and in this view, convicting the second accused under Section 302 r/w 34 I.P.C. as well as convicting the first accused under Section 307 r/w 34 I.P.C. are not legally sound and it also requires appropriate modification and if at all, accused 1 & 2 could be convicted and sentenced as per their individual act and not applying Section 34 I.P.C.
11. The learned Additional Public Prosecutor, while opposing the above arguments submits, that the accused have not only acted with common intention, but also shared the common intention, in furtherance of the same and in this view, each accused is entitled to be convicted, not only for their individual acts, but also for their sharing of common intention, by participating in the commission of the crime, in one way or other. It is the further submission of the learned Public Prosecutor, that the learned trial Judge, considering the unblemished evidence of P.Ws.1 to 3, supported by other attending circumstances, had reached an unerring conclusion, which warrants only affirmation and not any disturbance and in this view, he prayed for the dismissal of the appeal.
12. A division bench of this Court, in Johny and five others v. State (1990 L.W. Crl.175), has held has follows:
“the first information report a document of considerable importance, is produced and proved in criminal trials not as a piece of substantive evidence, but with the avowed object of obtaining the early information of the alleged criminal activity and to have a record of the circumstances before there was time for them to be embellished or forgotten. A quick first information report, which reaches the Court of the Magistrate with promptitude, will be a towering circumstance which will go a long way to assure the veracity of the prosecution story of, there can be no time to create and deliberate a false case against the accused. It may be in some cases the delay in lodging the first information report may be inevitable, but such delay may have to be satisfactorily explained. Courts have held that long and unexplained delay not only in lodging the first information report but also in its receipt in the Court and suspicious circumstances to be taken in to consideration while judging the bona fides of the prosecution story, as delay may bring in a coloured version of the whole incident. A delayed first information report, which gives rise to suspicion, will put the Court on guard to look for a possible and acceptable explanation for the delay. A delayed first information report in prosecution where there are more accused than one, will require careful scrutiny and more so when the possibility of false implication looms large.”
To apply this dictum, the prosecution must have failed to explain the delay. On the other hand, if we found satisfactory explanation, for the delay said to have been caused, in reaching the F.I.R. to the court concerned, the same could be ignored as ruled by the Apex Court in Shiv Ram v. State of U.P.(1998 SCC (Cri) 278)
13. The Apex Court has ruled in the above ruling, that the delay in sending the copy of the F.I.R. to the Magistrate, would not automatically damage the positive and credible evidence on record and if at all, the delay would show the carelessness on the part of the investigating agency. On the basis of this decision, the learned Additional Public Prosecutor would urge that there could be no reason of any kind to discard the trustworthy evidence of P.Ws.1 to 3 and therefore, the delay noticed in the printed F.I.R. reaching the court concerned, could very well be ignored and the genuine case should not suffer because of the laches committed by the investigating agency. The submission of the Additional Public Prosecutor appears to be well acceptable, considering the explanation available for the delay and in this view, the case relied on by the learned counsel for the appellants, will not come to their aid, to create a reasonable doubt, thereby allowing the accused to escape through the gap.
14. It is the positive case of the prosecution, that the incident had taken place on 2.6.1993 at about 6.00 p.m. P.W.1 would state that immediately, he reached the police station at about 7.00 p.m. along with P.W.3 and preferred Ex.P.1, in which P.W.3 (Paulraj) also signed as a witness. P.W.3, Paulraj also corroborates the same, which is well supported by P.W.13. P.W.13, the then Head Constable of Alangulam Police Station had stated, that on 2.6.1993 at about 7.00 p.m., P.W.1 and P.W.3 came to the police station preferred Ex.P.1 and gave statement, on which basis, immediately, a case was registered, for which Ex.P.16 was sent to the Court concerned, through one P.C.1742, Povvaiah. As seen from Ex.P.16 and as admitted by P.W.12, the printed F.I.R. reached the Court only on 3.6.1993 at about 1.00 p.m. Thus, we are able to see some delay of 18 hours or so. This delay could have been explained by examining Povvaiah, but for the reasons best known to them, they failed in their duty. However from the oral evidence of P.W.14, we find explanation for the delay. According to P.W.14, due to non availability of the bus immediately, the delay had occurred. The distance between the police station and the court is about 30 kms. The distance between the police station and the scene of crime is 10 km or so. Because of the non availability of the bus, as spoken by P.W.14, there was some delay in reaching the F.I.R. to the court concerned, which has failed to create any reasonable doubt in our mind, considering the prompt action taken by the investigating agency, otherwise.
