IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24/12/2003
CORAM
THE HON'BLE MR. JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR. JUSTICE M. THANIKACHALAM
C.A.NO.5 OF 1996
1. Ravikumar
2. Meganathan
3. Subramani
4. Ranganathan ..Appellants.
-Vs-
The State by the Inspector of Police,
Marakanam Police Station
(Cr.No.749/93) ..Respondent.
Appeal filed under Section 374 Cr.P.C. against the judgment dated 18
.12.1995 in S.C.No.83/95 on the file of the Court of Principal Sessions Judge,
Villupuram Ramasamy Padayachiar District.
!For Appellants : Mr. K.N. Basha
for Mrs.Vedavalli Kumar
^For Respondent : Mr. S. Sivakumar
for Public Prosecutor
:J U D G M E N T
(Judgment of the Court was delivered by M. THANIKACHALAM,J.)
The accused 1, 2, 3 & 5, who have been convicted by the Principal
Sessions Judge, Villupuram, in S.C.No.83/95, are the appellants.
2. The complainant/respondent, had filed a final report against
the appellants and three others, seeking appropriate punishment under Sections
147, 148, 323, 307, 302 r/w 109, 302 r/w 149 and 307 r/w 149, alleging, that
all the accused have formed themselves into an unlawful assembly, on
22.12.1993 at about 8.00 a.m. at Kollumedu Village, with the common intention
of committing crime, and in furtherance of the said common intention,
committing rioting, they have assaulted some of the witnesses, caused
injuries, in addition to causing the death of one Vadivelu and therefore, all
the accused should be dealt with accordingly, under appropriate penal
provisions.
3. The learned Principal Sessions Judge, Villupuram, after
perusing the materials placed before him, satisfied that a prima facie case
has been made out, against all the accused, to proceed further and in this
view, framing necessary charges, as disclosed by the materials, questioned the
accused, for which they refused to plead guilty, denying the entire
prosecution case, contending that the complainant parties are the aggressors.
4. The complainant, in order to prove the charges framed against
the accused, examined 17 witnesses, produced 39 documents, and 14 material
objects also.
5. The learned Principal Sessions Judge, upon considering the
evidence produced for assessment, scanning the same, based upon legal
position, came to the conclusion that no offence is made out against A4, A6
and A7 and in this view, he acquitted them, from all the charges. But, the
evidence revealed the offences committed by the appellants viz., A1, A2, under
Section 324 I.P.C., A3 and A5 under Section 302 I.P.C. Though the prosecution
contended, that all the accused, in prosecution of the common object, being
the members of an unlawful assembly, committed the crime, the learned trial
Judge has not accepted the same. Considering their individual overt act, as
proved, the learned trial Judge convicted the first accused under Section 324
I.P.C. and second accused under Section 324 I.P.C. (two counts), directing
them to pay a fine of Rs.750/-, for each count and in default to undergo six
months R.I. The learned trial Judge, finding guilty, A3 and A5 under Section
302 I.P.C., directed them to suffer life imprisonment. The above conviction
and sentence are impugned in this appeal.
6. Prosecution case in brief:-
(a) Thiru Vadivel, (deceased) is the father of Elango (P.W.1).,
Ravi (P.W.3) and Anbazhagan (P.W.5). Selvam (P.W.2) is the cousin brother of
P.W.1. Tmt. Manjula (P.W.4) is the wife of P.W.5 and the daughter-in-law of
the deceased. P.W.6, Krishna Pillai is the brother of the deceased. The
accused 2 & 7 are the sons of the 6th accused and others are their pangalis.
All are residing in a village called Kollumedu.
(b) On 21.12.1993 one Siva, sister’s son of the first accused, was
grazing the buffalos of the first accused, in the lands belonging to P.W.1’s
family. On seeing this, P.W.5 assaulted him, which was reported to the first
accused. The first accused questioning the conduct of P.W.5 assaulted him.
On hearing this news, Vadivelu and Krishnapillai intervened and they were also
assaulted, thereby, straining the relationship.
(c) On 22.12.1993 at about 8.00 a.m., P.Ws.1 and 2 were brushing
their teeth, near the common well of their village, Kollumedu. At that time,
they have noticed the passing of Ravikumar (A1). On seeing him, P.W.1
questioned the first accused, is it fair on his part to assault P.W.5, having
grazed the buffalos in their land. The first accused questioning this conduct
of P.W.1, threatened even to assault him. Thereafter, there was a wordy
altercation between A1 and P.W.1 in the presence of P.W.2. The first accused
became furious, went inside the house of A6, which is very near to the common
well and brought M.O.1 stick, beat P.W.1 on his back. Aggrieved by this
conduct of the first accused, P.W.1 and his brother P.W.2, chased him. The
first accused took asylum, in the house of the 6th accused.
(d) P.Ws.1 & 2 unable to retaliate and assault the first accused
effectively, became unrestrained and were shouting in front of the house of
the 6th accused. The third accused Subramani hearing the threatening call of
P.Ws.1 & 2, yelled, that P.Ws.1 & 2 should be assaulted, even if a murder
takes place, since they stepped into their house and shouted. Encouraged by
the support, when P.W.1 was standing in front of the house of A6, the second
accused came there, with M.O.2, assaulted P.W.1 over his head. The 4th
accused assaulted P.W.1, by a reaper M.O.3. At the same time, the first
accused assaulted him, with an iron rod over the head. The second accused
assaulted P.W.2 and caused injuries. On seeing this incident, P.W.3 also went
there to their rescue. The second accused attacked Ravi with M.O.2, causing
stab injuries. The father of P.Ws.1, 3 & 5 hearing this news, rushed to the
scene of occurrence, in their support. On seeing Vadivel, accused 3 & 5
assaulted him over his head with yoke M.O.5 and M.O.6, while the 6th accused
caught hold of him, causing bleeding injuries of serious nature. P.W.1 chased
the accused, taking a stick available from the scene of occurrence. P.W.6 on
hearing the incident, that his brother was assaulted, came there, seen the
injured brother, then chased the accused and in that, the first accused, also
sustained injuries. This incident was witnessed by Muthukrishnan, Venupillai
and Nagappan.
(e) P.W.1 and others, after the accused left the place, took the
injured Vadivel Pillai, to Dindivanam Hospital at about 11.30 a.m. The doctor
P.W.8 who attended on him, declared that he was dead, at about 12.10 a.m. on
22.12.1993
(f) Dr. Prabha (P.W.8) had issued Ex.P.10 accident register,
noting the injuries sustained by Vadivel. He has also examined P.W.1 and
noted three injuries, for which he issued, Ex.P.11 certificate. On the same
day at about 11.40 p.m., P.W.8 examined P.W.2 and issued Ex.P.12 , for the
injuries sustained by him. On the same day at about 11.45 a.m., when the
doctor examined P.W.3, he had noticed some injuries, for which he issued
Ex.P.13. P.W.1 after taking treatment, prepared Ex.P.1 complaint, went to the
Marakanam Police Station, on the same day at about 8.30 p.m., which was
received by P.W.16. On the basis of Ex.P.1, P.W.16 registered a case, in
Cr.No.749/93 under Sections 147, 148, 341, 324, 326, 302 I.P.C., and he
submitted the printed FIR Ex. P.2, through P.W.11, which was received by the
Judicial Magistrate Court, Dindivanam, at about 8.00 a.m. on 23.12.1993. He
has also informed the matter to the Inspector of Police, for investigation.
