IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/04/2003
CORAM
THE HONOURABLE MR JUSTICE N.DHINAKAR
and
THE HONOURABLE MR JUSTICE S.ASHOK KUMAR
Criminal Appeal No. 448 of 2000
1. Mariappan,
Son of Perumal.
2. Mariappan,
Son of Arumugam ... Appellants.
-Vs-
State rep. by
Inspector of Police,
Tirunelveli Palam Police Station. ... Respondent
Prayer: Appeal against the judgment passed by the learned I Additional
Sessions Judge, Tirunelveli, in S.C.No. 59 of 1998 dated : 21.1 .2000.
!For Appellant : Mr.M.Paul Rajendran
^For Respondent : Mr.M.K.Subramanian
Govt. Advocate (Crl.side)
:JUDGMENT
(Judgment of the Court was delivered by N. DHINAKAR, J)
The appellants, two in number, who in the judgment will be referred to
as “A.1” and “A.2”, for the sake of convenience, were tried along with another
by name Immanuel, who was arrayed as A.3 before the learned Sessions Judge.
The allegation against A.1, A.2 and A.3 is that at 11.30 p.m. on 14.5.1997,
the accused, in furtherance of the common intention of each other, caused the
death of the deceased, Ganapathy, son of Manickam, by A.1 cutting him on the
neck and A.2 also cutting him on the back of neck and A.3 stabbing him on the
stomach and on account of the said cut injuries suffered by the deceased,
Ganapathy, his head was severed and he died. To prove the above allegation,
the prosecution, before the trial Court, examined P.Ws.1 to 16 and marked
Exs.P.1 to P.18 as well as M.Os. 1 to 8. The learned trial Judge, while
accepting the prosecution version as against A.1 and A.2 and convicting them
under Sections 302 read with 34 IPC., acquitted A.3 on the ground that he was
not implicated as an accused in the first information statement, Ex.P.1, given
by P.W.1 and that he did not also give the identifying features of A.3, when
he gave the complaint to the police. On being convicted, A.1 and A.2 were
sentenced each to imprisonment for life and each one of them was also directed
to pay a fine of Rs.1,000/- with a default sentence of three months rigorous
imprisonment. The said conviction and sentence are being challenged in the
appeal, while the acquittal of A.3 had become final, as the State has not
chosen to prefer any appeal against the said acquittal.
2. The brief facts are as follows:-
P.W.1 is the elder brother of the deceased and P.W.2. The accused
were known to P.W.1. P.Ws.1, 2 and the deceased were masons by profession and
during the relevant period, P.W.1 was residing at Lakshmipuram in C.N.Village
and prior to that, he was residing at Kuruthudaiyarpuram. Lakshmi and Chandra
were related to P.W.1 and the deceased and during the relevant period, they
were residing at Kuruthudaiyar Puram village. They were eking out their
livelihood by working at construction sites. A.1 and A.2, who are masons by
profession, developed intimacy with Lakshmi and Chandra, who were deserted by
their respective husbands. A.2 developed intimacy with Chandra and A.1
developed intimacy with Lakshmi. This was not to the liking of the deceased,
Ganapathy and he, therefore, advised Lakshmi and Chandra not to have illicit
relationship with either of the accused. The said advice of the deceased was
promptly conveyed by Lakshmi and Chandra to A.1 and A.2. On account of this,
the accused bore a grudge against the deceased.
3. At about 5.00 p.m. on 14.5.1997, P.Ws.1, 2, one Raja and the
deceased were standing in front of the provision store of P.W.4. A.1 and A.2
went there and picked up a quarrel with the deceased. They also threatened
the deceased not to interfere in their affair by telling him that if he
interferes, they will remove his head. The witnesses, who were present,
pacified the accused and sent them away. At about 10.00 p.m. on the same
night, P.W.1 developed cough as he was a T. B. patient. He, therefore, left
his house to go to the medical store to buy tablets and along with him he took
P.W.2. While P.Ws.1 and 2 were proceeding towards a junction and were near a
public lavatory, they heard someone pleading for mercy. They went behind the
lavatory to find the deceased standing there surrounded by A.1 to A.3. A.1
holding the hand of the deceased, cut him, which fell on his left shoulder.
