JUDGMENT
Karpagavinayagam, J.
1. In this case, totally there were four accused. A-1 Pandi and A-2 Balasubramani, the appellants herein have preferred this appeal, aggrieved by the conviction and sentence imposed by the trial Court. A-3 and A-4 were acquitted by the trial Court.
2. A-1 was convicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment. A-2 Balu alias Balasubramani was convicted for the offences under Sections 326 and 324 I.P.C. and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1,000/- and three years rigorous imprisonment respectively.
3. The facts leading to conviction, are as follows:-
(a) The deceased Palpandi, aged about 17 years, is a school going student. P.W.1 Jayapaul and P.W.2 Murugan are his friends. They are all residing in Chellur Melathoppu at Madurai. A-1 and A-2, the brothers are residing in the same area.
(b) On 24-10-1992, both the accused came to the house of the deceased Palpandi and threatened him to pay money. When he refused to pay, they intimidated that he would be done away with. Thereafter, they went back. The deceased immediately rushed to P.W.1 and complained to him about the incident.
(c) P.W.1 and the deceased, accompanied by P.W.2, went to the house of the accused 1 and 2, but were not available in the house. Therefore, P.Ws.1 and 2 came back. On the way, they happened to see the accused 1 and 2 standing near Pilliyar Temple. P.W.1, on seeing the accused, questioned them as to why they threatened the deceased Palpandi. A-1 got enraged and challenged him that he had no business to come to his area to question him.
(d) While there was quarrel between them, A-1, suddenly took a knife and stabbed on the right thigh and right buttocks of the deceased. P.W.1 Jayapaul and P.W.2 Murugan attempted to prevent further attack. A-2 Balu stabbed P.W.2 with the knife on his chest and right thigh. While P.W.1 tried to snatch the knife from A-2, he sustained injuries on the left hand fingers. The other two accused is A-3 and A-4, who were standing nearby, assisted the accused 1 and 2 in attacking the deceased and P.W.2.
(e) On receipt of injuries, the deceased ran towards his house. P.W.2 Murugan also ran towards the southern side. The accused, with the knives, ran towards the northern side. The deceased went near his house and fell down on the ground. P.W.4 Mayakkal, the neighbour, took the deceased in an auto to hospital at 3.20 p.m. In the meantime, on noticing that P.W.2 Murugan sustained injuries, P.W.6 Mani, rickshaw puller took him to the hospital.
(f) P.W.14 Doctor examined the deceased and declared him dead. Ex.P-17 is the copy of accident register. Ex.P-18 is the death intimation. P.W.14 Doctor admitted P.W.2 Murugan at 3.25 p.m. who was brought by P.W.6 Mani. Ex.P-16 is the accident register pertaining to P.W.2 Murugan. He found incised wounds. Ex.P-15 is the wound certificate of P.W.2. P.W.1 went to the hospital and since the deceased was declared dead, he straightaway went to Thallakulam Police Station and gave Ex.P-1 complaint at 4 p.m. P.W.17 Sub-Inspector of Police registered the same for the offences under Sections 302, 307 and 324 I.P.C. Ex.P-21 is the F.I.R.
(g) P.W.18 Inspector of Police, on 24-10-1992 at about 5 p.m., took up investigation and rushed to the scene of occurrence. He prepared observation mahazar and rough sketch and recovered blood stained earth, sample earth etc. He went to Thallakulam Police Station and recorded the statement of witnesses. He sent P.W.1 with the medical memo to the hospital. P.W.13 Doctor examined P.W.1 and issued Ex.P-14 accident register.
(h) On 25-10-1992 at about 6 a.m., P.W.18 Inspector of Police went to the hospital and conducted inquest over the body of the deceased. Ex.P-23 is the inquest report. Then, he sent the dead body of the deceased for post-mortem.
(i) P.W.16 Doctor conducted post-mortem on 25-10-1992 and noticed that the deceased has sustained two oblique stab injuries on the buttocks. He gave an opinion in Ex.P-20 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to injuries sustained.
(j) On 3-11-1992, P.W.18 Inspector of Police came to know that A-1 Pandi has surrendered before the Judicial Magistrate, Thirumangalam. On 11-11-1992, he obtained police custody and on his confession, M.O.1 knife was recovered. In the meantime, on 10-11-1992, he arrested A-2 Balu @ Balasubramani, A-3 Murugan and A-4 Mani alias Mariappan and sent them for judicial custody.