(g) Thiru Muniappan, P.W.17 on information, on 23.12.1993, went to
Dindivanam Hospital, where he received the copy of the FIR, at about 8 .15
a.m. Commencing investigation, P.W.17 conducted inquest over the body of
Vadivel, at the Hospital between 8.30 a.m. and 10.30 a.m., in the presence of
Panchayatdars, and the result is Ex.P.36. He had also examined P.Ws.1-3 and
recorded their statements. Through P.W.12, giving requisition Ex.P.16, he
made an arrangement for autopsy, to find out the cause of death of Vadivelu,
scientifically. On the same, day by examining P.W.3, in the presence of P.W.7
and Ramalingam, P.W.16 recovered blood stained shirt M.O.3 under Ex.P.3. In
continuation of the investigation, he recovered from P.W.2, M.O.8 under Ex.P.5
and thereafter at about 3.00 p.m, he went to the scene of crime.
(h) P.W.17 inspecting the scene of crime, prepared sketch Ex.P.3,
as well as the observation mahazar Ex.P.6. By examining one Venu Pillai, he
had also recovered a portion of M.O.6 under Ex.P.7. Further M.Os.5 & 6 were
recovered by the investigating officer, on examination of P.W.6, under Ex.P.8.
Then examining P.W.6, the investigating officer recovered M.O.10 under Ex.P.9.
(i) On 23.12.1993, when P.W.15 was in the Police Station, A6’s son
preferred Ex.P.34 complaint at about 11.30 a.m. which resulted in the
registration of a case under Ex.P.35.
(j) On his return to the police station, P.W.17 received Ex.P.35
from P.W.15, at about 8.30 p.m. on 23.12.1993. Taking this case also, for
investigation, inspected the scene of crime, examined the witnesses and
recorded their statements. On 28.12.1993, he arrested A1, A2, A4 & A7 in the
presence of the witnesses. Accused No.1, 2 & 4 gave the confession
statements, Exs.P.22, 24, 26 respectively. In pursuance of the confession
statements, M.Os. 1 and 4 were recovered, at the instance of the first
accused, under Ex.P.23. On the basis of the confession statement given by the
second accused, M.O.2, was recovered under Ex.P.25. M.O.3 was recovered by
the Investigating Officer, on the basis of the confession given by A4, under
Ex.P.27. The investigating officer, having noticed the injuries over the
person of the accused, sent them for treatment and examination.
(k) At the request of the investigating officer, P.W.9 Dr. S.
Parasuraman, on identification of the body of Vadivelu, conducted autopsy at
about 11.30 a.m. which disclosed the following external and internal
injuries:
External injuries:
1. Lacerated wound 3 cm x 1/2 cm bone deep left frontal region.
2. Lacerated wound 2 cm x 1/4 cm bone deep left parietal region scalp
hair surrounding the lacerations are wet with blood.
3. Infected laceration 1 cm x 1/4 cm x 1/4 cm front of leftleg.
4. Contusion 4 cm x 3 cm right side of forehead.
Internal Injuries:
1. Depressed fracture on the left side of skull about 10 x 5 cms – the
depressed bony fragments tearing the dura beneath and pressing on the brain
tissue and causing a laceration 3 cm x 2 cm of it.
2. Fracture about 20 cms long extending to the right side from the
depressed fragment.
The doctor, analysing the effect of the injuries, came to the conclusion, that
the deceased Vadivelu died due to shock and hemorrhage, in addition to the
injury to brain, for which he issued Ex.P.17 postmortem certificate.
(l) P.W.9 has also examined the 4th accused on 29.12.1993, at
about 12.40 p.m. and issued Ex.P.18 certificate, for the injuries sustained
by him on 22.12.1993 at about 7.00 a.m. On the same day at about 12 .45 p.m.,
he examined the first accused, and issued Ex.P.19, Accident Register for the
injuries sustained by him on 22.12.1993 at 7.00 a.m. On the same day, at
about 4.30 p.m., P.W.9 examined the 5th accused and Ex.P.20 is the Accident
Register Copy issued by him for the injuries sustained by him on 22.12.1993.
On the same day, at about 4.3 5 p.m., the doctor examined A6, and issued
Ex.P.21, for the injuries sustained by him on 22.12.1993 at 7.00 a.m.
(m) The examination of the witnesses, statements recorded and the
collected material objects, revealed the fact that the accused party were the
aggressors, whereas the complainant party was the victim. In this view,
dropping the case given by the accused party, satisfying that a case is made
out against the accused, P.W.17 has filed a final report, which ended in
conviction, after trial, against the appellants alone, which is sought to be
assailed, in this appeal.
7) The learned trial Judge, considering the oral as well as the
documentary evidence, reached the conclusion that the delay in preferring the
complaint is not an inordinate one, whereas it had occurred in the normal
course, also well explained; that the accused parties, as the aggressors have
caused injuries to the prosecution witnesses, as well as causing death of one
person, that though there were more than five accused, they have not formed
themselves into an unlawful assembly, or not the members of unlawful assembly,
sharing the common intention of each and therefore, the charges against some
of the accused, either under Section 149 or 147 or 148 I.P.C., as the case may
be are not made out, that though some of the accused have been charged under
Section 307 I.P.C., there was no intention for the accused to aim the life of
the injured witnesses, and if at all, the assault, causing injuries, would
make out a case only under Section 324 I.P.C., that the evidence available on
record, are sufficient only to sustain the conviction, against, the appellants
1 & 2 under Section 324 I.P.C., the appellants 3 & 4 under 302 I.P.C. In this
view, as aforementioned, conviction and sentence were slapped upon the accused
appellants, giving total relief to other accused.
8. Heard the learned Counsel, Mr. K.N. Basha, appearing for the
appellants and the learned counsel appearing on behalf of the Additional
Public Prosecutor, who took the labour of taking us, through the oral as well
as documentary evidence in detail, thereby inspiring us to pay our deep
consideration.
9. The learned counsel for the appellants, Mr. K.N. Basha
challenged the lower Court’s verdict, on the following grounds namely, that:-
(i) the trial Court has failed to note the inordinate delay, which has
not been explained, in giving complaint as well as the first information
report reaching the magistrate Court, which should ordinarily create
reasonable doubt, and its benefit ought to have been given to the accused,
(ii) P.Ws.4 & 5 could not have witnessed the occurrence, but ignoring
the same, by accepting, error was committed by the trial Court,
(iii) the trial Court has failed to note that the independent
witnesses have not been examined, though available, for which an adverse
inference ought to have been drawn,
(iv) the evidence available on record, even as per the case of the
prosecution, would suggest that the complainant/party alone was the aggressor,
which was not properly appreciated by the learned trial Judge,
(v) that some of the accused have been injured in the same
incident, but the prosecution has failed to explain the same, for which, an
adverse inference ought to have been drawn by the trial Judge, as if the
genesis of the case is suppressed thereby, but unfortunately, it is ignored by
the trial Court and
(vi) the accused, if at all exercised their right of self defence
i.e. the right of private defence, which could not be described as an
offence, being not punitive in nature.