A.2, with an aruval, cut him on the neck. The deceased fell down on the
septic tank, which was on the west of public lavatory. A.3 stabbed him on the
stomach. A.1 cut the deceased on the neck indiscriminately and severed the
head. P.Ws.1 and 2 pleaded with the accused not to cut their brother; but the
accused threatened them by telling them that they will meet the same fate if
they interfere. They also threatened the witnesses not to inform others about
the incident and ran away towards west. P.W.1, leaving P.W.2 near the dead
body of his brother, went and informed the Village Nattanmai, Shanmugam and
they proceeded to Tirunelveli Bridge Police Station, which they reached by
2.00 a.m. on 15.5.1997. At the police station, P.W.1 narrated the incident
to P.W.11, the Sub Inspector of Police. P.W.11 reduced the said statement of
P.W.1 into writing. The said statement of P.W.1 is Ex.P.1. P.W.11 registered
a case in Crime No. 302 of 1997 against A.1, A.2 and another person under
Section 302 IPC. by preparing express reports. Ex.P.13 is a copy of the
printed first information report. The express reports were sent to the higher
officials including the Inspector of Police, P.W.14.
4. P.W.14, on receipt of the information, reached Tirunelveli Bridge
Police station, where he was given a copy of the printed first information
report. He took up investigation in the crime and reached the scene of
occurrence at 6.00 a.m. and in the presence of P.W.3, prepared an observation
mahazar, Ex.P.2, between 6.00 a.m. and 6.30 a.m. He also prepared a rough
sketch, Ex.P.17. He seized blood-stained cement, M.O.4, sample cement, M.O.5
and a pair of slippers, M.O.6, under a mahazar Ex.P.3 attested by the same
witnesses. Inquest over the body of Ganapathy was conducted between 8.00 a.m.
and 11.00 a.m. in the presence of Panchayatdars and at the time of inquest,
P.Ws.1 and 2 were questioned and their statements were recorded. Ex.P.18 is
the inquest report. The officer, after the inquest, issued a requisition to
the doctor and sent the dead body to the hospital for the purpose of autopsy.
5. On receipt of the requisition, P.W.13, Reader in Pathology,
Tirunelveli Medical College, Tirunelveli, conducted autopsy on the dead body
of Ganapathy and found the following injuries:-
1.2 x 1 cm x muscle deep defence cut injury seen on the base of right terminal
phalanx. The underlying soft tissues found cut. Bone normal.
2.Irregular abrasions seen on the right lower abdomen.
3.Head and Trunk seen separately. On alignment, it belongs to one and the
same individual.
Trunk: Head severed at the level of C.3 vertebra and the raw area mesuring 18
x 14 cm. The margins are sharp with surrounding bruising several tags of cut
portion of skin at the margins indicating multiple cuts. Apart from this,
there is a a flap of skin, with soft tissue and with cut portions of cervical
vertebra seen on the left side close to the clavicle. The soft tissues along
the left clavicle were found cut and exposed. The cut portions of Trachea,
Oesophagus found protruding with fresh bleeding points.
4.9 x 4 cm. cut injury seen along the right clavicle extending to the axilla.
The soft tissues at site found cut. The right clavicle found cut in the
centre.
5.Three parallel (3 x 3 cm each) cut injuries seen just below the previous
injuries. The soft tissue found cut.
6.HEAD: Heavy cut (7 x 2 cm) injury seen on the left side of face from the
lateral end of mustache to the ankle of mandible. The angle of the mandible
along with soft tissues found cut. The head found severed at the level of C.3
along with the soft tissues and neck structures.
7.The dimensions of the head cut injuries were 18 x 6 cm. margins shows
several cuts with tags of skin hanging from the edges.
8.ON DISSECTION OF SCALP: 3 x 1 cm. bruising seen on the centre of scalp.
Vault: Normal. Brain: C/s. Pale. Base of Skull: Normal.