(k) Thereafter, he made arrangements for sending the material objects for chemical examination. Since A-3 and A-4 were not known to witnesses earlier, he sent requisition to the Judicial Magistrate to conduct identification parade. Accordingly, P.W.12 Judicial Magistrate conducted identification parade in which A-3 and A-4 were identified by P.Ws.1 and 2.
(l) After completion of the investigation, the charge sheet was filed against all the accused.
(m) During the course of trial, on behalf of prosecution, P.Ws.1 to 18 were examined, Exs.P-1 to P-23 were filed and M.Os.1 to 12 were marked.
(n) When the accused were questioned under Section 313 Cr.P.C., they simply denied their complicity in the crime.
(o) The trial Court, on a consideration of the materials available on record, convicted A-1 for the offence under Section 302 I.P.C. and A-2 for the offences under Sections 326 and 324 I.P.C. However, A-3 and A-4 were acquitted by the trial Court.
4. Challenging the said conviction and sentence, A-1 has filed Crl.A. No. 260 of 1996 and A-2 has filed Crl. A. No. 221 of 1996.
5. Ms. J. Sundarakanchani, learned counsel appearing for A-1, while assailing the judgment impugned, would make the following contentions:-
(a) P.Ws.1 and 2 would not have been present at the scene of occurrence. Their evidence would suffer from various infirmities. If actually P.W.1 had been there, he would have taken the deceased to the hospital. On the other hand, it is the case of the prosecution that P.W.4 Mayakkal took the victim-deceased who was lying down on the Street to the hospital.
(b) Though P.W.1 stated in Ex.P-1 that he also sustained injuries while he was trying to snatch the knife from A-2, he admitted that he has not shown the injuries to the Doctor when he went to the hospital. In the light of the evidence given by P.W.13 Doctor that the injuries could be self-inflicted injuries, the injuries found on P.W.1 must have been self-inflicted, for the purpose of foisting a false case against the accused.
(c) Furthermore, P.W.2, though stated in chief-examination that he knew A-1 and A-2 earlier, admitted in cross-examination that he did not know A-1 and A-2 previously. Therefore, failure to conduct identification parade in regard to A-1 and A-2 is a serious infirmity. Consequently, it has to be held that the presence of P.Ws.1 and 2 at the scene of occurrence during the relevant time, is doubtful. Therefore, A-1 is entitled to be given “the benefit of doubt”.
6 (a). Mr. K. Mahesh, learned counsel representing Mr. V. Sairam for A-2, would contend that P.W.1 did not speak about the demand of money by A-2 at the time of threatening incident and as such, there was no necessity for A-2 to attack the deceased.
(b) He would further contend that the demand of money by A-2 is not mentioned in Ex.P-1. The sentence imposed on the second accused for the offence under Section 326 I.P.C. by the trial Court is very excessive, and therefore, the sentence could be reduced either to one year or to two years for the said offence, as imposed by various Courts. To substantiate his submissions, learned counsel for A-2 relied on a decision of the Supreme Court in PASHORA SINGH VS. STATE OF PUNJAB (1993 SUPP (2) SCC 33).
7. We have heard learned Additional Public Prosecutor on the above aspects.
8. We have carefully considered the rival contentions urged by the counsel on either side.
9. On going through the entire materials placed before the Court, it is clear that the evidence of P.Ws.1 and 2 is not only trustworthy, but also corroborated by the other materials. As such, we have no hesitation to hold that the conviction imposed on both the appellants are justified.
10. Our reasonings for the above conclusion are as follows:-
(a) According to prosecution, A-1 and A-2, on 24-10-1992, came to the house of the deceased and demanded money from him. The deceased, aged about 17 years, refused to pay the same. Objecting to rowdyism, P.W.5 Pondiselvi, the sister of the deceased and one Jagadambal, the neighbour shouted at the accused. About this incident, P.W.5 immediately came to the house of P.W.4 Mayakkal and complained to her. P.W.4 Mayakkal pacified her stating that the matter could be solved in Panchayat which could be convened next day.
