IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/10/2002
CORAM
THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR
and
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
Crl.Appeal No.725 of 1997
1. Muthu @ Durai Pandi
@ Muthulingam
2. Esakkipandi
3. Velu
4. Masanam .. Appellants
-Vs-
State through Inspector of Police
Meignanapuram Police Station
Tuticorin
Tuticorin District. .. Respondents
Criminal Appeal against the judgment dated 8.9.1997 made in S.C.No.19 of 1994
on the file of the learned Principal Sessions Judge, Tuticorin.
!For appellants : Mr.C.S.S.Pillai
^For respondents : Mr.Navaneethakrishnan
Addl. Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by V.S.SIRPURKAR,J.)
This appeal is at the instance of the four accused, three of whom have been
convicted with the aid of Section 34, I.P.C., while the fourth accused –
Masanam, has been convicted for an offence punishable under Section 302,
I.P.C., simplicitor.
2. This is a classic example of how our caste system has permeated
into the day-to-day life, giving rise to the dastardly crimes.
3. Meignanapuram is a small hamlet. The members of both the
communities, viz., Thevar community and Scheduled Caste community, live there.
While all the accused persons belong to the Thevar community, the deceased
Sekar belongs to the Scheduled Caste community. The incident was conceived on
17.5.1992 when Sekar has called one Narayanan by his name. Taking that to be
a great insult, there was a panchayat held, and there was also a compromise
effected at. This was done on 1 8.5.1992. However, it seems that the accused
persons did not brook this insult of being called by name by a Scheduled Caste
member. Therefore, the incident seems to have happened on 20th of May, 1992.
4. The prosecution story is that the deceased Sekar, along with
P.W.1, Sundar alias Rajeswaran and P.W.2 Chinnathambi, were coming back from
the nearby coffee shop after taking coffee. At that time, the accused persons
Muthu, Esakki Pandi and Velu Thevar, A1, A2 and A3 respectively, were going.
It is at that time, the assault took place at the instance of A4 – Masanam,
who, probably, was following these three accused persons. Finding Sekar and
his two associates, A4 – Masanam tried to assault P.W.1 – Sundar alias
Rajeswaran, and at that time, that assault was averted because of the
intervention of Thavamani Thevar, and immediately, the assailant A4 – Masanam,
changed his direction and gave aruval (billhook) blows and cut Sekar.
5. The case of the prosecution is that when Sekar started running
away after the initial assault, he was stopped by the accused A1, A2 and A3,
so that he becomes available for further assault by A4 – Masanam, and
thereafter, A4 – Masanam further assaulted Sekar, who, probably, died on the
spot. All these took place between 7.45 to 8.00 am. Thereafter, the report
of this incident was made by P.W.1 – Sundar alias Rajeswaran and PW.2 –
Chinnathambi in Authikadu, within the jurisdiction of Meignanapuram, the small
hamlet.
6. The Investigating Officer registered the case in the afternoon and
then visited the spot immediately. It seems that the inquest report was
prepared somewhere in the afternoon, and the body was sent to post-mortem
immediately at about 4 O’ Clock. The post-mortem report – Ex.P7 suggested
that the deceased had died due to the assault and hemorrhage, and because of
the injuries in the vital parts, resulting in shock. The accused persons came
to be arrested in another two days. On the basis of the report of the
Investigating Officer after completion of investigation and filing of charge
sheet and after the committal proceedings were over, the matter was made over
to the Sessions Judge.
7. Before the Sessions Judge, the defence was that, in fact, due to
the prevailing enmity between the two communities, the said Sekar was done to
death by somebody and it was only due to suspicion, the accused persons were
roped in. A further defence haltingly taken was that of the private enmity.
However, the defence does not prevail and the accused persons came to be
convicted as under.
