JUDGMENT
M. Karpagavinayagam, J.
1. The appellants are A. 1 to A.4. The first appellant was convicted for the offences under Sections. 302 and 324, I. P. C. (two counts). The second appellant was convicted for the offence under Section 324 (two counts). The third appellant was convicted for the offence under Section 323, I. P. C. (two counts) and the fourth appellant was convicted for the offences under Sections. 323 and 325, I. P. C. Challenging the same, this Appeal has been filed.
2. The brief facts, leading to the conviction of the appellants, are as follows :
(a) Madavan, the first accused, is the son of Kunju Filial, the third accused. Packirisamy, the second accused, is the son of Ramayan, the fourth accused. Accused 3 and 4 are brothers. The deceased Radha Krishnan. P. W. 2 Kannayan, P. W. 4 Anbazhagan and P. W. 5 Arivalagan are the brothers. P. W. 1 Kumar is the sister’s son of the deceased and these witnesses. All these witnesses, the deceased and the accused are residing in North Street, Serumangalam village. Since there was frequent setting of fire to the huts in the village, people in the village were guarding the village by carrying weapons in their hands.
(b) The fateful occurrence took place on 19-8-2001, at about 11.30 p.m. Madavan-A1 was playing cards with his friends in front of the house of P. W. 4 Anbazhagan. While so, A.1 used filthy language, when talking to his friends. P. W. 1 Kumar questioned A. 1 as to why he had to use the vulgar language in front of the houses, wherein womenfolk are residing. Questioning his act, A.1 scolded P. W. 1 and attempted to attack him, by using a knife. P. W. 1 prevented the same, with the result, P. W. 1 sustained injury in his left thumb.
(c) On hearing the noise, the deceased Radha Krishnan, the uncle of P. W. 1, came to the scene and questioned the act of A. 1. Then, A. 1 turned towards the deceased and attempted to attack him. At that point of time, P. W. 1, with ‘uruttukattai’, attacked A. 1 and caused injuries on his head. Despite that, A. 1, with M. O. 1 knife came to the deceased and gave a heavy blow on his rib. At that time, A.2 to A.4 also came to the place of occurrence. A.2 attacked the deceased on his face, A.3 beat the deceased on his left shoulder. Then, P. W. 2 Kannayan carne and shouted. Then, A.2 cut on the forehead of P. W. 2 and A.3 hit P. W. 2 with stick on his lips and left, ear. Then, P. W. 3 Tamilarasan, son of P. W. 2, came to the spot, on hearing the noise and questioned, the accused. Then A. 1 stabbed P. W. 3 on. his back. P. W. 4 Anbazhagan also came and tried to snath Aruval from A.2. A,4 hit P. W. 4 on his nose and lips, P. W. 5 Arivalagan came to the spot and prevented the accused from attacking further. A.3 and A.4 beat P. W. 5 with sticks, causing injuries on his both hands.
(d) Due to the injuries, both the deceased Radha Krishnan and P. W. 3 Tamilarasan fell down. Immediately, the deceased and P. W. 3 were taken to Mannarkudi Hospital by P. W. 7 Ramadas. P. W. 10 Doctor attached to the Mannarkudi Hospital, declared the deceased dead. One Ramamoorthy brought P. Ws. 2, 4 and 5 to Mannarkudi Hospital. P. Ws. 2 and 3 were thereafter referred to the General Hospital, Tanjore.
(e) In the meantime, P, W. 1 went to Pamani Police Station and gave a complaint to P. W. 14, the Sub-Inspector of Police. Then, a case was registered for various offences against all the four accused, including the offence of murder under Section 302, I.P.C. and intimation was sent to P. W. 17, the Inspector of Police, who took up the investigation.
(f) P. W. 17 went to the spot and prepared the observation mahazar, drew rough sketch and collected sample earth and bloodstained earth. Thereafter, he went to the Hospital and conducted the inquest on the body of the deceased. Then, the body of the deceased was sent for Post Mortem.
(g) P. W. 11 Doctor conducted the Post-Mortem and issued Ex. P. 16, Post-Mortem Certificate. He opined that the deceased would appear to have died of shock due to haemorrhage and injury to vital organs-liver and right lung.
(h) Since A. 1 and A.3 sustained injuries, they were sent for medical examination. P. W. 18 Doctor examined them and issued Accident Registers-Exs. P. 27 and P. 28. According to the Doctor, the injuries are simple in nature.