(b) The evidence of P.Ws.4 and 5 would clearly indicate that there was a threatening incident in which the deceased was threatened by the accused 1 and 2, stating that “unless you make payment of money, you would be done away with”. Thereupon, the deceased came to the house of P.Ws.1 and 2 and complained to both of them about the incident. P.W.1 pacified the deceased stating that the matter could be solved later. However, the deceased compelled them to come and enquire about the incident, or else, he may not be able to stay in his house peacefully. On that score, both P.Ws.1 and 2 accompanied by the deceased, went to the house of the accused 1 and 2, whose house is situated nearby.
(c) When they found that the accused 1 and 2 were not available, they came back. On the way, they found that A-1 and A-2 sitting and conversing with A-3 and A-4. P.W.1 went and asked A-1 as to why the deceased was threatened. A-1 got infuriated over the act of questioning and got angry against the deceased who brought P.W.1 to his area and took M.O.1 knife and gave two stabs on his buttocks. On receipt of this injury, the deceased was running away from the scene of occurrence. P.Ws.1 and 2 attempted to prevent further attack. At that juncture, A-2 took his knife and gave two stabs to P.W.2, one at the chest and another at the right thigh. When he tried to snatch the knife from A-2, P.W.1 also sustained injuries on his palm and fingers.
(d) Then, the accused ran away from the scene of occurrence. P.W.1, getting afraid of the incident, also ran towards the southern side. In the meantime, the deceased was running towards his house and fell down unconscious in the street itself. Immediately, this was informed to P.W.5. P.W.5 came to P.W.4 and told about the incident. P.W.4 came to the street where the victim was lying down in a pool of blood and took him to the hospital in an auto-rickshaw.
(e) On coming to know that the deceased was taken to the hospital, P.W.1 went to the hospital. P.W.14 Doctor examined the victim and declared him dead. In the meantime, P.W.2, helped by P.W.6 Mani, a rickshaw-puller, was taken to the hospital. P.W.14 examined him and found injuries on the thigh and the chest. He was admitted in the hospital. When P.W.1 came to know that the deceased died, he went to the Police Station and gave Ex.P-1 complaint to P.W.17 Sub-Inspector of Police.
(f) The abovesaid details have been spoken to by P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6.
(g) The fact that P.W.2 was taken to the hospital by P.W.6 is evident from Ex.P-15 accident register issued by P.W.14 Doctor and in Ex.P-15, it is specifically mentioned that P.W.2 Murugan was brought by P.W.6 Mani. Similarly, the victim-deceased was brought by P.W.4 Mayakkal to the hospital. P.W.14 Doctor issued Ex.P-17, the copy of accident register and in Ex.P-17, it is specifically mentioned that the victim-deceased was brought by P.W.4 Mayakkal.
(h) Admittedly, there was no enmity between the parties. It is clear from the evidence that out of sheer rowdyism on the part of the accused 1 and 2, they demanded money from the deceased on the date of occurrence. When the deceased refused to pay money, the accused 1 and 2 went to the extent of threatening that he would be done away with, if money is not paid. As indicated above, it is clear from the evidence of P.W.5 that A-1 and A-2 came and threatened the deceased.
(i) Admittedly, there is no motive for P.Ws.1 and 2 to speak falsehood against the accused. As a matter of fact, the evidence of both P.Ws.1 and 2 would clearly indicate that in order to question the accused 1 and 2 regarding their high-handed act of having threatened the deceased, they went and asked A-1 and A-2 as to why they threatened the deceased. This had provoked both the accused to take the knife and attack both the deceased and P.W.2.
(j) The evidence of P.Ws.1 and 2 is clearly corroborated by the medical evidence adduced by Doctors–P.W.14, P.W.15 and P.W.16. P.W.1 also would state that he sustained injuries, while he was trying to snatch away the knife from A-2. P.W.13 Doctor also examined P.W.1 and issued Ex.P-14, the copy of accident register, mentioning the injuries on the palm and fingers.
(k) It was vehemently contended by learned counsel appearing for A-1 that the fact that P.W.1 did not take any steps to take the deceased to the hospital, and that he did not show the injuries to the Doctor at the hospital initially, would indicate that P.W.1 would not have been present at the place of occurrence.