8. Before the Sessions Court, the prosecution examined two
eyewitnesses P.W.1 and P.W.2 and the other two witnesses, they being P.W.3 –
Selvakumar and P.W.4 – John alias Thangadurai, in support of their case. It
was also pointed out by the prosecution that during the investigation, the
fourth accused had discovered the place where the aruval (billhook) was hidden
by him and that the aruval (billhook) was blood-stained. It was also sought
to be proved that there was a motive of previous enmity between the accused
persons and the deceased. It was on this basis that the learned Sessions
Judge thus came to the conclusion that the offence of murder punishable under
Section 302, I.P.C. was proved as against the fourth accused, while, the
other three accused, they being accused-1 to 3, shared the common intention to
commit the murder. Feeling aggrieved by this verdict, the present appeal is
filed before us.
9. The learned counsel took us through the evidence of eyewitnesses as also
the documentary evidences, such as the port-mortem report and the first
information report. The whole thrust of arguments was that the prosecution
had miserably failed to prove beyond reasonable doubt that the four accused
persons were perpetrators of the crime. The learned counsel took us through
the evidence of P.Ws.1 and 2 to begin with, to suggest that in fact there was
a caste background to the whole crime inasmuch as Sekar, the deceased had
called Narayanan by his name and that was felt as an insult, because of which,
there was a panchayat held and the matters were actually solved. The learned
counsel tried to suggest that if the matters were solved in the panchayat,
then there was nothing for the accused again to assault the said deceased
and/or his party. Thus, the gravamen of the contention is that there was
hardly any motive available to the accused persons to commit the above crime.
The question of motive has to be put behind, once there is a direct testimony
available. Unfortunately, for the accused persons in this case, such direct
testimony was available in the evidence of P.W.1 and P.W.2.
10. P.W.1, in his evidence, has given a graphic description of the
background. He has referred to the incidents of 17.5.1992 and 18.5.19 92. He
has also referred to the fact that on 18.5.1992, Sekar was obstructed by the
fourth accused, and on his threat that his head will be severed, Sekar had
taken the aid of his brother. P.W.1 has also deposed that he had told this to
P.W.4 – John alias Thangadurai, on which, P.W.1 and P.W.4 – John alias
Thangadurai again met the elderly persons of Thevar community and again
settled the matter. P.W.1 refers to the incident of 20th May 1992 that while
he and P.W.2 Chinnathambi, as also Sekar, were returning from the coffee shop,
A1 to A3 obstructed them and A4 – Masanam attempted to cut P.W.1.
11. When we go closely through the evidence of P.W.1, it would be seen that
he had stated in the Court that the assault was made by A4 – Masanam, not on
the deceased, but on himself. He points out that when A4 – Masanam tried to
assault him, Thavamani Thevar, who was present, thwarted that attack. It is
only thereafter that he refers to the assault by the fourth accused on Sekar.
It is very significant to note here that P.W.1, till then, did not refer to
the accused persons A1, A2 and A3. It cannot also be made out from his
evidence that all the four accused came together. It is obvious from the
evidence that the first three accused were ahead, while the fourth accused was
behind them. The witness then goes on to graphically describe the assault on
Sekar and suggests that, sensing the assault and being injured, Sekar then
started running helter and skelter; but he was stopped by the other three
accused, A1, A2 and A3, so that he becomes available for further assault by A4
– Masanam.
12. The learned counsel suggests, and in our opinion, rightly, that
the witness has not told in what manner was Sekar stopped. The words used in
Tamil “Xltplhky; tHpkwpj;jdh;”, meaning stopped or prevented from running.
However, it is to be noted that the witness is completely silent in the manner
in which the other three accused persons stopped Sekar. Again, it is very
difficult to accept that, after being assaulted in a very serious manner by
the fourth accused, how Sekar would be in a position to run hither and
thither. Therefore, this part of the story appears to be unnatural, and the
story of subsequent assault by the fourth accused appears to be less natural.
When we go through the cross examination of this witness, there is hardly any
cross examination on the main incident of assault. On the other hand, there
are some suicidal suggestions given, which establish the presence, not only of
the fourth accused on the spot, but also of this witness, along with the other
witness P.W.2, namely, Chinnathambi. The suggestions also establish the
presence of the other accused persons. However, the question would be whether
their mere presence would, by itself, be sufficient to convict them wit h the
aid of Section 34, I.P.C. We propose to examine this question in the later
part of this judgment when we appreciate the evidence of P.W.2, who is the
only other eye-witness.
