JUDGMENT
M. Karpagavinayagam, J.
1. A-1 Sundaramurthy was convicted for the offences under Sections 294, 341 and 302 read with 109 I.P.C. A2 Ramachandran was convicted for the offences under Sections 294 and 302 I.P.C. They were each sentenced to undergo life imprisonment for the offence under Section 302 read with 109 and 302 I.P.C., respectively and rigorous imprisonment for three months for the offence under Section 294. A1 was also sentenced to undergo one month simple imprisonment for the offence under Section 341 I.P.C. Aggrieved by the said conviction and sentence, this appeal has been filed by the accused 1 and 2.
2. The case of the prosecution in brief is as follows:-
” a) The deceased Subramanian is the husband of Kanagavalli P.W.1. P.W.3 Ranganathan is the father of the deceased. P.W.4 Vellachi is the wife of P.W.3. A-1 Sundaramurthy is the brother of P.W.3 Ranganathan. A-2 Ramachandran is the brother-in-law of A-1. One Papathi is the daughter of A1. She got married to Sundaramurthy P.W.6, who is the elder brother of P.W.1 Kanagavalli. A-1 and other witnesses are residing in Palur Colony.
b) Three days prior to the date of occurrence, “Valaikappu” function of Papathi was celebrated at the house of P.W.6. In order to attend the function, A1 Sundaramurthy came to the village. Thereafter, A-1 Sundaramurthy took his daughter Papathi to his house at Palur.
c) Next day, P.W.6 came to Palur Colony and met P.W.1, his sister. P.W.1 Kanagavalli requested P.W.6 Sundaramurthy to give some money. Accordingly, P.W.6 gave Rs. 15/- to her. Thereupon, he went to A-1’s house, where Papathi wife of P.W.6 asked him to give money. P.W.6 told her that already he had given money to P.W.1. On hearing these words, Papathi got angry and abused P.W.6 Sundaramurthy.
d) The occurrence took place on 18.8.1997 evening. P.W.1 Kanagavalli and her husband Subramanian were in their house. At that time, Papathi and Malaiammal, A-1’s wife abused the family of P.W.1. On hearing these words, P.W.1 and the deceased went near the house of the accused and questioned. At that point of time, A-1 came there and caught hold of the hands of the deceased Subramanian and A-2 took out a koduval from his waist and cut the deceased on his left neck. Then, the witnesses P.W.1, P.W.3 father of the deceased, P.W.4 mother of the deceased and P.W.5 Sakthivel, who is the resident of the village raised alarm. Then, the accused ran away from the scene.
e) The deceased on receipt of injuries staggered himself and came near to his house and fell down. Immediately, P.W.1 and others took steps to take him to the hospital in a bus at about 9 p.m. The deceased was taken to the Government Hospital, Cuddalore. The Doctor after examining him declared as dead. Ex.P7 intimation was sent from the hospital to Police Station. P.W.8, Sub-Inspector of Police, went to the hospital and recorded statement from P.W.1. Ex.P1 is the complaint. Ex.P6 is the First Information Report.
f) On receipt of the message, P.W.9, Inspector of Police took up investigation and rushed to the hospital. He conducted inquest on the dead body of the deceased between 6.30 a.m. and 9.30 a.m. on 19.8.1997. Ex.P8 is the inquest report.
g) On requisition, at about 10.30 a.m., P.W.2 Doctor conducted Post-mortem and found a cut injury on the left side of neck. The Post-Mortem Certificate is Ex.P3. He found no other external injury. He opined that the deceased would appear to have died due to shock and haemorrhage.
h) In the meantime, P.W.9 Inspector of Police went to the scene of occurrence at about 10.30 a.m. and prepared Observation Mahazar Ex.P.9 and rough sketch Ex.P.10 and recovered blood stained earth and sample earth from the scene place. He also recovered the clothes of the deceased.
i) On 19.8.1997 at about 7 p.m., P.W.9 Inspector of Police arrested both the accused in the presence of P.W.7 and on the confession of A-2, he recovered M.O.1. Koduval. Thereafter, the Inspector of Police arranged for sending the material objects for chemical examination. After completing the investigation, he filed the charge sheet for the offences under Sections 294, 341 and 302 read with 109 I.P.C.”
3. During the course of trial, the prosecution examined nine witnesses, filed 16 Exhibits and marked six Material Objects.
4. When the accused was questioned under Section 313 of the Code of Criminal Procedure, they simply denied their complicity in the crime.
5. The trial court ultimately convicted both the accused for the offences referred to above. Hence, this appeal.
6. Mr. S. Shivakumar, Amicus Curiae, appearing for the appellants would elaborately argue by reading out the relevant portions of the evidence and would contend that the evidence available on record would not clinchingly prove that the appellants had committed the offences with which they were charged. It is further submitted that there is no evidence for the offence under Section 294 I.P.C. as the words uttered by the accused have not been mentioned in the deposition of the witnesses.
7. The counsel would also submit that the arrest and recovery is doubtful since the evidence relating to the same is not consistent, on perusal of the evidence of P.W.1, P.W.7 and P.W.9. The fact that the blood stained earth had not been taken from the scene of occurrence would also prove the place of occurrence is doubtful. He would further contend that the evidences as against A-1 is not consistent, especially, when in the charge, it is stated that he caught hold of the legs and the witness would state that A-1 caught hold of his hands and as such, A-1 cannot be convicted for the charge of instigation. Ultimately, he would submit that even assuming the part played by A-2 for having caused injury on the neck of the deceased, to be true, the act committed by him would not fall under Section 302, but it would fall either under Section 304(Part I) or under Section 304(II) IPC, in view of the fact that the occurrence took place out of a sudden quarrel and the second accused gave a cut with Koduval only once.