9.Stab injury 6 x 4 cm seen just below the umbilicus. On further exploration
the ileum cut through and through.
The doctor issued Ex.P.16, the post-mortem certificate, with his opinion that
the death was on account of decapitation of the head.
6. P.W.14, continuing with his investigation, questioned P.W.4 and
others, whose statements were recorded. On 19.5.1997, he questioned P.W.13,
the doctor, who conducted autopsy and his statement was recorded. He arrested
A.3 at 7.00 a.m. on 20.5.1997 at Tirunelveli railway station. A.3 was
questioned and he gave a statement. The admissible portion of the statement
of A.3 is Ex.P.4 and in pursuance of the said statement, he took the police
party to a Mandapam at Kurukuthurai, where from a bush, he produced two
aruvals and a knife, M.Os.1 to 3, which were seized under a mahazar Ex.P.5
attested by P.W.5. A.3 was brought to the police station and sent to Court
for remand. On the same day, he questioned P.W.5 and another and recorded
their statements. On 23.5.1997 he came to know that A.1 and A.2 have
surrendered before Judicial Magistrate, Tiruchendur. On 27.5.1997 he gave a
requisition to the Magistrate to conduct test identification parade for the
purpose of identifying A.3.
7. On receipt of the requisition, Judicial Magistrate No.6,
Tirunelveli, conducted test identification parade on 6.6.1997. At the test
identification parade, P.W.1 could not identify A.3; but he was identified by
P.W.2. Ex.P.8 are the proceedings of the learned Magistrate in respect of the
test identification parade conducted by him.
8. P.W.14, continuing with his investigation, sent the material
objects to Court. He gave a requisition to the Court to forward them for
analysis. He retired on 31.5.1997 and handed over the case file to the Sub
Inspector of Police on the date of his retirement. Later, the final report
was filed.
9. The accused were questioned under Section 313 of the Cr.P.C. on
the incriminating circumstances appearing against them. They denied all the
incriminating circumstances. They did not examine any witness on their side.
10. The learned counsel appearing for the appellants (A.1 and A.2)
submits that the occurrence could have taken place much later to 11.0 0 p.m.
and the prosecution having failed to examine any independent witness, the
trial Court was not justified in convicting the two accused on the basis of
the evidence of two close relatives. We have heard the learned Government
Advocate (Crl.side) on the above contentions and perused the recorded
evidence.
11. The cause of the death of Ganapathy is beyond dispute. P.W.13,
the doctor, conducted autopsy on the dead body of Ganapathy and found the
injuries, which he noted in Ex.P.16, the post-mortem certificate. In his
deposition before Court, he has stated that the death was on account of
decapitation. On the medical evidence, we hold that Ganapathy died on account
of homicidal violence. The said fact was also not disputed by the accused
before the trial Court.
12. P.Ws.1 and 2, the brothers of the deceased, were examined to
prove that A.1 and A.2 inflicted the injuries, which resulted in his death.