13. Be that as it may, there has been little or no crossexamination
of P.W.1 on the question of assault. The evidence witnessed insofar as the
assault is concerned, appears to be less natural. He has not exaggerated the
evidence in any manner and his presence on the spot can also not be doubted,
when it is corroborated by the evidence of P.W.2. That apart, it is clear
that it is only this witness who has gone and reported the matter to the
police station almost immediately. It could be seen that the police station
was 8 kms away from the spot. According to the learned defence counsel, it
was 6 kms. It could be seen that this discrepancy of 2 Kms. clearly makes no
difference, when the matter remains that it was this witness and P.W.2 who
went to the police station, which is also corroborated by the evidence of
P.W.10-Ganapathy, who refers to both P.Ws.1 and 2. There is no
cross-examination to P.W.10 on this issue. Therefore, the evidence of P.W.1
can be safely accepted at least in so far as the assault is concerned.
14. It was tried to be stated that there are some discrepancies in
the matter of First Information Report. While according to P.W.1, he had
written the First Information Report himself, according to P.W.2, he had
dictated it and then some other person had written it. That, again, is
completely immaterial so long as the First Information Report has been proved
properly. It was, therefore, suggested that the First Information Report was
not proved properly and that there were some discrepancies in the initials of
P.W.2 – Chinnathambi. All these could have been put to P.W.10 in the cross
examination, but his evidence has not been challenged by any
cross-examination. Therefore, it cannot be disputed that P.Ws.1 and 2 reached
the police station to make a report.
15. In his further cross-examination, P.W.1 has given some fantastic
suggestions that it was Sekar who wanted to assault Narayanan, but
unfortunately, it is not the case of the accused persons in their examination
under Section 313, Cr.P.C. That apart, the story of Narayanan being present
on the spot appears to be completely a myth, not established in the
cross-examination in any manner. That only suggests the truthfulness of the
prosecution story.
16. The learned counsel also made a serious criticism that Thavamani Thevar
was not examined by the prosecution. True it is, that he could have been
examined by the prosecution. However, his nonexamination would be of no
consequence, particularly because the prosecution has safely and completely
relied upon the evidence of these two witnesses, who were not shaken in their
cross examination at all.
17. P.W.2 has supported the version of P.W.1. He has also tried to
tell the same story in so far as the three accused persons are concerned.
Even insofar as accused No.4 is concerned, he has given a completely
corroborating version of the assault. He has also tried to say that after the
assault on Sekar, Sekar tried to run away, when he was stopped by the other
three accused persons; but beyond this, no role is attributed by P.W.2 to the
presence of the first three accused. It is also very significant that during
the investigation there was no attempt made to collect the clothes of accused
Nos.1, 2 and 3. It cannot be imagined that if the accused persons prevented
sekar or stopped him from running, they would have come in contact with the
blood of deceased, as it is stated that Sekar was profusely bleeding because
of the aruval – billhook blows. Any such evidence regarding the blood-stained
clothes of the first three accused persons could have given some clue. But in
the absence of any such corroborating evidence and the sketchy role that has
been given to them by merely preventing Sekar from running away, it is
difficult to hold that the first three accused actually had the murder in
mind. We will come to the question of intention on the part of the accused
persons in the later part of the judgment. However, it cannot be said that
the evidence of these two witnesses, could be shaken in any manner, in their
crossexamination.