(l) The abovesaid submission, in our view, does not merit consideration. P.W.1 and P.W.2, for the sake of the deceased, had gone to the scene of occurrence for the purpose of questioning the accused 1 and 2. Both P.Ws.1 and 2 never expected that all the three would be attacked by the accused. On the other hand, they went to the scene of occurrence only for enquiring and settling the dispute. While P.W.1 was talking to the accused 1 and 2, unexpectedly A-1 took out a long knife and began to stab twice on the buttocks of the deceased. When P.W.2 tried to prevent the attack, A-2 also took out his knife and gave a stab on the chest of P.W.2. This was not expected either by P.W.1 or P.W.2. Therefore, it is quite normal for these witnesses to run away from the scene of occurrence, apprehending danger to their lives. According to the prosecution, the deceased was running towards his house. P.W.2 was running towards the southern side. P.W.1 also was running away from the scene of occurrence.
(m) Under those circumstances, we may not expect that P.W.1 has to stay there itself to take the deceased to the hospital. As a matter of fact, it is seen from the evidence that from the scene of occurrence, the deceased was running for a considerable distance and then he fell down in the street just opposite to the house of the deceased. Even though P.W.1 ran away from the scene of occurrence, he was anxious to know about the deceased. Therefore, he came to the place where the deceased fell down. When he came to know that the deceased was taken to the hospital by P.W.4 Mayakkal, he immediately rushed to the hospital. It is true that he admitted that when he went to the hospital and was informed about the death of the deceased, though he was having injuries, he did not think it fit to show the same to the Doctor. It is natural for him to think that it would be appropriate to immediately tell the Police as to what had happened, because his friend has been done to death by the accused.
(n) Under those circumstances, we cannot expect that P.W.1 could have spent some more time by showing the injuries to the Doctor. In this case, after registration of the F.I.R. on the complaint of P.W.1, P.W.18 Inspector of Police sent P.W.1 to P.W.13 Doctor to get treatment. P.W.13 issued Ex.P-14, the copy of accident register. Hence, in our view, the evidence let in by P.Ws.1 and 2 is so natural and appears to have a ring of truth.
(o) Furthermore, it is noticed from the cross-examination of P.W.2 that a suggestion had been put by the accused, stating that both P.Ws.1 and 2 came to the scene of occurrence to question the accused and when P.W.2 tried to attack the accused with knife, it accidentally fell on the deceased, with the result, the deceased sustained injuries. This suggestion has been denied by P.W.2. However, through this suggestion, the presence of P.Ws.1 and 2 at the scene of occurrence, has been admitted by the defence.
(p) Though the Doctor would state that the injury on P.W.1 could be a self-inflicted one, nothing has been elicited from the Doctor that the injuries sustained by P.W.2 could possibly be self-inflicted injuries.
(q) Furthermore, the injuries on P.W.2 would clearly indicate that the injuries are so serious. As a matter of fact, P.W.14 Doctor gave an opinion that the first injury found on the chest is a grievous one. In Ex.P-15 wound certificate, the following injuries are noted:-
“1. Incised midline chest 3 x 1 c.m. probit not done.
2. Two incised wounds left thigh of 4 x 2 cm and 2 x 1 cm. Patient was admitted for rescuitation. As per Ward M.O. opinion: Liver Injury-Stab injury. Injury No. 1 is grievous. No. 2 and 3 simple." P.W.14 Doctor would say as per Ex.P-15 that injury nos.2 and 3 found on the left thigh which are incised wounds, are simple. (r) Under those circumstances, we hold that the appellants/A-1 and A-2 committed the crime in question as found by the trial Court.
11. Lastly, a faint attempt has been made by learned counsel for the appellant/A-1 that the occurrence had taken place out of sudden quarrel and as such, A-1 cannot be convicted for the offence under Section 302 I.P.C. Having regard to the kind of weapon used, namely M.O.1 knife, measuring about 2′ x 2″ and the nature of injuries sustained, it could be safely held that A-1 had intention to kill the deceased and as such, the conviction imposed on A-1 is perfectly justified.
12. It was contended by learned counsel for A-2 that the sentence imposed on A-2 is excessive. But, on going through the facts and circumstances, as narrated above, we are of the opinion that the sentence of seven years for the offence under Section 326 I.P.C. and sentence of three years in respect of the offence under Section 324 I.P.C., cannot be said to be excessive.
13. Therefore, both the appeals are dismissed, confirming the conviction and sentence imposed on the appellants/A-1 and A-2 by the trial Court.
14. Since A-2 is on bail, the trial Court is directed to take steps to secure the custody of A-2 to undergo the remaining period of sentence.