It is the evidence of P.W.1 that Lakshmi and Chandra, who were related to
them, developed intimacy with A.1 and A.2 and the deceased advised them not to
continue their relationship with A.1 and A.2. It is the further evidence of
P.W.1 that Lakshmi and Chandra, in turn, informed A.1 and A.2 about the advice
rendered by the deceased and the accused were, therefore, not happy with the
deceased. According to P.W.1, at about 5.00 p.m. on 14.5.1997, he was
standing in front of the provision store of P.W.4 along with the deceased and
his brother, Murugan and Raja was also there. It is the evidence of P.W.1
that the accused, on seeing the deceased at that place, asked him as to why he
is interfering in their personal affairs and also took him to task and that
they threatened the deceased with his life by telling him that if he
interferes, his head will be severed. This is said to be the motive for the
incident, which took place at about 11.00 a.m. or 11.30 a.m. on the same
day. According to P.W.1, he was a T.B. patient and at about 10.00 p.m., he
developed some respiratory problem and wanted to purchase medicine. He has
stated that he left his house for the medical store taking along with him his
brother, P.W.2 and while they were on their way to the medical store, they
heard someone pleading for mercy and the sound was heard emanating from behind
a public lavatory. According to P.Ws.1 and 2, both of them went there only to
find the deceased surrounded by A.1 to A.3. They have further deposed that
the deceased was first cut by A.1 followed by A.2 and after receiving the said
cut injury from A.2, the deceased fell down on the septic tank. A.3, then,
stabbed the deceased. They have also stated that A.1 indiscriminately cut the
deceased on the neck and severed the head. It is the evidence of the
witnesses that they were also threatened by the accused with their life and
that after the incident, they went towards west. The evidence of P.Ws.1 and 2
further indicate that after the incident, P.W.2 was left near the dead body
and P.W.1 went and informed Shanmugam, the Village Nattanmai and that both of
them went to Tirunelveli Bridge Police Station and a complaint was given by
P.W.1 to P.W.11, the Sub Inspector of Police at 2.00 a.m. The said complaint,
which was registered as a crime at 2.00 a.m., was received by the Court at
6.00 a.m., as could be seen from the original records. The occurrence having
taken place at 11.00 p.m. on 14.5.1997, the complaint having been registered
as a crime at 2.00 a.m. on 15.5.1997, which was also received by the
Magistrate at 6.00 a.m. on the same day, there is no delay in laying the
complaint. In the said complaint, P.W.1 has mentioned A.1 and A.2 as the
assailants of the deceased and has also stated that yet another person, who
could be identified, inflicted the stab injury. As we have already stated
that A.3 was acquitted because P.W.1 did not give the identifying features of
A.3 and a perusal of the evidence of P.W.6 shows that though P. W.2
identified A.3 at the test identification parade, he was not identified by
P.W.1. In any event, the fact remains that in the complaint, Ex.P.1, the name
of A.1 and A.2, who stand convicted and who are the appellants in the appeal,
have been implicated as persons, who inflicted the fatal injuries on the
deceased. On going through the cross-examination of P.Ws.1 and 2, we find no
material in favour of the defence and the only suggestion made to the
witnesses is that they were not there at the time of incident and later, came
to the scene of occurrence on coming to know about the occurrence. We find no
infirmity in their evidence and merely because they happened to be the
relatives of the deceased, their evidence cannot be rejected. It is common
knowledge that close relatives will be more interested in implicating the real
assailant and will not come out with the false version implicating a person,
who is not connected with the crime. The defence did not also elicit any
answer in favour of the accused to show that P.Ws.1 and 2 were inimical
towards the accused for them to implicate them. On going through their
evidence, we find no infirmity in it. It is no doubt true that there were
several houses near the scene of occurrence and the non-examination of the
persons, who were present in those houses at that time, in our view, is not
fatal to the prosecution. The occurrence had taken place at 11.30 p.m. and
most of the inmates of the house would have been in their beds. P.Ws.1 and 2
were there at the scene of occurrence as they were proceeding to a medical
store to purchase tablets and therefore, had an opportunity of witnessing the
incident and merely because there were several houses near the scene of
occurrence, this Court cannot infer that the inmates of the houses also
witnessed the incident and the prosecution withheld those witnesses from the
Court. The contention of the counsel on the above point, therefore, fails.
13. The other contention of the counsel that the occurrence could
have taken place much after 11.30 p.m. is to be stated only to be rejected.