On the above lines, elaborating the same with materials, Mr. K.N. Basha
urged us, that the conviction and sentence slapped upon the accused, are
liable to be set aside, at least giving the benefits of reasonable doubt.
10. Per contra, the Government Advocate would contend, that the
eyewitnesses examined on behalf of the prosecution, are all injured witnesses,
in the incident, that there is no reason to discard their oral testimony and
therefore, the trial Court has not committed any error in accepting the oral
testimony of the prosecution witnesses, while convicting the accused. It is
the further contention of the learned Government Advocate, that the injuries
sustained by some of the accused are trivial in nature and the non explanation
of the same, would not create doubt upon the case of the prosecution. In the
same way, he would contend further, that the delay in preferring the complaint
was also well explained, which was correctly accepted by the trial Court, not
warranting any interference. On the above lines, elaborating the same,
opposing the other defence also, the Government Advocate would submit that the
trial Court had convicted the accused/appellants on the basis of the
unimpeachable evidence, which does not require any interference, whereas it
requires confirmation.
11. The main thrust of the learned counsel for the appellants is,
that there is an inordinate and unexplained delay in giving the complaint, as
well as the F.I.R reaching the Magistrate Court, which should compel the
court, to entertain spontaneous, reasonable doubt. On that basis, a strenuous
attempt was made to create doubt about the genesis of the case itself, thereby
making crack, allowing the accused to escape under the cloud of benefits of
doubts. Though the argument was appealable prima facie, on deep consideration
of the materials available on record, we are unable to affirm the said view,
rather we are constrained to take a contra view, condoning the delay, under
the facts and circumstances of the case. We are fully satisfied about the
explanation offered by the prosecution witnesses, for the delay in preferring
the complaint, as well as some delay in the F.I.R. and complaint, reaching
the concerned court.
12. In Murugan vs. State by Inspector of Police, Ottapidaram
(1993 L.W. (Crl) 90, a Division bench of this Court has held, that if the
prosecution failed to explain the inordinate delay, the delay is certainly
fatal in the circumstances of the case. Considering the facts and
circumstances of the case involved in the said decision, the Bench observed as
follows:
“From the various answers elicited in the evidence of witnesses and also the
materials it is seen that the earliest version put forward in this case has
been suppressed and further the delay of nearly ten hours in lodging the first
information report is inordinate and unexplained, and this delay is certainly
fatal in the circumstances of the case.”
This dictum could be well applicable, if the delay is not explained or if it
is shown, that the prosecution had utilised the delay, for deliberation and
wanton inclusion of the accused or the suppression of any previous report.
Here, this kind of circumstances does not exist at all. In fact, it is the
specific case of the defence that they are the victims and the prosecution
parties are the aggressors and the injuries sustained by some of the accused,
have not been explained. This would suggest, that the incident and the
presence of the accused and the victims are admitted, at the same time of the
occurrence. Therefore, the question of impleading the accused wantonly, or
introducing some imaginary story will not arise for consideration.
13. The trial Court sifting the evidence, in its proper
perspective, eliminated certain accused, against whom no case is made out,
showing the duty is well performed, accepting reliable portion of the
prosecution witnesses, and rejecting the unreliable portion, in the process of
removing the chaff from the grain. The trial Court has come to the
conclusion, that the truth and falsity are separable and therefore, separating
the same, rejecting the falsity of the prosecution case, accepted the
genuineness portion alone. If it is a case of the truth and falsity are
inseparable, the evidence could be totally discarded and this situation does
not arise. Therefore, as such, in our opinion, the above dictum may not have
any application, since we are satisfied that the delay is explained. In this
context, we have to see what is the delay caused, how it occurred, whether the
explanation offered by the prosecution could be accepted.
14. The incident had taken place at about 8.00 a.m. on 22.12.1993
at Kollumedu Village, which is 4 km. away from the police station. Ex. P.1,
complaint was given on 22.12.1993 at about 8.30 p.m. as seen from this
document, admittedly. It is an admitted position, the complaint and the
F.I.R. reached the Judicial Magistrate Court, on 23.12.1993 at about 8.00
a.m. Therefore, it is crystal clear, that there is a delay, not only in
preferring the complaint, but also in the F.I.R. reaching to the Court, as
rightly submitted by the learned counsel for the appellants. If it is shown
that the delay is utilized, for the sneaking of a twisted case, then only,
some doubt could arise, spontaneously, not otherwise.
15. In the incident narrated in the final report, P.Ws.1, 2, and 3
are injured persons and one Vadivelu sustained serious bleeding head injuries,
not collapsed at the spot. It is also more or less an admitted fact, though
we find some difference regarding the time of the incident, that A1, A4, A5 &
A6 were also injured, in addition to the wife of A6 by name Nagammal and
Padma, the mother of A4. Thus, the situation might have been very tense
immediately to the incident. In the ordinary circumstances, could be said
natural also, when the sons had seen their father was struggling for life, due
to the assault, which caused bleeding injuries, the normal course of any son,
would be to take the father immediately to the hospital and save his life.
This natural impulsion was adopted by P.W.1, being the son and he had no time
even to think little, that for the offences, immediately a complaint should be
preferred, failing which it will have some legal consequences, as now raised.
Therefore, the inaction on the part of P.W.1 or his relatives, in not
preferring the complaint immediately to the police station, though it is 4 km
away from the scene of crime, is not strange or wanton, and on this ground, we
are unable to say, that there was deliberation or concoction, while preferring
the complaint, at later point of time.
16. After the incident, as spoken by P.W.1, Vadivelu was admitted
in a hospital at Dindivanam, which is 35 to 40 km away from Marakkanam, where
he was declared dead at about 12.10 p.m. Only thereafter, P. w.1 and his
relatives would have thought of preferring the complaint to the police, since
P.W.1’s father was the victim, due to the aggressive act of the accused.
P.W.1 had stated, that he was informed by the doctor, that the information was
given to the police and the police would come and enquire the matter. In any
medico legal case, it is the duty of the doctor to inform the same to the
nearest police station and accordingly, it appears, the doctor also informed
the police, informing the same to P.W.1 also and therefore, he has not
initiated any immediate action, to prefer the complaint and we find nothing
strange. As informed by the doctor, police have not come to the hospital, and
then only P.W.1 thought of preferring complaint, by himself. P.W.1 would
state, at 4.00 or 5.00 p.m., when his brother Balu @ Balan came, he prepared
Ex.P.1, on his instruction and the same was handed over to the police, on the
same day at about 8.30 p.m., as seen from the endorsement in Ex.P.1, though
P.W.1 would state that he preferred the complaint at about 6.30 or 7.00 p.m.
17. Thiru Venugopal (P.W.14), the then Sub Inspector of Police,
Marakkanam Police Station, would state, that he had received the information
from Marakkanam Police Station that Vadivelu died in the hospital, due to the
injury sustained by him and three other injured persons are in the hospital,
taking treatment. He had further stated that he went to the hospital, but to
his dismay, the injured were not there. After returning to the police
station, he came to know, that the case was registered on the same day at
about 8.30 p.m. The information given to P.W.1, by the doctor that the matter
was informed to the police station, is corroborated by the oral evidence of
P.W.14, not challenged acceptably. Therefore, the delay, which caused at the
initial stage viz., after the death of Vadivelu up to 8.30 p.m. is well
explained, by the inspiring oral evidence of P.W.1 and P.W.14, supported by
the attending circumstances.