(i) Before sending the accused for remand, P. W. 17 the Inspector of Police recorded the statement of A. 1, on which basis, a case was registered as a counter case in Cr. No. 97/ 2001, which is Ex. P. 30.
(j) Thereafter, P. W. 19 took up further investigation and examined the witnesses. Ultimately, he filed the charge-sheet in the case in which Radha Krishnan died. Since the counter case was referred by P. W. 17 already as ‘mistake of fact’, the referred report has been filed by P. W. 19 before the Court concerned.
(k) During the course of trial, P. Ws. 1 to 19 were examined, Exs. P. 1 to P. 31 were filed and M. Os. 1 to 8 were marked.
(l) When the accused were questioned under Section 313, Cr. P. C. regarding the incriminating materials, they denied their complicity in crime. They stated that a false case has been foisted against them. However, no evidence was adduced on the side of the defence.
(m) The trial Court, after having analysed the materials available on record, found the accused guilty of the offences, referred to above, and convicted them thereunder. Hence, this Appeal by all the accused (A. 1 to A. 4).
3. Mr. R. Srinivasan, learned Counsel for the appellants would take us through the entire evidence and contend that the entire prosecution case would bristle with the infirmities, as in this case, the witnesses have not come out with truth. According to the learned Counsel for the appellants, the investigation has not been conducted properly, both by P. W. 17 and P. W. 19. In the absence of any explanation for injuries on the accused, which are serious in nature, the prosecution case cannot be accepted and as such, the accused are entitled to be given the benefit of doubt and consequently, they have to be acquitted.
4. On these aspects, we heard the learned Additional Public Prosecutor.
5. We have given our thoughtful consideration to the rival contentions and also gone through the records.
6. According to the prosecution, the occurrence took place on 19-8-2001 at about 11.30 p.m. Since A. 1 used vulgar language, while talking to his friends, with whom he was playing cards, P. W. 1 questioned him.
Then, there was a quarrel and P. W. 1 was attacked with the knife by A. 1. On hearing the noise, the deceased Radha Krishnan, relative of P. W. 1, came out of the house and scolded A. 1. Thereafter, A. 1 attacked the deceased. P. Ws. 2 to 5, the relatives of P.W. 1, came and questioned A.1. Then, A.2 to A.4 also came there and attacked the deceased and the witnesses. On sustaining serious injuries, both Radha Krishnan and P. W. 3 Tamilarasan fell down on the floor. All the injured were taken to the Hospital, where Radha Krishnan was declared dead and treatment was given by P. W. 10 to all the witnesses and ultimately, P. Ws. 3 and 4 were sent to the Tanjore Medical College Hospital.
7. Though the counsel for the appellants would refer to some variations in the evidence of eye-witnesses, we are not able to countenance the said submission, as in our view, the evidence of these witnesses is cogent and the same is corroborated by the other witnesses, including the evidence, adduced by the Doctors.
8. The earliest documents available in this case are the Accident Registers relating to the deceased and P. W. 2 Kannayan. The Accident Register-Ex. P. 9 relating to the deceased and the Accident Register-Ex. P. 12 relating to P. W. 2 would indicate that P. W.7 took the victims to the hospital. After the deceased was declared dead, P. W. 1 went to the Police Station and lodged the complaint Ex. P. 1, which has been registered at 3.00 a.m. The original records would show that the FIR reached the Magistrate at 6.00 a.m. on the same day. So, the fact that the deceased and other injured were taken to the hospital immediately after the attack, has been clearly mentioned in Ex. P. 1. In Ex. P. 1, P. W. 1 would specifically mention that P. W, 7 and himself took the victims to the Hospital.
9. Though P. W. 1 would give complete details about the entire occurrence, the evidence of P. Ws. 2 to 5 would clearly indicate that they have deposed only in respect of the attack made on them and the injuries sustained by them and they did not choose to say anything about the attack made by A.1 on the deceased.
10. On going through the entire evidence, we feel that the evidence adduced by all these witnesses is quite natural and reliable. As correctly pointed out by the learned counsel for the appellants, even though the counter complaint would indicate that the defence of the accused is a private defence, no materials have been placed before the Court to indicate that the occurrence had taken place and the accused attacked the deceased while exercising their right of private defence.
