CASE NO.: Appeal (crl.) 988 of 2001 PETITIONER: MUNNUSWAMY AND OTHERS Vs. RESPONDENT: STATE OF TAMILNADU DATE OF JUDGMENT: 14/08/2002 BENCH: N. SANTOSH HEGDE & BISHESHWAR PRASAD SINGH. JUDGMENT:
Bisheshwar Prasad Singh, J.
This appeal is directed against the judgment and order of
the High Court of Madras dated 21st September, 2002 passed in
Criminal Appeal. No.293 of 1990 filed by the appellants against
the judgment and order of the Sessions Judge dated 3rd August,
1990 whereby appellants 1 and 2 were found guilty of the
offences under Sections 341, 302/109 IPC and appellant No.3
was found guilty of the offence under Section 341 and 302 IPC.
The appellants have been sentenced to 6 months rigorous
imprisonment under Section 341 IPC and life imprisonment
under Section 302/109 and 302 IPC. The High Court by the
impugned judgment and order dismissed the appeal and affirmed
the judgment and order of the trial court.
Special leave was granted limited to the question as to
whether the offence proved falls under Section 304 IPC and
whether the conviction and sentence under Section 302, 302/109
IPC calls for modification.
Appellant No.1 Munuswamy is the father of appellants 2
and 3, namely Kumaresan and Selvam. It is the case of the
prosecution that on 28th April, 1989 at about 3.00 p.m. while
PW.3 Adhimoolam was drying beedi leaves, appellant No.1 came
at about 4.00 p.m. and waited by the side of the road. About half
an hour later deceased Ravi came on a bicycle. He was followed
by appellants 2 and 3 who also reached the place of occurrence
following him. Appellant No.1 stopped the deceased while
appellants 2 and 3 who came from behind dashed their bicycle
against the bicycle of the deceased. The deceased left his
bicycle and started running away chased by the appellants.
Ultimately the accused over-powered him and while appellant
No.1 caught hold of the right hand of the deceased, accused No.2
caught hold of the left hand of the deceased. Appellant No.1
ordered that the deceased should be stabbed and immediately
appellant No.3 took out a pen knife from his hip and stabbed the
deceased on the right side of his chest. They dragged the
deceased and made him lie down near the road. This incident
was also witnessed by Ravi, PW. 4 who was grazing his cattle
near the scene of occurrence. They reported the matter to the
father of the deceased who went to the police station and lodged
the complaint. After investigation, the appellants were put up for
trail and were ultimately found guilty of the offences as earlier
noticed.
The medical evidence on record disclosed the following
injuries on the body of the deceased :-
1. An incised gaping wound 8 cm x 3 cm over (R)
interior aspect of chest at the level of right nipple
with exposing muscle and rib (4th) beneath.
2) A lacerated wound 3 cm x 2 cm x bone depth seen
over ( R ) side of parietal region.
3) An abrasion 3 cm x 2 cm seen over ( R ) leg.
4) An abrasion 4 cm x 3 cm seen over ( R ) buttock
region.
On Internal examination : Thorax : An incised
wound 6 cm x 2 cm x lung beneath seen on the
anterior aspect of pleura with 1200 ml. of bloody
fluid in the ( R ) Throacic cavity. Lungs : Right
lung 510 g. wt. An incised wound 2 cm in breath
over the edge of medical aspect of upper lobe of
right lung. C/s. normal appearance and pale. Left
Lung : 500 gms. wt. C/s. normal appearance and
pale.
Heart : 340 g. wt. Great vessels on the anterior
aspect of the Aorta a cm x cm punctured like
wound seen at the root of Aorta with clotted blood
coming out. On pressure from the Aorta.”
According to PW.2, the doctor who conducted the post
mortem examination on the body of the deceased, the deceased
died of shock and hemorrhage due to injury on vital organs. It is
also the case of the prosecution that the deceased died almost
instantaneously.
We have carefully perused the evidence on record and we
find that this is not a case where the appellants accidentally met
the deceased with whom they had enmity of some sort, and at the
spur of the moment the assault took place.
It was sought to be contended on behalf of the appellants
that appellant No.1 had merely caught the hand of the deceased
and appellant No.2 also did the same. It was only appellant No.3
who stabbed the deceased. According to learned counsel,
appellants 1 and 2 can only be held guilty of the offence under
Section 341 IPC while the appellant No.3 can at best be said to
have committed an offence punishable under Section 304 IPC.
They never intended to commit the murder of the deceased since
the knife used by appellant No.3 was only a pen knife. Learned
counsel, however, could not controvert the fact that the knife had
a long blade enough to cause the injuries of the nature found. It
is also worth noticing that apart from two abrasions there was
also an incised gaping wound on the chest and a lacerated wound
over the right side of parietal region.
Having regard to the nature of the injuries and their
location, it would be difficult to accept the submission that the
person who assaulted the deceased with a knife did not intend to
cause the death of the deceased.
The appellants came to the place of occurrence in a
planned manner. The evidence is clear that appellant No.1 came
first and waited by the side of the road. Thereafter appellants 2
and 3 came on a bicycle closely following the deceased.
Appellant No.1 stopped the deceased and appellants 2 and 3
made sure that the deceased did not escape by dashing their
bicycle against his bicycle with the result that the deceased had to
abandon his bicycle and run for his life. Even thereafter they
chased him and while appellants 1 & 2 caught hold of his hands,
appellant No. 3 stabbed him with the knife. These facts clearly
disclose a pre-concerted plan to assault the deceased at the place
selected by the appellants.
Appellant No.1 is said to have exhorted his son to stab the
deceased. Obviously he knew that his son was carrying a knife
or some such weapon, otherwise the words ‘stab’ would not have
been used by appellant No. 1. He may have merely exhorted his
son to assault the deceased. This itself is a clear indication of
the fact that accused No. 1, the father, knew that his son was
carrying a knife.
In the facts and circumstances of the case we are satisfied
that so far as appellant No.3 is concerned, he is guilty of the
offence under Section 302 IPC. It will not be possible to bring
his case under any of the exceptions and to record his conviction
and sentence under Section 304 IPC.
So far as appellants 1 & 2 are concerned, they have also
been rightly found guilty of the offence under Section 302/109
IPC. The evidence leaves no room of doubt that the appellants
had entered into a conspiracy for killing the deceased and
pursuant thereto appellant No.1 waited at the spot while
appellants 2 and 3 followed the deceased on their bicycle. All of
them chased the deceased. After he was over-powered by
appellants 1 & 2, on the order of appellant No.1, appellant No.3
stabbed him. It cannot be said in the facts and circumstances of
the case that the act of appellant No.3 was merely his individual
act, and that appellants 1 and 2 cannot be held guilty of the
offence under Section 302/109 IPC. On the facts found this is a
case of abetment by conspiracy in which all the conspirators were
present and actively participated when the plan was executed.
We, therefore, find no merit in this appeal and the same is
accordingly dismissed.