18. If the ocular testimony of these two witnesses is accepted, as
has been done by the learned Sessions Judge, there would really be no
necessity of any other evidence, to convict at least the fourth accused. In
addition, we have the evidence of P.W.3 Selvakumar, Village Administrative
Officer. He is also a witness on the discovery statement made. The fourth
accused had, in his statement, while filing Ex. P2, has taken the police
party to a thorny shrub, taken an aruval ( billhook) and handed it over to the
Inspector of Police. Eventually, this aruval (billhook) was sent for chemical
examination and the presence of human blood was then found to be belonging to
“AB” Group. The result of the chemical examination of the clothes of the
deceased only shows that the blood group of the deceased was “AB”. Therefore,
it is obvious that the aruval (billhook) contained blood stains for which no
explanation is coming forth from the fourth accused. The discovery evidence
was tried to be assailed by the learned counsel by suggesting that the
discovery was of farcial nature. Considering the evidence of P.W.3 and the
evidence of investigating officer, we do not think so. The further fact that
the discovered aruval – billhook had “AB” Group blood and the fact that both
the witnesses have described the assailant to be with an aruval (billhook)
would go to suggest that that was the aruval (billhook) which was used in the
crime. There is no other explanation coming forth from the accused in this
behalf.
19. Besides this, we have the evidence of P.W.4 – John alias
Thangadurai, who spoke about the previous day’s incident, with which, really
we are not concerned particularly in view of the ocular testimony of P.W.1 and
P.W.2. It is therefore obvious that it is proved beyond reasonable doubt that
the assault was made on Sekar by the fourth accused with an aruval (billhook),
and as a result of that assault, Sekar died an instantaneous death.
20. The learned counsel for the defence took us through the post-mortem
report and tried to point out that from the evidence of the doctor, it could
be established that the death was much earlier than the time, claimed by the
witness. We see from the post mortem report that the opinion of the doctor is
that the death could have occurred six hours prior to the port mortem
examination. The post mortem examination was held at 4 O’ clock in the
afternoon. The doctor suggested that the death could have occurred six hours
prior to post mortem. Hence, there was a possibility of death at 10 O’ clock
in the forenoon. However, the doctor has also indicated a four hours’ margin.
Therefore, the death could have occurred between 6 O’ Clock and 10 O’ Clock.
But the learned counsel also points out that there was undigested food in the
stomach of the deceased, and that therefore, the death must have occurred
three hours after food was consumed which could be by 9 O’ Clock or 10 O’
Clock in the night. If the undigested food stuff was found in the stomach,
then the death would have occurred much earlier to 6 ‘ O Clock. The learned
counsel submitted that it was for the prosecution to apprise as to when the
deceased had his last supper or food, as the case may be. All these are not
necessary. The fact remains that the deceased was seen alive by the two
witnesses at 7.45 a.m. and their testimony could not be demolished. Not only
this, but the suggestions also make it clear that it was the deceased who
himself tried to assault A4 – Masanam. If it is suggested by the defence that
Sekar was alive even at 7.45 a.m., that would knock out the case that Sekar
died somewhere prior to 6 O’ Clock. We are of the clear opinion that the
prosecution has been able to establish by the evidence of P.Ws.1 and 2 that
the death has occurred in between 6 O’ Clock to 10 O’ Clock, and more
particularly, by 8 O’ Clock in the morning. This brings us to the question of
the offences against the accused-1 to 3.
21. The learned counsel contended that there was nothing to suggest
that there was a meeting of minds on the part of the three accused, A1, A2 and
A3 on the one hand and A4 – Masanam on the other. He also pointed out that it
was not as if when A4 – Masanam was brandishing his aruval (billhook) so that
the other accused persons knew that A4 – Masanam was armed with the deadly
weapon like aruval (billhook). The learned counsel, therefore, contends that
in view of the fact that the sudden assault was made by A4 – Masanam, even if
that is taken to be established, there is nothing to suggest that A1 to A3
shared the same common intention. The learned counsel contends, and in our
opinion, rightly, that the evidence suggests that all the accused did not come
together. On the other hand, there is an evidence on record that the three
accused persons A1, A2 and A3 were in one group, whereas, A4 – Masanam
followed them. The learned counsel is undoubtedly right in saying that the
prosecution did not collect or present any evidence regarding the previous
meeting of minds of the accused persons and regarding the place where those
four persons were, before the incident of assault took place.