15. P.W.14 has categorically deposed about the prompt lodging of F.I.R. by the victim parties, on which basis a case was registered, which is not seriously disputed. The suggestion to P.W.13 that on the intimation received from Rajapalayam South Police Station, a statement was recorded and the same was suppressed, appears to be unfounded, which could be seen from the intimation, as well as from the oral evidence of P.W.7. According to P.W.7, P.W.2 reached the hospital at about 10.00 p.m. and only thereafter, Ex.P.10 intimation might have been sent to the police. Even before that, a case was registered, as spoken by P.W.13, which is not very seriously challenged. Therefore, the question of suppression of the statement said to have been recorded from P.W.2, does not arise for consideration. In our considered opinion, the delay occurred in this case is not in lodging the complaint, but the printed F.I.R. reaching the court concerned, which will not have any effect of creating any doubt about the genesis of the case and therefore, this defence is liable to be rejected.
16. The cause of action for the incident, as alleged by the prosecution is, that some days prior to the date of incident, viz., 2.6.1993, A1 misbehaved with P.W.4. This incident was not witnessed by anybody, even according to the prosecution and therefore, the person who is competent to speak about this is only P.W.4. P.W.4 has categorically deposed about the act of A1, which she reported in turn to his father, as well as junior paternal uncle, as submitted by P.Ws.1 to 3. We find no reason to discard their oral testimony, though they are somewhat interested. Because of the conduct of A1 alone, it seems the prosecution party went to the house of the accused on the fateful day. To prove this motive, P.W.6 was also examined. According to P.Ws.1 to 3, immediately after the first incident, they have reported the matter to P.W.6, who in turn attempted to reconcile the same, by summoning A1, but unfortunately, A1 was not in the village, so as to say, he absconded. When PW1 and PW6 have spoken about the absconding of A1 from the village and his return on 2.6.1993, specifically by PW1, they were not at all questioned, even suggestively. It is also not the case of the accused, that A1 was very well available in the village, but because of the false claim, he was not summoned and enquired. In a way, indirectly, the absconding of the first accused is admitted, as seen from the cross examination of PW1, since it is suggested- “1tJ vjphp K:f;fhz;o vjw;fhf Ciutpl;L Xodhh; vd;w tptuk; vdf;F bjhpahJ”. Unless he had misbehaved with PW4, there would not have been any necessity for A1, to abscond from the village, which is very well proved by the examination of an independent witness, who had given inspiring evidence. On the return of A1, it is natural for the father of PW4, as well as her junior paternal uncles, to question the conduct of A1, for which purpose, legitimately also, they had gone to the place of the accused, for which we are unable to find fault. In this view, the motive alleged to the incident is proved, beyond all reasonable doubt.
18. Dr. Balasubramanian had examined P.W.2 immediately after the incident i.e. at about 7.00 p.m. On examination, he had noticed the following two injuries:
(i) A lacerated cut injury size 5 cm x 3 cm x bone depth over the post side of left forearm below the elbow joint.
(ii) A lacerated cut injury of 3 cm x 2 c x bone depth over the post side of left arm above elbow joint.
The doctor further opined that the first injury is a grievous one. The above facts established by the oral evidence of P.Ws.7 & 8 coupled with Exs.P.6 and P.9 were not challenged. The date of incident and time given in the medical certificates are aslo in conformity with the prosecution case. Therefore, we conclude that in the incident narrated in the final report, P.W.2 sustained grievous injury. As contended on behalf of the prosecution, if A2 had committed this serious injury with an intention of aiming the life of P.W.2, then there could be a chance of 307 I.P.C., visiting upon the second accused. On the other hand, without any intention, probably aggrieved by the conduct of the deceased and P.W.2, A2 had assaulted P.W.2, then it should come within the meaning of endangering human life, thereby attracting 326 I.P.C. alone, which we will discuss infra.
19. The body of Subbaiah was sent for autopsy, which was attended by P.W.7. As spoken by him and as seen from Ex.P.8, the deceased had sustained as many as 13 injuries and more or less except three injuries or so, all other injuries are either cut injuries or stab injuries. The doctor opined that due to the multiple injuries caused by lethal weapons, Subbaiah succumbed to the same. When the doctor had opined about the cause for the death of Subbaiah and the fact of noticing 13 injuries over his body, the same was not questioned. Therefore, safely we would conclude, that because of the multiple injuries and its after effect, Subbaiah died. It is the specific case of the prosecution, that attacking of Subbaiah was done by all the three accused, in furtherance of common intention of all and therefore, each one is liable for that act, in the same manner, as if it were done by each accused individually. The case of the prosecution was accepted by the trial Court and in this view alone, all the three have been convicted under Section 302 r/w 34 I.P.C. If the prosecution had established the common intention and the act performed by other accused, in furtherance of the same, certainly irrespective of some minor acts done by the accused, he also would be liable to face the same consequences, as the person, who is the cause for inflicting the fatal injuries. As far as this aspect is concerned, we will discuss the same at later point of time. Under the facts and circumstances of the case, we conclude that Subbaiah died due to homicidal death, and if it is established, that all the accused are responsible for the same, they should be dealt with either under Section 302 I.P.C., according to the individual overt act or under Section 302 r/w 34 I.P.C., as the case may be.