18. Thiru Uthirapathy (P.W.16), the then Sub Inspector of Police,
Law and Order, Marakannam Police Station, has stated that at about 8.30 p.m.,
P.W.1 came to the police station, presented Ex.P.1 complaint, on which basis,
he registered a case in Cr.No.749/93 under Section 14 7, 148, 326, 302 I.P.C.
for which, the printed F.I.R. Ex.P.2 was prepared, sent to the Court
concerned, through P.W.11. As said supra, Ex.P.2 reaching the Judicial
Magistrate only on the next day at about 8 .00 a.m. Therefore, as rightly
submitted by the learned counsel for the appellants, there was a delay in
sending the printed F.I.R. to the court concerned also.
19. The distance between Marakanam and Dindivanam is 35 to 40 km
or so. P.W.1, after treatment was waiting under the hope, the police would
come and enquire, as informed by the doctor, which had not happened.
Therefore, he travelled all the way from Dindivanam to Marakkanam, and
preferred a complaint. Though there are transport facilities, we could not
expect, that transport would have been available forthwith, without delay and
it all depends upon the time schedule of the buses. In this view, as per the
availability of the bus, P.W.1 would have reached the police station, at about
8.30 p.m. or so, though he has stated that he preferred the complaint at
about 6.30 or 7.00 p.m. and in this view, the delay in preferring the
complaint, is well explained. P.W.11 would state, that he received the
printed F.I.R. in this case, on 22.12.1993 at about 21.30 hours and handed
over the same to the Judicial Magistrate No.II, Dindivanam on 23.12.1993, at
about 8.00 a.m. The suggestion thrown to him only that the printed F.I.R.
was given to him in the morning of 22.12.1993, is unacceptable to us and we
find no reason to discard the oral testimony of P.W.11 and P.W.1 6, in this
regard. Because of the night time, the transport facility would be less and
therefore, in the ordinary course, consuming the time for travelling and
attending some other work also, probably P.W.11 would have reached the court,
concerned only on 23.12.1993 at about 8.00 a.m. and handed over the F.I.R.
Thus, the delay in reaching the printed F.I.R., to the Court on 23.12.1993, is
also well explained to our satisfaction and we do not find any laches on the
part of the police and P.W.11, so as to think, that they consumed the time, to
implicate the accused wantonly, or to suppress the real facts, in consultation
with somebody. Ex.P.1 does contain the details regarding the incident, said
to have taken place, who are the victims, what are the causes for the
incident, etc. mentioning the names of the eyewitnesses also. Only, in
accordance with the materials available in Ex.P1, all the eyewitnesses have
spoken, though they are interested, being injured and the victims of the
incident.
20. In Harijana Thirupala v. Public Prosecutor, High Court of
A.P. (2002 Crl. L.J. 3751), the Apex Court has taken a view, that even a
delay of four hours is fatal to the prosecution and the learned counsel sought
the aid, from this decision also. As seen from this decision, the distance
between the place of occurrence and the police station could be covered by <
or 1 hour depending upon the conveyance and including by walk, but the report
was given at about 10.30 p.m., though the incident had taken place at about
6.00 p.m. or 6.30 p.m. The evidence in that case, further disclosed that
some of the eyewitnesses were not present, at the time of the inquest.
Considering the facts and circumstances of the case and taking the overall
view based on the totality of the evidence and cumulative effect of the same,
that delay was considered so fatal, but it is not the case before us.
Therefore, the submission of the learned counsel for the appellants, that the
delay in F.I.R. assumes much importance, coupled with the fact of non
explanation of the injuries on the accused, is not acceptable to us. Thus,
ignoring the delay, we have to assess the oral evidence, in order to fix the
culpability.
21. In the incident, Vadivelu sustained serious injuries and died,
indisputable. P.W.8, who had examined Vadivelu at the first instance, had
noticed 4 injuries, as indicated in Ex.P.10. After the death of Vadivelu, at
the request of the investigating officer (P.W.17), P.W.9 conducted autopsy and
he had noticed four external injuries, out of which, three injuries were over
the head. He had opined, that Vadivelu died due to shock and hemorrhage,
which caused by the brain injury. The internal injuries exposed, during the
dissection of Vadivelu’s body, also revealed the fact that the internal
injuries are corresponding to the external injuries. Thus, we could safely
conclude, Vadivelu died only due to the head injuries, sustained by him, in
the incident, which took place on 22.12.1993 at about 8.00 a.m. The reason
assigned by the doctor, for the cause of death of Vadivelu, was not shadowed
even by suggestion. Therefore, fixing that Vadivelu died due to head
injuries, we have to see, who caused the said injuries. It is the case of the
prosecution that A3 and A5 were responsible for the injuries sustained by
Vadivelu over his head, which was accepted by the trial Court. If there are
materials to accept the above fact, it is hard for A3 & A5 to escape. Before
going into this aspect, who caused the head injuries, next we have to see, how
the other prosecution witnesses were injured, and some of the accused have
sustained injuries, whether those injuries were explained, if not what is the
effect.
22. P.W.1, during the cross examination would admit, that when he
went to the police station, to prefer the complaint, the injured accused were
also present there. Contrary to the evidence given by P.W.1, the
Investigating Officer would state, that he had arrested the accused at later
point of time. This inconsistency, could be ignored, if unassailable evidence
are available, regarding the aggressive act of the accused. It appears the
truth is otherwise. As seen from Ex.P.34, the complaint given by Kannan S/o.
Arjunan-6th accused, all the accused escaped from the scene of crime, and his
effort to trace them, ended in vain. As spoken by P.W.1, if the accused were
in the police station, Ex.P.34 would not have come into existence, containing
those averments. In this view also, if there are materials to show that the
prosecution witnesses are the aggressors, then only failure to send the
accused forthwith for medical examination and the non explanation of the
injuries, should take predominant role. P.W.9 had examined A1, A4, A5 & A6 on
29.12.1993, after 12.40 p.m. and issued Exs.P.19, P.1 8, P.20 and P.21
respectively. P.W.8 had examined Nagammal W/o. A6 and Padma, the mother of
A4 on 5.1.1994 and issued Exs.P.14 & P.15. As seen from the above said wound
certificates, the injuries sustained by A1, A4, A5 A6 were simple in nature.
Most of the injuries were abrasions, except 1 or 2 lacerations. Because of
the delayed examination, the doctor has noticed four heeling injuries, but at
the same time, he has not noticed any grievous hurt.
23. As spoken by P.Ws.8 and 9, it seems A1, A4, A5, A6, Nagammal
and Padma have reported to the doctor that they have sustained the injuries on
22.12.1993 at about 7.00 a.m. at Kollumedu Village. The incident, for which
the accused are prosecuted, took place on 22.12.1993 at about 8.00 a.m. in
the same village. Thus, we find there is a difference of one hour.