22. The learned public prosecutor, however, suggests that the
intention could develop even at the spot. He suggests that the act on the
part of the first three accused persons in stopping or preventing Sekar from
running away, by itself, speaks volumes about the intention on the part of the
accused persons. He suggests that if they had not been able to stop Sekar,
may be, Sekar could have escaped the death. Considering the injuries on
Sekar, that does not seem so.
23. When we go through the evidence of the doctor, it is seen that
Sekar had suffered as many as twelve injuries. The description of Injury No.1
is stated to be an irregularly shaped lacerated injury extending from left
cheek to right angle of mandible passing through muscles, nerves, vessels,
oesophagus, trochea, brain and in between upper and lower jaw 21 cms. depth
and 8cms. breadth. It is obvious that the injury was made with extreme
force. The second injury is also stated to be a cut injury extending from
right side of nose up to root to the right side of chin. The third injury is
stated to be an eleptical cut injury extending from front of right humorus to
lower border of scapula 24 cm X 5 cm X bone deep. The fourth injury is stated
to be a vertical cut passing between right middle and ring finger 4 cm x 3 cm.
X bone deep. The fifth injury is stated to be an incised wound of ½ cm. X ½
cm x skin deep over middle phalamges of right index finger. The sixth injury
is stated to be an eleptical wound over dorsal aspect of middle of kruckle of
all the fingers of left hand except thumb and are hanging. The seventh injury
is stated to be an eleptically cut wound over left shoulder extending from
left clavicle upto 7 cm. below 7cm x 3 cm. X skin deep. The eighth injury
is stated to be an eleptically cut wound of 2 cm. X ½ cm x skin deep just
below the right knee. The ninth injury is stated to be an eleptically incised
wound over dorsum of foot 5 cm x 3 cm x 1 cm. The tenth injury is stated to
be a vertically cut wound passing between 3rd and 4th toe up to medical
mallgous completely cut and hanging by skin over dorsal aspect. The eleventh
injury is stated to be an abrasion of 1 cm x ½ cm. X skin deep of eleptical
shape and the twelfth injury is stated to be an incised wound over parietal
region 4 cm. X 4 cm. X bone deep. The injuries other than injury Nos.1 and
2, upto injury No.11, appear to be relatively small but not less serious, more
particularly, injury No.7, which is a cut wound over the left shoulder,
extending from left clavicle upto 7 cm. below 7cm x 3 cm. X skin deep. So
also injury Nos.10 and 12 are of extremely serious nature, injury No.10 being
a vertically cut wound passing between 3rd and 4th toe upto medical mallgous
completely cut and hanging by skin over dorsal aspect and the twelfth injury
being an incised wound over parietal region 4 cm. X 4 cm. X bone deep.
Under such circumstances, it is difficult to imagine that after an assault,
Sekar had actually tried to run away. It is again not clear as to what
exactly was done by A1, A2 and A3 against which part of the body of Sekar.
Merely suggesting that they stopped him from running away is too general, in
our opinion. The witnesses are expected to give exactly the nature of the act
on the part of each accused. That, unfortunately, has not been done. The
benefit should go to the accused. We are of the clear opinion that the
prosecution has not been able to establish that accused Nos.1, 2 and 3 shared
the same common intention of murdering, with the fourth accused. Insofar as
the intention of the fourth accused is concerned, it is clear that it comes
within the third limb of Section 300 I.P.C., that those criminal acts were
sufficient to cause the death and we have no doubt that the fourth accused
intended to cause those injuries. Therefore, the finding of the Sessions
Judge was absolutely right to convict the fourth accused for the offence under
Section 302, I.P.C. However, we do not agree with the Sessions Judge in
convicting the first three accused also. In our opinion, the first three
accused would be entitled for acquittal. Therefore, insofar as the first
three accused are concerned, the appeal is hereby allowed. The sentence
imposed on the first three accused is set aside and they are directed to be
set free, unless they are wanted in any other offence. The appeal of the
fourth accused, however, is dismissed and the verdict, version and the
resultant sentence are confirmed.
With this, we dispose of the criminal appeal as stated above.
Index: Yes
Internet: Yes
To: The Principal Sessions Judge, Tuticorin.
Ksv