8. Mr. E. Raja, learned Additional Public Prosecutor by reading out the relevant portions of the deposition would submit that the reasonings given by the trial court on the basis of the materials available on record for convicting the accused are valid and therefore, the conviction and sentence are liable to be confirmed.
9. We have given our thoughtful consideration to the rival contentions and also gone through the records.
10. There are four eye witnesses. P.W.1 is the wife of the deceased, P.W.3 is the father of the deceased. P.W.4 is the mother of the deceased and P.W.5 is the independent witness. All these witnesses would consistently state that the occurrence had taken place near the neem tree and there was a quarrel for about fifteen minutes and in the said quarrel, A-1 caught hold of the hands of the deceased and A2 attacked him with koduval.
11. It is the specific evidence of P.W.7 and P.W.9 that the accused was arrested on 19.8.1997 and weapon M.O.1 koduval was recovered from him. P.W.2 Doctor would state that M.O.1 koduval would cause the injury found on the deceased.
12. It is contended that the arrest and recovery is doubtful, inasmuch as the evidence of P.W.1 in the cross- examination would show that she found both the accused in a hand cuff in the Police Station itself on the same day i.e. on 18.8.1997. On the basis of this evidence of P.W.1, this Court is not inclined to reject the evidence of P.W.7 and P.W.9.
13. As a matter of fact, P.W.8 Sub Inspector of Police, who registered the First Information Report and P.W.9, who arrested the accused on 19.8.1997 and recovered M.O.1 had never been questioned in the cross-examination with reference to the alleged arrest on 18.8.1997. Therefore, the statement made by P.W.1 that she saw the accused in the Police Station on 18.8.1997 is purely a mistake.
14. On going through the ocular testimony, it is clear that they are giving clear and consistent version with reference to the part played by A-2. Therefore, there is no difficulty in accepting their version with regard to the overt act attributed against A2, who had caused injury on the deceased.
15. With reference to the charge against A-1, we find there is no consistency. It is noticed from the charge framed by the trial court on the basis of the records available under Section 173 of Cr.P.C. that the trial court framed second charge against A-1 that he caught hold of the legs of the deceased, while he was attacked by A-2. But, the evidence adduced by the eye witness that he caught hold of the hands.
16. As correctly pointed out by the learned counsel for the appellants that there is no evidence for abutment as against A-1. Admittedly, the quarrel ensued between P.W.1 on one side and Malaiammal and Papathi on the other side. It is the case of the prosecution that A-1 came to the scene when the quarral was going on and caught hold of the hands of the deceased. At that point of time, A-2 also came there and took out M.O.1 Koduval, which was kept in his waist and then, gave a single cut.
17. It is settled law that even assuming that there is no direct evidence for the charge of abetment framed against A1, if the Court finds that there are materials to show that there is common intention, there will be no difficulty to convict him for the offence under Section 302 read with 34 IPC. But, the question is whether at least the prosecution has proved the common intention shared by both the accused, while the second accused stabbed on the neck of the deceased. Admittedly, there is no evidence to show that A-1, while catching hold of the hands of the deceased asked the second accused to stab him. Equally, we do not find any material to show that A1, while he was catching hold of the hands knew that A-2 had come with the weapon and he would cause injury on the neck of the deceased.
18. Under those circumstances, we are unable to hold that A-1 shared the common intention or instigated the act committed by A-2. In view of the above fact situation, we cannot hold that A-1 had committed the offences under Sections 341 and 302 read with 109 IPC or 302 read with 34 IPC. Hence, A-1 is liable to be acquitted. Accordingly, A-1 is acquitted.
19. In respect of A-2, it is contended that the second accused did not have the intention to commit murder of the deceased and there was no motive. Admittedly, the occurrence had taken place in a sudden quarrel. It is also noticed from the evidence of P.W.1 that on hearing the abusive words of Papathi and her mother-in-law Malaiammal, both P.W.1 and the deceased went to the house of the accused and questioned them as to why they had abused in a filthy language. Further, quarrel ensued between both the parties. The said quarrel continued for some time, about fifteen minutes. Admittedly, both were quarrelling with each other using abusive language. So in that context, A-2 came and took out a Koduval gave a single cut on the neck and ran away from the scene. Though it is an injury caused on the neck, it is to be noted that the death was not instantaneous and in fact, the deceased was taken in a bus and brought to the hospital at about 9 p.m., where the deceased was declared dead.
20. In view of the above situation, it cannot be contended that the second accused had intended to commit the murder of the deceased while causing injury on the neck. At the most, it can be held that the second accused gave a single cut on the neck with intention to cause injury as is likely to cause death. Therefore, the conviction under Section 302 IPC on the second appellant is liable to be set aside and instead, he is liable to be convicted under Section 304(Part-I) IPC.
21. In fine, the appeal is allowed as far as the first appellant (A1) is concerned and the conviction and sentence imposed upon him are set aside. A1 is directed to set at liberty forthwith, unless he is required for any other case. As far as the second appellant (A-2) is concerned as indicated above, he is convicted for the offence under Section 304 (Part-I) IPC and sentenced to undergo rigorous imprisonment for seven years.
22. This Court record its appreciation over the service rendered by Mr. S. Shivakumar, the Amicus Curiae and he is entitled to fee for the same. Therefore, the State Legal Services Authority, Chennai is directed to pay Rs. 1500/= as fee to the Amicus Curiae Mr. S. Shivakumar.