11. As the learned Counsel for the appellants felt some difficulty in convincing this Court for acquittal of the accused, he confined himself with the nature of the offence committed by the accused. According to him, even assuming that the entire prosecution case is true, the offence would not come under Section 302, I. P. C. and it may fall under Section 304(1), I. P. C., since the occurrence had taken place out of a sudden quarrel and heat of passion and as such, Exception 4 to Section 300, I. P. C., may be invoked.
12. We find force In this contention. There are four ingredients in Exception 4 to Section 300, I. P. C. To invoke Exception 4 to Section 300, I. P. C., these four requirements must be satisfied. They arc as follows ;
1. It was a sudden fight.
2. There was no premeditation,
3. The act must have been committed in a heat of passion.
4. The assailant had not taken any undue advantage or acted in a cruel or unusual manner.
13. On going through the entire evidence, we feel that all the above requirements have been satisfied in this case. There is no dispute that all these persons belong to one village, who have gathered there for guarding the village from the miscreants, who were attempting to set fire to the huts. Admittedly, there was no enmity between the prosecution party and the accused party.
14. As admitted by P. W. 1, the occurrence had taken place in a sudden fight when P. W. 1 questioned the act of A. 1, who used vulgar language. Even according to the prosecution, all the prosecution party and the accused party were having weapons in their hands. There was no premeditation. When all the witnesses questioned A. 1, he attacked the deceased and other accused attacked the witnesses. Thus, it is clear that the occurrence had taken place in a fight and heat of passion. Therefore, it cannot be said that the occurrence had taken place in a cruel manner, especially when the witnesses also attacked the accused, with the result, A. 1 and A.3 sustained injuries. Since the witnesses also had weapons in their hands, it cannot be said that the accused took undue advantage and acted in a cruel manner.
15. Further, it is noticed that the accused had not done anything, to make an attempt to abscond themselves. On the other hand, they were arrested on the same day. P. W. 17, after noticing injuries on A. \ and A.3, took steps to send them to hospital, where P. W. 18 gave treatment for the injuries sustained by them. Even though they were arrested, P. W. 17 thought it fit to record their statements and treating the statement of A. 1 is a counter complaint, he conducted the investigation in both the cases. Ultimately, the counter case was referred by the Investigating Officer concerned, concluding that the accused persons alone were the aggressors. However, in view of the factual situation, where all the prosecution witnesses and the accused were having weapons in their hands and the occurrence had taken place in a sudden fight, without any premeditation and in a heat of passion, it cannot be concluded that A. 1 had the Intention to kill the deceased, thereby attracting the offence under Section 302, I. P. C.
10. On going through the Post Mortem Report, it is clear that there are serious injuries caused on the vital parts of the body of the deceased viz., lungs and liver. Therefore, It is clear that there must be art intention on the part of A. 1 to cause injury on the vital parts of the body, as is likely to cause death. Therefore, A.1 is liable to be convicted for the offence under Section 304(1), I. P. C., instead of Section 302, I. P. C. and accordingly, he is convicted. He is to undergo the imprisonment for seven years, instead of life imprisonment.
17. In other respects, the conviction of other accused is confirmed. The rigorous imprisonment for two years imposed on A. 4 for the offence under Section 325, I. P. C., in our view, is so harsh, since only the tooth was shaky. Therefore, it would be appropriate to modify the sentence of two years into one year for the offence under Section 325, I. P. C.
In the result,
(i) This Criminal Appeal is allowed in part.
(ii) The conviction of A. 1 Madavan for the offence under Section 302, I. P. C. is modified to one under Section 304(1), I.P.C. and the sentence is modified from life imprisonment to R. 1. for seven years. The conviction and sentence for the offence under Section 324, I. P. C. (two counts) is confirmed.
(iii) The conviction and sentence of A,2 Paeklrisamy for the offence under Section 324, I.P.C, (two counts) and that of A.3 Kunju Filial for the offence under Section 323, I. P. C. (two counts) is confirmed.
(iv) The conviction of A,4 Ramaiyan for the offences under Sections 323 and 325, I. P. C, is confirmed. However, the sentence for the offence under Section 325, I.P.C. is modified and he is sentenced to undergo R.I. for one year, instead of two years. The sentence for the offence under Section 323. I, P. C, is confirmed.