Therefore, ordinarily it could not be said, that the accused and their parties
have sustained injuries, at the same time, as sustained by the complainant
parties. If the accused and the victims have sustained injuries, at different
point of time, probably in separate incidents, generally, no duty is cast upon
the prosecution, to explain the injuries, sustained by the accused. In this
view, the non explanation of the injuries sustained by the accused, admittedly
to certain extent, would not cause any abrasion, in our view, to make a dent
upon the prosecution case, or to erupt a dark cloud, creating reasonable
doubt. Ignoring, for the purpose of the case, the time factor, and assuming
that the accused also could have sustained injuries, at the same time, next we
have to see, whether the non explanation takes predominant role, thereby
doubting about the genesis of the prosecution case.
24. In Lakshmi Singh and others v. State of Bihar AIR 1976 SC
2263, the Apex Court has ruled:
“In a murder case, the non explanation of the injuries sustained by the
accused at about the time of the occurrence or in the course of altercation is
a very important circumstance from which the Court can draw the following
inferences:
(1) that the prosecution has suppressed the genesis and the origin
of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most material point and
therefore their evidence is unreliable.
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so as to throw
doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the
person of the accused assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution one.”
It is also the observation of the Apex Court, based upon the previous rulings,
that the prosecution is not duty bound to explain the injuries sustained by
the accused, which are minor and superficial or where the evidence is so clear
and cogent, so independent and disinterested, so probable, consistent and
credit worthy that it far outweighs the effect of the omission on the part of
the prosecution to explain the injuries. Thus it is seen, it is not mandatory
in all the cases, where the accused sustained injuries, the prosecution should
come forward, with an explanation and it all depends upon the facts and
circumstances of the case.
25. In Raghunath v. State of Haryana [2003 (1) Crimes 260 (SC)],
the Apex Court has held, that the non explanation of injuries on accused
person, which are of serious nature would lead to the conclusion, that the
prosecution has failed to establish its case, suppressing the real facts. In
the above said ruling, it is made out, that the complainant party was also
armed with weapons and had sufficient time to inflict the injuries. In this
view, if it is made out, that the complainant party was armed with deadly
weapons, and caused injuries of serious nature to the accused, that too, to
vital parts, then only ordinarily, the non explanation of injuries, on persons
of the accused, would be fatal to the prosecution, leading to the inference,
that the genesis of the case is suppressed.
26. In State of Madhya Pradesh v. Mishrilal (dead) and others
(2003 SCC Crl 1829), the Apex Court analysing the previous case laws has
ruled, that “the omission on the part of the prosecution, to explain the
injuries on the person of the accused, assumes much greater importance, where
the evidence consists of interested or inimical witnesses or where the defence
gives a version which competes in probability with that of the prosecution.”
Here also all the witnesses are interested witnesses and for the reasons we
are going to assign, it could not be said, that the defence version competes
in probability with that of the prosecution and therefore, as such, only on
the basis that interested witnesses have been examined, and the injuries on
the persons of the accused, have not been explained, an adverse inference
could not be drawn, as if the prosecution party is the aggressor or the
accused party is the victim.
27. In Sucha Singh v. State of Punjab (2003 SCC (Cri) 1697, the
Apex Court has ruled:
“Non explanation of injuries by the prosecution will not affect the
prosecution case where injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that it outweighs the
effect of the omission on the part of the prosecution to explain the
injuries.”
It is the further dictum of the Apex Court, if the witnesses examined on
behalf of the prosecution are believed, by the court, in proof of guilt of the
accused beyond reasonable doubt, question of obligation of prosecution, to
explain the injuries sustained by the accused, will not arise. Having the
above principles in mind, we have to see the nature of injuries and the
incidents.
28. As per the doctor’s opinion, which is not challenged, all the
injuries sustained by the accused are simple in nature, including the injuries
said to have been sustained by one of the relatives of the accused, except
Padma, who have not been examined. There is no clinching evidence, that the
prosecution witnesses were armed with deadly weapons and attacked the accused,
igniting the dispute. Further, though the witnesses are some what interested,
considering their presence and the acceptability of their evidence, we are of
the considered opinion, that the non explanation of the injuries sustained by
the accused, would not make any abrasion over the prosecution.
29. It is not the case of total non explanation of the injuries,
whereas we find some explanation as and when asked for. P.W.1 would admit,
that Krishnapillai chased the accused, after the accused assaulted his brother
viz., Vadivelu. But he failed to say whether the accused sustained injuries
or not. As seen from the oral evidence of P.W.3, he would assert, that no one
from the side of the accused sustained injuries. But, P.W.4 alone had given
some explanation, that when Krishnapillai chased the accused, the first
accused sustained injuries. In view of the ordinary nature of injuries
sustained by the accused, the non explanation of the injuries will not loom
large, in this case and therefore, we are inclined to reject this defence.
30. The learned counsel for the appellants would submit, that
P.Ws.4 and 5 could not be the eye witnesses and therefore, accepting their
evidence or seeking buttress from their oral testimony, to prove the
prosecution case, is unsafe. From the cross examination of P.Ws.4 & 5, it is
seen, that it is not the case of the d efence, that P.W.4 was not present at
the time of the incident. The very fact, that she had exhibited ignorance
regarding the injuries sustained by some of the accused and her statement,
recorded by the police, not submitted to the Court forthwith, will not remove
her, from the definition of the eyewitness. As far as P.W.5 is concerned,
though an attempt is made to exclude him from the purview of the eyewi tness,
we could say that it is admitted even by the accused, that this witness was
present at the time of the incident. As seen from the cross examination, it
is suggested to him that he along with other prosecution witnesses, attacked
the accused and in that process alone, some of the witnesses have sustained
injuries. It is the specific case of the defence, as seen from the cross
examination, that these witnesses, caused injuries to 4th accused, which is
denied. Therefore, it could be safely said, that the presence of P.W.5 is
well admitted. Under the above said circumstances, if P.Ws.4 & 5 have
supported the case of the prosecution, without much contradiction and
omissions, there is nothing wrong in relying upon their oral testimony, also.
31. In the complaint, Jayarama Pillai, Venu Pillai and Radha
Pillai names are given, as if they are the eyewitnesses. But admittedly,
those witnesses have not been examined before this Court, though two of them
have been examined and statements were recorded by the police. The
prosecution thought it fit, though the above said persons have witnessed the
incident, they may not support the case of the prosecution, and therefore, the
non examination of the above said witnesses, though they are independent, will
not create any doubt in the prosecution case. The duty of the Court is to
find out the trustworthiness of the witnesses, who have been examined and for
the non examination of the independent witnesses straight away, no adverse
inference could be drawn. If the witnesses examined are not eye witnesses,
then the matter would be different. Hence, in this view also, we are unable
to entertain any doubt, for the non examination of any independent witnesses.
32. The another main contention of the learned counsel for the
appellants is that the prosecution parties are the aggressors and if at all
the accused would have exercised their right of private defence and therefore,
the fact Vadivelu sustained injuries, died later on, could not be a ground to
convict the accused A3 and A5 under Section 302 I.P.C. since the same cannot
be an offence under Section 96 of I.P.C. The submission of the learned senior
counsel though appears to be a rosy picture, considering the materials
available on record, it appears to us only as a mirage should vanish
forthwith. In this context, we have to see the cause for the incident viz.,
the motive or the enmity, as the case may be.