20. The learned counsel for the appellants submits that P.Ws.1 to 3, who had spoken about the acts said to have been committed by the accused, are all blood relations, not only interested, but also have the animosity, to depose against the accused and in this view, their evidence are not worthy of credence, that too when there are irreconcilable inconsistency or discrepancy. From the reading of the oral evidence of P.Ws.1 to 3, we are unable to see any material contradictions or material omissions, shaking the foundation of the prosecution case, except some trivial omissions or discrepancies, which could be ignored, considering the lapse of time, when the witnesses were examined before the court. The presence of P.Ws.1 to 3 at the scene of crime, is not seriously challenged. In fact as indicated by us, above, one of the witnesses viz., P.W.2 is an injured eyewitness. Therefore, we find no reason of any kind, even to suspect about the trustworthiness of P.Ws.1 to 3, the further fact being, their evidence are inspiring, fitting with all probabilities and naturalities.
21. P.W.1 would state that on 2.6.1993 after 6.00 p.m., when they came to know about the return of the first accused, he along with Subbaiah and P.W.2, went to the house of Nattanmai, that since Nattanmai was not available, they went to the house of Mookandi, where they had noticed the presence of A1 to A3, just in front of their house. P.W.1 further says, when Subbaiah questioned the previous conduct of the first accused, the second accused pelted stone, thereby causing injuries to Subbaiah, over forehead and near left eye. This injury spoken by P.W.1 is supported by the medical evidence also, since he had noticed injuries 5 to 7 over the forehead, as well as near the left eye. Thus, we could say, the medical evidence fits in with the ocular evidence given by P.W.1. P.W.1 would further state that when his brother fell down, A3 stabbed him with crowbar, over his backside as well as head, which is well corroborated by the oral evidence of P.W.2, an injured. P.W.7, the doctor had noticed the corresponding injuries over the body of Subbaiah i.e. spindle shape cut injuries, as described in Ex.P.8 as injury Nos.2 and 10. Though, at one stage, the doctor had opined that it is not possible to inflict injury like No.10 by using crowbar, later he admits it is also possible, when the victim was sitting. It is the case of P.W.1 that after the deceased was attacked by stone, he fell down and there was every possibility of A3, attacking the deceased, using crow bar, causing injury Nos.2,3 & 10. Hence, the contention of the learned counsel for the accused that medical evidence is not in conformity with the oral evidence, deserves rejection.
22. P.W.1 had stated further that the second accused Ponnaiah, using Thoratti Aruval caused injury to P.W.2 over his left hand. As indicated by us, P.W.2 sustained injuries, which could be possible, to be inflicted by using Thoratti Aruval like weapon. This evidence given by P.W.1 is fully corroborated by the injured P.W.2, as well as P.W.3, who followed P.W.1, P.W.2 and the deceased, coming to know that they had been to the accused house, to question A1, regarding the previous conduct. We find nothing strange in the evidence of P.Ws.1 to 3, regarding these aspects. At the earliest point of time, when there was no occasion for the intervention of third parties, including the police, P.Ws.1 and 3 have categorically given a statement, while preferring the first information report and the evidence available on record at present, is only in conformity of the same. We find no discrepancy or omission cutting the root of the case.