It is no doubt true that P.W.13, the doctor, who conducted autopsy has stated
that it is possible that the deceased would have died about 9 to 10 hours
prior to autopsy, which was conducted at 12.30 p.m. on 15.5.1997. The above
evidence of P.W.13 is opinion in nature. The doctor, of course, found fully
digested food particles and has also stated that he found fully digested
non-vegetarian food in the stomach of the deceased. In this background, the
evidence of P.W.1 has to be considered. He has stated that after the incident
at 5.00 p.m., which took place in front of the shop of P.W.4, he returned to
his house and took food along with his brothers and later left for the shop at
10.00 p.m., when he developed some difficulty. This shows that the deceased
had his last meals by about 6.00 p.m. or 7.00 p.m. on 14.5.1998. The
doctor, in cross-examination, has stated that as the deceased had taken
non-vegetarian food, it will take about four hours for digestion. If the
deceased had taken his last meals at 7.00 p.m. – there is no direct evidence
as to when the deceased had his last meals; but it could be inferred from
P.W.1’s evidence that the deceased could have taken his last meals at 7.00
p.m. – then the evidence of the doctor that the deceased would have met his
end after four hours after his meals fits in with the prosecution version that
the deceased was attacked at 11.00 p.m. We, therefore, accept the prosecution
version and hold that A.1 and A.2 inflicted injuries on the deceased at 11.00
p.m. and the injuries inflicted by A.1 are fatal.
14. The learned counsel finally submits that A.2 may be spared, as
according to him, the materials do not indicate that he shared the common
intention of A.1 in causing the death of Ganapathy.
15. We are unable to accept the said submission. The facts, which we
have extracted above, show that after A.1 commenced the attack on the
deceased, A.2 followed him by cutting him on the neck. On receiving the
injury at the hands of A.2, the deceased, Ganapathy, fell on the septic tank
and later, A.1 inflicted indiscriminate cuts on the neck and also severed his
head. Section 34 IPC. lays down the rule of joint responsibility for
criminal act performed by a plurality of persons and even mere distance from
the scene of crime cannot exclude the culpability of the crimes. Criminal
sharing, overt or covert, by active presence or by distant direction making
out a certain measure of jointness in the commission of the act is the essence
of Section 34 and for appreciating the ambit and scope of Section 34 IPC., the
preceding Sections 32 and 33 have always to be kept in mind. Under Section 32
IPC. acts include illegal omissions and Section 33 defines the “act” to mean
as well a series of acts as a single act and the word “omission” denotes as
well a series of omissions as a single omission. The distinction between a
“common intention” and a “similar intention” which is real and substantial, is
also not to be lost sight of. The common intention implies a pre-arranged
plan but in a given case it may develop at the spur of the moment in the
course of the commission of the offence. Such common intention which
developed at the spur of the moment was different from the similar intention
actuated by a number of persons at the same time. The distinction between ”
common intention” and “similar intention” may be fine but is nonetheless a
real one and if overlooked may lead to miscarriage of justice. To attract
Section 34 IPC. two postulates are indispensable. (1) The criminal act
(consisting of a series of acts) should have been done, not by one person, but
more than one person. (2) Doing of every such individual act cumulatively
resulting in the commission of criminal offence should have been in
furtherance of the common intention of all such persons vide SURESH -vs- STATE
OF U.P. (JT 2001 (3) SC 336.
16. When we apply the above principles to the facts of the case, it
could be seen that when P.Ws.1 and 2 saw A.1 and A.2, both of them were armed
with aruvals and A.1 inflicted the first cut on the deceased followed by A.2.
After A.2 inflicted the cut on the deceased, Ganapathy, he fell down on the
septic tank, which enabled A.1 to inflict several other cuts on the neck and
resulted in complete severance of his head from the body. If A.2 did not
share the common intention of A.1, then there was no necessity for A.2 to have
been present at the place along with him arming himself with an aruval and he
also joined A.1 in attacking the deceased by cutting him. The facts,
therefore, show that A.2 shared the common intention of A.1 and he is liable
to be punished with the aid of Section 34 IPC. The trial Judge was justified
in finding both the accused guilty under Section 302 read with 34 IPC. We
find no reason to interfere with the conviction and sentence. The appeal
deserves to the dismissed and it is, accordingly, dismissed.
Index:Yes
Website:Yes
bs/
To,
1.The I Additional Sessions Judge, Tirunelveli.
2.-do- through the Principal Sessions Judge, Tirunelveli.
3.The Inspector of Police, Tirunelveli Bridge Police Station.
4.The Superintendent, Central Prison, Palayamkottai.
5.The Collector, Tirunelveli District.
6.The Director General of Police, Madras.
7.The Public Prosecutor, High Court, Madras.