33. P.W.5 has stated that on 21.12.1993, at about 3.00 p.m. one
Shiva, elder sister’s son of the first accused, was grazing two buffalos, in
his land and on seeing this, he beat him. Thereafter, according to P.W.5, the
first accused aggrieved by his act, slapped him on the cheek. He further
says, when the same was questioned by his father and Krishnapillai, they were
also assaulted. The above evidence though denied generally, no explanation is
offered by the accused, even at the time of the examination under Section 313
Cr.P.C. P.W.6 also has stated about the incident taken place on 21.12.1993,
between the first accused and P.W.5 and the intervention of his brother. He
has further stated, when he went and enquired about the highhanded activity of
the first accused, the first accused assaulted him. The above evidence given
by P.W.6 is incontrovertible. From the oral evidence of P.Ws.5 and 6, we are
fully satisfied that the accused persons alone were the cause at the initial
stage for the subsequent incident on 22.12.1993, which is well explained by
P.Ws.1 & 2.
34. P.W.1 has stated, that on 22.12.1993 at about 8.00 a.m., when
he was brushing his teeth along with P.W.2, near the common well, they have
noticed the first accused coming there and on seeing him, they questioned his
highhanded activity, in assaulting his father and paternal junior uncle, who
have questioned the activity of the first accused on the previous day. He
further says that the first accused challenging went inside the house of 6th
accused where from, he got M.O.1 and assaulted him as well as P.W.2. Because
of this conduct of the first accused, P.Ws.1 & 2 have naturally, chased the
first accused, who took asylum in the house of the 6th accused. This part of
the evidence given by P.Ws.1 & 2 is not at all challenged, acceptably.
Therefore, at any stretch of imagination, the prosecution party could not be
described as ‘aggressor’.
35. Aggression means “unprovoked attacking or hostility shown by a
person”. As per the Law Lexicon, Aggression means “the act of proceeding to
hostilities or invasion; a breach of peace or right of another or others; an
assault, in-road or encroachment; hence, any offensive action or procedure; as
an aggression upon a country, or upon vested rights or liberties”. From the
above definition, it could be said, if a person attacks first, without being
provoked, then alone generally, he could be called as an aggressor. The fact,
many persons had sustained injuries on the side of the accused person alone,
could not be the only reason, to label the other side as an aggressive party.
Here, in the presence of the sons, father was attacked, causing bleeding
injuries, which later took away his life also. Under the said circumstances,
one cannot expect, the sons should be the mute spectators and in the normal
course they would have acted violently also, to certain extent and in that
natural process alone, the accused party might have sustained injuries, which
is in our considered opinion, would not come within the meaning of aggressive
act by the complainant party. In this context, we have to see what is the
defence, where the incident had taken place, whether the complainant party
were armed with deadly weapons, etc.
36. The incident took place just in front of A4’s house, which is
near the common well, about 65 ft. or so as indicated in Ex.P.37. The house
of Vadivelu Pillai is on the northern side of the common well. According to
P.Ws.1 & 2, when they were standing near the common well, brushing their
teeth, the initial incident took place. After the assault by A1, naturally,
P.Ws.1 & 2 as spoken by them, chased A1, who took asylum in A6’s house, which
is adjacent to A3 & A4s’ house in the same road. The aggrieved or the victim
party not only in the previous incident, but also on the date of the incident,
at the first instance, naturally chased the first accused, and even went to
the house of A6. This act of the complainant party, in our considered view,
could not be described as an aggressive act. Therefore, the fact, P. W.1 was
standing before the house of the 6th accused and shouting at them, will not
lead to the inference, that they are the aggressors. As seen from the cross
examination, it seems, it is the case of the defence, that P.W.1 and his men
went to the house of the 6th accused, knowing that the first accused was
there, and attempted to attack them when the same was prevented by Nagammal
and Padma, they have assaulted them also. The relevant suggestion which would
indicate the defence “ehd; utp. v’;f mg;gh. md;gHfd;. uhjhgps;is. KUfd;.
bry;tk;. unk&;. fpU&;zgps;isa[k; Mfpnahh; ga’;fu Ma[j’;fSld; 6tJ vjphp
tPl;oy; Kjy; vjphp ,Ug;gij bjhpe;Jf;bfhz;L mth;fs; tPl;ow;F brd;nwhk; vd;gJk;
eh’;fs; 6tJ vjphpapd; tPl;oDs; cs;ns EiHe;J jhf;f Kad;wjhf mg;nghJ v’; fis 6tJ
vjphpapd; tPl;od; thrypy; 6tJ vjphp mtUila kidtp ehfk;khs;. 4 tJ vjphpapd;
mk;kh gj;kh. te;J v’;fsplk; mof;f ntz;lhk; vd;W nfl;Lk;. eh’;fs; mth;fis
jhf;fpndhk; vd;why; rhpay;y/ ,k;khjphp eh’;fs; te; jjhf brhy;tJk;. me;j
Fk;gYf;F mt’;f mg;gh tonty; gps;isa[k; fpU&;zgps; isa[k; jiyik jh’;fp te;jjhf
brhy;tJ rhpay;y@ As suggested above, if the complainant party had been to the
house of A6, with an aggressive intention to assault the first accused, that
too with deadly weapons, the first accused should have sustained serious
nature of injuries, in the hands of the so called “aggressive party”. But as
seen from Ex.P.19, he had sustained only laceration, abrasion of small
dimension, complaining pain over the right wrist. It seems, the first accused
had reported to the doctor that he was assaulted by two persons, in front of
Arjunapillai’s house, by stick and stone, which could not be generally
described as deadly weapons. Ex.P.34 complaint given by 6th accused son, also
does not disclose any deadly weapon, said to have been carried by the
complainant party. From the oral evidence of the prosecution witnesses, it is
crystal clear that the first accused alone had assaulted P.Ws.1 & 2, at the
first instance, which caused irritation, leading the subsequent incidents, in
the course of natural way.
37. On 21.12.1993, as spoken by P.Ws.5 & 6, the complainant party
was the suffering party. On 22.12.1993, when P.W.1 had questioned the conduct
of A1, the first accused not only challenged him, but also assaulted him and
P.W.2. The aggrieved persons viz., P.Ws.1 & 2, chased and attempted to
assault the first accused and this act could not be described, at any stretch
of imagination, as an aggressive act. Hearing the noise and on information or
so, the father of P.W.1 rushed to the scene of crime. During the cross
examination, it is not even specifically suggested, that the deceased was
armed with deadly weapon, so as to label him, as an aggressor, rushed to the
spot, to cause riot, followed by assault. From the acceptable oral evidence,
it is seen, an unarmed man was assaulted by the A3 and A5, with yokes, causing
bleeding injuries, and the said acts of the accused, would not certainly come
within the definition of right of private defence, that too, to cause death of
a person.
38. In Deo Narain v. State of Uttar Pradesh (AIR 1973 SC 473),
the Apex Court has held-
“For exercising the right of private defence, it is not necessary that the
party exercising it, must have actually received some injury at the hands of
the aggressor. It is a preventive and not punitive right.