23. The investigating agency had not recovered the Thoratti Aruval used by the second accused. Though the investigating officer had examined the accused, it seems, the accused have not disclosed the whereabouts of Thoratti Aruval and therefore, it was beyond the scope of the investigating officer, to recover the same. Law does not mandate that the weapon used to commit an offence, should be produced always. If the evidence is that the weapon is available at the scene of crime, then non production may amount to abrasion. Here, it is not the case of the prosecution that Thoratti Aruval was left by A2 at the scene of crime. Therefore, the non recovery of Thoratti Aruval will not belie the evidence given by P.Ws.1 to 3, whose evidence are inspiring. They had categorically deposed about the user of the weapon and the injuries found on the person of P.W.2 also would suggest, that a weapon like Thoratti Aruval might have been used for causing injuries to P.W.2. In this view, we conclude accepting the oral evidence of P.Ws.1 to 3, that the second accused had used a deadly weapon like Thoratti Aruval and caused grievous hurt to P.W.2. If this grievous hurt was inflicted with an intention to commit murder, then 307 I.P.C. would come into operation. Otherwise, only 326 I.P.C. will be attracted. The first charge against A1 to A3 is under Section 302 r/w 34 I.P.C. As far as A3 is concerned, in view of his death, the charge against him abates and it is unnecessary for us, to discuss the oral evidence implicating A3, the further fact being, no argument was advanced for the acquittal of A3 also.
24. P.W.1 had categorically stated, that when they had questioned about the conduct of the first accused, the second accused pelted stone, causing injuries to Subbaiah over his forehead, nearby left eye, which are confirmed by the medical evidence also, as pointed out. He further says, the first accused cut Subbaiah over his backside, head, right shoulder, left shoulder, indiscriminately. This evidence given by P.W.1 regarding the injuries caused by the first accused as well as by the second accused to the deceased Subbaiah, is well corroborated by P.Ws.2 & 3 also. We find no material contradiction or substantial omission to doubt about their trustworthiness. Though they are related to each other, they have given evidence in such a way, fitting with all probabilities, naturally also, which is confirmed by the medical evidence, preceded by the first information report, Ex.P1. Only because of the multiple injuries, caused to Subbaiah, he died, as per the medical opinion of the doctor. Under the above facts and circumstances of the case, we conclude because of the injuries inflicted by all, the accused, Subbaiah succumbed to death, for which the accused appellants are liable to answer. Therefore, we have to see, what are the offences made out, as per the above conclusion.
25. Admittedly, the accused had not went to the house of deceased or P.Ws.1 & 2, in order to assault them, with an intention to commit murder or attempt to commit murder. Admittedly, as spoken by P.Ws.1 to 3, P.Ws.1 & 2 and the deceased went to the house of A1, in order to question his conduct viz., outraging the modesty of P.W.4. Certainly, P.Ws.1 and 2, as well as the deceased who had gone to the house of the accused would have questioned him, using some harsh language also, though it is not disclosed. Aggrieved by the conduct of the deceased as well as P.Ws.1 & 2 viz., that they have come to their place to question the conduct of A1, prompted or tempted by the act of P.Ws.1 & 2 and the deceased, the second accused pelted stone over Subbaiah, followed by attack by other accused. In that process, A2 inflicted two injuries to Gurusamy (P.W.2), without expressing even any intention to commit murder. If really A2 had the intention to commit murder, he would not have allowed P.W.2, to escape with only two injuries. It is not the case of P.W.2 that he was spared by A2, because of the intervention of others or by his escaping from the scene of crime. The above narrated conduct would indicate, that there was no intention on the part of the accused, aiming the life of P.W.2, which would follow 307 I.P.C., is not attracted. In order to make out a case under Section 307 IPC., the prosecution should establish a case that murder of P.W.2 was attempted, that such death was attempted to be caused by or any of the act of the accused and that such act was done with the intention of causing death. We find the absence of later two ingredients, though the first point is available in this case. The act of the second accused, should be described as one, endangering the human life and in that attempt, caused grievous hurt and therefore, the second accused is liable to be punished only under Section 326 I.P.C., and not 307 I.P.C.
26. The trial Court not only convicted A2 under Section 307 I.P.C., but also A1 and A3 under Section 302 r/w 34 I.P.C. It is an admitted position, as seen from the evidence that P.W.2 was not attempted or assaulted by A1 and A3. The only person, who caused injuries to P.W.2 is A2. In order to enforce Section 34 I.P.C. and convict the other accused, who were present at the time of the incident, by invoking Section 34 I.P.C., it should be established under law, that other accused also had acted or done something, not only with common intention, but also in furtherance of the common intention. If this principle is to be applied against A1, he also should have done something to P.W.2, causing injuries or preventing him or catching hold of him or something like that. No evidence is available in this regard. Therefore, in the absence of any actual participation of A1, in causing injuries to P.W.2, it is not possible to convict him under Section 326 r/w 34 I.P.C. also. Therefore, the conviction slapped upon A1 under Section 307 r/w 34 I.P.C. shall go and he is acquitted of this charge.
27. The learned counsel for the appellants submits that the act of the first accused will not attract Section 302 I.P.C., whereas it should attract only 304 I.P.C., claiming protection under Exception 4 to Section 300 I.P.C. The prosecution has not alleged that A1 and A2 committed murder of Subbaiah having plan to do so and making preparation, for the commission of the offence. As aforementioned, the deceased and P.Ws.1 & 2 had been to the house of A1 and at that time, there was a wordy altercation, causing sudden fight, without premeditation. In the heat of passion, upon sudden quarrel, the first accused, of course, taking the knife, attacked the deceased, thereby causing multiple serious injuries. Therefore, we conclude that the act of the first accused should come within Exception 4 to Section 300 I.P.C., thereby attracting Section 304 I.P.C. Then we have to see, whether the act of the first accused comes under Part I or Part II. The first part says, if the act by which the death is caused is done with the intention of causing death or of causing of such bodily injury, as is likely to cause death, then the person should be dealt with under part I. The first accused as spoken by P.W.1, uttering “,njhL bjhiye;J nghlh@. assaulted and caused cut injuries to Subbaiah, all over his body, numbering 10 injuries or so. If he had no intention to commit murder, he ought to have left the deceased at least with one or two assault. But as seen from the medical evidence and as spoken by the eyewitnesses, he had inflicted as many as 10 injuries or so, which brought to surface, the intention of A1, as exposed by P.W.1 also. All the injuries were over vital parts of the body and in this view, it could be easily inferred that the first accused had the intention of causing, such bodily injury, as is likely to cause death, which in fact caused the death of Subbaiah. Therefore, the act of the first accused, in our considered opinion, comes within the four walls of 304(i) I.P.C. For this offence committed by A1, A2 also shared the common intention and caused injuries No.5 to 7, thereby coming himself within the ambit of Section 34 I.P.C.
28. The important feature of Section 34 is the element of active participation in the commission of the criminal act. Active participation should mean that all the accused should participate in the act, in one way or other. As contemplated under Section 149 of I.P.C., mere presence of other accused will not bring them within the four walls of 34 I.P.C. In this view, the common intention expressed in Section 34 I.P.C. is an intention to commit the crime, actually committed and if the other accused had participated in the common intention, it should be only in furtherance of the common intention. Here, the second accused by pelting stone over Subbaiah, actively involved in the commission of the offence and in fact, actually committed a criminal act viz., causing injuries to the deceased. Whether those injuries are fatal or not, it is irrelevant to rope in the accused under Section 34 I.P.C. Therefore, considering the actual involvement of the two in causing injuries to deceased Subbaiah, we conclude that for the commission of the offence committed by A1 under Section 304(i); under Section 34 I.P.C., the second accused is also liable to be convicted as if the criminal act was done by him also. In this view, we conclude that the second accused is also liable to be convicted under Section 304(i) r/w 34 I.P.C., then reaching to the last stage of quantum of sentence. By the act committed by the second accused, causing grievous hurt to P.W.2, no deformity was caused, except the fracture which is fully cured. Considering this aspect, we are of the opinion that A2 should be convicted under Section 326 I.P.C. and should be sentenced for the period already undergone, confirming the fine, though it is for under Section 307 I.P.C.
29. The deceased and P.Ws.1 & 2 went to the place of the accused, not armed with any weapon. They approached the accused, only to question their conduct, which appears to be legitimate, since as established P.W.4 was the target of A1, previously. Taking advantage of the fact that the deceased as well as P.Ws.1 & 2 had come to their place, of course, preceded by fight or wordy altercation, only with an intention to commit murder, without premeditation, A1 and A2 committed the murder of Subbaiah with common intention, for which substantial sentence should be awarded. Considering the facts and circumstances of the case, we feel that the ends of justice would be met if these two accused are convicted under Section 304(I) I.P.C., and sentenced to under go R.I. for 10 years, confirming the fine of Rs.5000/- though it was imposed under Section 302 I.P.C. To the above extent, the appeal is to be allowed.
30. The result therefore, is allowing the appeal in part, we convict A1 and A2 under Section 304(I) I.P.C. directing them to undergo R.I. for 10 years, confirming the fine already imposed for the offence though under Section 302 r/w 34 I.P.C. and convict A2 for the offence under Section 326 I.P.C. reducing the sentence to the period already undergone, confirming the fine, though it was for 307 I.P.C. As far as A3 is concerned, the appeal shall stand abated.
The accused 1 & 2 were released on bail by this Court on 13.7.2001 and 30.8.2000 respectively. The accused are directed to surrender before the trial Court within 15 days from today, failing which, the trial Court is directed to secure the accused by issuing non bailable warrants, to serve out the remaining period of sentence.