In order to exercise this kind of right, as ruled by the Apex Court, the
accused party should have entertained reasonable apprehension of danger, not
on imaginary ground, but upon reality, such as seeing the crowd or the arms
carried by the other parties, and their ferocious nature, etc. Only on the
ground, that the complainant party came to the house of the accused, no
presumption could be drawn, that it is reasonable on the part of the accused,
to apprehend danger to their life, thereby to exercise the self defence, that
too, exceeding the limit. As pointed out by us, no material has been placed
before the Court to say empathetically that the deceased was armed with deadly
weapons, such as knife, sphere or even stick. It is also not the case of the
accused that some of the accused sustained several fatal injuries to the vital
organs of the body, thereby compelling them to entertain that the further act
of the complainant party would cause danger to their life and therefore,
apprehending the same, they have retaliated. No positive acceptable case,
that the deceased also attacked and caused injuries, to any one. On the basis
of an imaginary apprehension, if the accused party have exercised the so
called right of private defence, Section 96 I.P.C. would not come to their
aid.
39. Section 100 of I.P.C. gives right to the parties, to exercise
the right of private defence, even to cause death, under certain circumstances
viz., when (1) Such an assault may reasonably cause the apprehension that
death will otherwise be the consequence of such assault and (2) Such an
assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such an assault. If at all, in our case,
these two grounds would be available to the accused, but on facts they are not
available to them. It is the duty of the accused, to prove that they were
compelled to exercise the right of private defence and in that process alone,
Vadivelu died. For that, they should make out a case, such as, the weapon
used by the complainant party was deadly one, or the nature of assault and the
other surrounding circumstances were of such nature that unless they have not
attacked, their life would have been at peril. When the assault has not
assumed a dangerous form, it cannot be said, that on account of the assault
made by the deceased, the accused persons were well within their right to
cause such injuries, which were likely to cause the death of Vadivelu. A
person who claims right of private defence should show, that by the act of the
complainant party, he had no other option, except to reach the conclusion
reasonably, that the threat is immediate and real and he was compelled to
exercise this right. In this case, the incident took place just before the
house of A6, where the accused parties were more in number, the further fact
being, the complainant parties were not at all armed with any weapon. Under
the above facts and circumstances of the case, and in the light of the above
discussion, we are of the firm and considered opinion, that no right of
private defence is available to the accused and the assault of the accused
especially, A3 & A5, would not come within the meaning of right of private
defence. Taking shelter under Section 96 I.P.C., the accused could not escape
from their liability, if the offence is otherwise proved.
40. According to the prosecution, the eyewitnesses are P.Ws.1 to
5. Admittedly, all of them are related to each other. In fact, P.Ws.1,3 and
5 are the sons of the deceased and P.W.4 is the wife of P.W.5. i.e. the
daughter in law of the decease lu. As mentioned supra, some of the
eyewitnesses, who have been mentioned in the F.I.R, examined by the
investigating officer, have not been examined before the Court. On this
basis, the learned counsel for the appellants would submit, that the non
examination of the independent witnesses, is fatal to the prosecution and
believing the oral testimony of the interested witnesses, would be unsafe. We
have already concluded, that the non examination of any independent witness is
not fatal to the prosecution. It is not the law, that the oral testimony of
the interested witnesses, should not be believed at all and if at all, their
testimony require much more scanning, and in this view, precaution should be
taken, while assessing. Here, though the witnesses examined on the
prosecution side are interested in nature, presence of some of the witnesses
is admitted and others proved. Under the said circumstances, believing the
oral evidence of the prosecution witnesses, even ignoring the exaggeration if
any, should be reasonable and acceptable. In this view, we will consider the
oral evidence of the prosecution witnesses and find out what are the offences
made out.
41. P.W.1 being an injured person, had picturised the incident,
which took place on 22.12.1993 at about 8.00 a.m., informing the Court, the
previous day’s incident also, which he had met. It is the case of P.W.1, that
when he questioned the first accused, regarding his highhanded activity on the
previous day, he went inside the house of A6, took M.O.1 and assaulted not
only him, but also P.W.2. As mentioned supra, aggrieved by the conduct of the
first accused, according to P.W.1, when he and P.W.2 attempted to chase A 1,
he went inside the house of A6 and thereafter, the subsequent incident had
taken place. He has stated, that at the instigation of A3, the second accused
attacked him with M.O.2 and the 4th accused attacked him with M.O.3, reaper.
He further says that the second accused, Meganathan assaulted P.W.2 , by using
the same weapon viz., M.O.2. As spoken by P.W.1, the doctors have also
noticed the injuries. This evidence is corroborated by P.W.2, whose presence
is not very much challenged. P.W.2 had stated that the second accused
assaulted P.W.1 with M.O.2 and when he intervened, he was also assaulted by
A1, with M.O.4 causing injuries over his head. It is the further case of
P.W.2 that the second accused also assaulted him with M.O.2 causing injuries.
Another eye witness P.W.3 would state very fairly, that on hearing the noise,
when he went to the scene of crime, he had noticed the injuries sustained by
P.Ws.1 & 2 and thereafter, the second accused assaulted him with M.O.2. P.
W.3’s evidence makes clear, about the presence of the accused as well as the
injuries sustained by P.Ws.1 & 2, thereby corroborating their oral testimony.
The daughter in law of the deceased P.W.4, had also testified about the
incident, though she faile d to speak specifically the overt act committed by
all the accused. From the cross examination also, we are unable to find, much
contradictions or omissions so as to say that the injured have given false
evidence, in order to wreck vengeance, by implicating the accused, or
something like that. The trial Court considering the evidence available
against A1 and A2, for the offences committed by them, under Section 324
I.P.C., had imposed a sentence of fine of Rs.750/- each, for each count, with
usual default clause, taking a lenient view, probably considering the fact,
that some of the accused were also the victims of the incident. We do not
find any reason to deviate from the said findings and in this view, the
conviction and sentence slapped by the trial Court upon A1 & A2 under Section
324 I.P.C. is to be confirmed.
42. It is the specific case of the prosecution that A3 and A5 are
directly responsible for the murder of Vadivelu and accordingly charge No.7
was also framed against them. P.W.1 had stated, that his father, hearing the
incident, came to the scene of occurrence and questioned the conduct of the
accused viz., why they are assaulting his sons. According to P.W.1, when the
father had questioned so, the 5th accused assaulted him over his head with
M.O.5, whereas the third accused assaulted his father, over his head, causing
bleeding injuries. He has also identified those weapons as M.Os.5 & 6. As
seen from the cross examination also, it is not the specific case of the
accused that the deceased Vadivelu came there, armed with deadly weapon and
assaulted any one, causing some kind of injuries, thereby creating certain
kind of apprehension in the minds of the accused, to exercise the right of
private defence, which we have already negatived. Thus the oral evidence of
P.W.1 is crystal clear, without any shadow of doubt, that an unarmed man, who
questioned the conduct of the accused, in assaulting his sons, had been
assaulted, with an intention to commit murder, and that is why, they have
aimed the head of the deceased, causing bleeding injuries. It is also not the
submission of the learned counsel for the appellants, that due to sudden
provocation or something like that, A3 & A5 attacked the deceased and
therefore, their act, if at all should come under Section 304 I.P.C. or
something like that. It is the specific case of P.W.1, that the third accused
declared “3 tJ vjphp Rg;ukzpak; tPnlwp te;jtid bfhiyna tpGe;jhYk; guthapy;iy/
vtdhtJ xUtid tPH;j;jDk; vd;W brhd;dhs@;. thereby indicating the intention of
A3, to commit murder which was executed, when Vadivelu came to the spot,
shared by A5 also. In this view, there is a clear mensrea to commit the
murder and there is no possibility for A3 & A5, to escape from the clutches of
302 I.P.C. The evidence so given by P.W.1 regarding the overt act spoken by
him, implicating A3 and A5, is not at all challenged, to our satisfaction,
though an attempt was made, as if the complainant party was the aggressor.
From the cross examination also, it is seen that the evidence tendered by
P.W.1 during the examination in chief, was confirmed and it is not even
specifically suggested, that A3 and A5 have not assaulted the deceased, using
M.Os.5 & 6, though an attempt was made to say, that M.Os.5 & 6 were not used
by the accused and they are the material objects, prepared for the case, which
appears to be unacceptable to us, in view of the clear investigation, which
revealed the recovery of the weapons used, at the time of the commission of
the offence. The motive is also once again affirmed, during the cross
examination and not denied.
43. P.W.2, Thiru Selvam @ Selvakumar had given evidence regarding
the overt acts committed by A3 and A5. Though the witnesses had spoken about
the alleged act of the 6th accused, in catching hold of the deceased, the same
was not accepted by the trial Court and in that sense, he was relieved from
the clutches of 302 I.P.C. r/w 149 I.P.C. The oral evidence of P.W.2, as far
as the overt act of A3 and A5 is concerned, confirms the evidence given by
P.W.1, which is further strengthened by P.W.3, another injured. P.W.3 had
stated, that his father was assaulted by A3 & A5 by M.Os.5 and 6, causing
bleeding injuries, which took away his life at about 12.10 p.m. or so in the
hospital. In fact, it is suggested to P.W.3, when t he complainant party
attacked the accused party, the father sustained injuries and this suggestion
gives support to the prosecution evidence, which indicates that A3 and A5
alone had assaulted the deceased. The daughter in law of the deceased also,
had testified before the trial Court, about the crime committed by A3 and A5,
in assaulting Vadivelu, causing bleeding injuries. As seen from the cross
examination, it appears, the case of the defence is that under the leadership
of Vadivelu, the complainant party went to the accused place picked up
quarrels and in that pellmell, and wordy altercation, Vadivelu sustained
injuries. This would also suggest positively that the deceased was the victim
of the assault by A3 & A5. When P.Ws.1 & 2 have spoken in detail about the
late arrival of Vadivel, on hearing the incident, it is not erasably
questioned. Therefore, we are constrained to hold that the deceased came to
the spot, only on hearing the news, regarding the dispute between his sons and
accused party. As father, when he had seen his sons injured, naturally he
ought to have questioned the accused, which furiated A3 and A5, to assault so,
that too declaring to commit murder.
44. According to P.W.5, he was not actually present at the initial
stage of the incident. He would state, hearing the noise, his father and his
wife rushed to the scene of occurrence, and seeing the same, he had also
followed them. He had stated that his father requested the party to stop the
incident and at that time, the 3rd and 5th accused assaulted him with M.Os.5 &
6 and in this way, he identified the weapons also. I find no reason, though
he is the initial cause, for the previous day’s incident, on that score, he is
interested or inimically disposed, to discard his oral testimony, which is in
conformity with all probabilities, supported by other witnesses.
45. The brother of the deceased viz., Krishna Pillai (P.W.6) has
also stated that on 22.12.1993 when he was in his house, he heard the noise
and rushed to the spot, where he had seen P.Ws.1 to 3 with bleeding injuries,
as well as his brother in the lap of P.W.4 with bleeding injuries on the head.
It is the further case of P.W.6, he had also seen some of the accused. He
would state further, aggrieved by the conduct of the accused, he assaulted the
first accused, causing injuries and thereafter all the accused ran away, even
throwing the weapon used by them for assaulting the deceased. Though P.W.6 is
not an eyewitness, he confirms the subsequent act which lends support to the
oral testimony of other witnesses. The injuries sustained by the deceased as
per medical report, are in accordance with the evidence given by the
eyewitnesses and we find no contradictions or omissions in this regard. The
doctor has opined that injury No.1 certainly would have caused death, but it
is not the case. The other injuries are harmless. As seen from Ex.P.197,
first two injuries are lacerated in nature, more or less, having the same
dimension, though the second injury is less in size, causing bone deep injury
to the frontal region of the head. The witnesses were also unable to say,
which injury was caused by which accused viz., A3 and A5. But, it is the
positive and definite case that both have caused head injuries. There
intention is also so clear that they have aimed the head of Vadivelu, on the
basis of the declaration made by A3. In this view, both should be held
responsible, since acted sharing the common intentions also. Thus, satisfying
ourselves to the entire extent about the act of A3 and A5, we conclude that
because of the injuries inflicted by A3 & A5, using M.Os.5 & 6, Vadivelu
succumbed to the same, on the same day, for which, as rightly held by the
trial Court, A3 & A5 should be held responsible and in this view, we are
constrained to confirm the findings rendered by the trial Court as far as A3 &
A5 are concerned under Section 302 I.P.C.
46. Thiru Muniappan, P.W.17, the Investigating Officer has spoken
about the investigation of the case, commencing from 23.12.1993 at about 8.00
a.m.. According to him, he inspected the premises, conducted inquest,
recovered M.Os.5 & 6, not only from the scene of crime, but also from one
Venupillai, under Ex.P.17. It is the specific case of the eyewitnesses, that
when A3 used yoke, t o attack the deceased, the same was broken into two
pieces, which is confirmed by Ex.P.32 also. The Serologist’s Report would
indicate, that the yoke contained human ‘B’ Group blood as that of the
deceased, as seen from Ex.P.33, thereby probabalizing and establishing, that
A3 and A5 had used the yokes, to assault Vadivelu. In the investigation
conducted by P.W.17 also, we are unable to find any grey area, creating any
spontaneous doubt, to cast cloud upon the prosecution case. All the witnesses
have deposed before the trial Court, even as per the statements given by them,
before the Investigating Officer, without much contradiction barring the
natural commissions and omissions.
47. The learned trial Judge considering all the above facts and
circumstances of the case, weighing the evidence in its proper scale, came to
an irresistible conclusion that A3 and A5 are liable to be dealt with under
Section 302 I.P.C. Concurring with the said findings, we conclude that there
is no merit in the appeal and the appeal is liable to be dismissed.
In the result, for the aforementioned reasons, the appeal fails. The
judgment of conviction and sentence in S.C.No.83/95 dated 18.12.1995 on the
file of the Court of Principal Sessions Judge, Villupuram Ramasamy Padayachiar
District, is confirmed. Accused 3 and 5 are directed to surrender before the
trial Court since on bail, within 15 days from today. On their failure to
surrender, the trial Court is directed to secure the accused to undergo the
remaining period of sentence.
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