{"id":109746,"date":"2003-04-21T00:00:00","date_gmt":"2003-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mariappan-vs-state-rep-by-on-21-april-2003"},"modified":"2017-08-13T07:18:36","modified_gmt":"2017-08-13T01:48:36","slug":"mariappan-vs-state-rep-by-on-21-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mariappan-vs-state-rep-by-on-21-april-2003","title":{"rendered":"Mariappan vs State Rep. By on 21 April, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Mariappan vs State Rep. By on 21 April, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 21\/04\/2003\n\nCORAM\n\nTHE HONOURABLE MR JUSTICE  N.DHINAKAR\nand\nTHE HONOURABLE MR JUSTICE  S.ASHOK KUMAR\n\nCriminal Appeal No.  448 of 2000\n\n\n1. Mariappan,\n   Son of Perumal.\n\n2. Mariappan,\n   Son of Arumugam                              ... Appellants.\n\n-Vs-\n\nState rep. by\nInspector of Police,\nTirunelveli Palam Police Station.               ... Respondent\n\n\nPrayer:  Appeal against the  judgment  passed  by  the  learned  I  Additional\nSessions Judge, Tirunelveli, in S.C.No.  59 of 1998 dated :  21.1 .2000.\n\n!For Appellant :  Mr.M.Paul Rajendran\n\n^For Respondent :  Mr.M.K.Subramanian\n                Govt.  Advocate (Crl.side)\n\n\n:JUDGMENT\n<\/pre>\n<p>(Judgment of the Court was delivered by N.  DHINAKAR, J)<br \/>\n        The appellants, two in number, who in the judgment will be referred to<br \/>\nas &#8220;A.1&#8221; and &#8220;A.2&#8221;, for the sake of convenience, were tried along with another<br \/>\nby  name  Immanuel,  who was arrayed as A.3 before the learned Sessions Judge.<br \/>\nThe allegation against A.1, A.2 and A.3 is that at 11.30 p.m.   on  14.5.1997,<br \/>\nthe  accused, in furtherance of the common intention of each other, caused the<br \/>\ndeath of the deceased, Ganapathy, son of Manickam, by A.1 cutting him  on  the<br \/>\nneck  and A.2 also cutting him on the back of neck and A.3 stabbing him on the<br \/>\nstomach and on account of the said cut  injuries  suffered  by  the  deceased,<br \/>\nGanapathy, his  head  was severed and he died.  To prove the above allegation,<br \/>\nthe prosecution, before the trial Court, examined  P.Ws.1  to  16  and  marked<br \/>\nExs.P.1 to P.18  as  well  as  M.Os.   1 to 8.  The learned trial Judge, while<br \/>\naccepting the prosecution version as against A.1 and A.2 and  convicting  them<br \/>\nunder  Sections 302 read with 34 IPC., acquitted A.3 on the ground that he was<br \/>\nnot implicated as an accused in the first information statement, Ex.P.1, given<br \/>\nby P.W.1 and that he did not also give the identifying features of  A.3,  when<br \/>\nhe gave  the  complaint  to  the police.  On being convicted, A.1 and A.2 were<br \/>\nsentenced each to imprisonment for life and each one of them was also directed<br \/>\nto pay a fine of Rs.1,000\/- with a default sentence of three  months  rigorous<br \/>\nimprisonment.   The  said  conviction and sentence are being challenged in the<br \/>\nappeal, while the acquittal of A.3 had become final,  as  the  State  has  not<br \/>\nchosen to prefer any appeal against the said acquittal.\n<\/p>\n<p>        2.  The brief facts are as follows:-\n<\/p>\n<p>        P.W.1 is  the  elder  brother  of the deceased and P.W.2.  The accused<br \/>\nwere known to P.W.1.  P.Ws.1, 2 and the deceased were masons by profession and<br \/>\nduring the relevant period, P.W.1 was residing at Lakshmipuram in  C.N.Village<br \/>\nand prior to that, he was residing at Kuruthudaiyarpuram.  Lakshmi and Chandra<br \/>\nwere  related  to  P.W.1 and the deceased and during the relevant period, they<br \/>\nwere residing at Kuruthudaiyar Puram village.    They  were  eking  out  their<br \/>\nlivelihood by  working  at construction sites.  A.1 and A.2, who are masons by<br \/>\nprofession, developed intimacy with Lakshmi and Chandra, who were deserted  by<br \/>\ntheir respective  husbands.    A.2  developed  intimacy  with  Chandra and A.1<br \/>\ndeveloped intimacy with Lakshmi.  This was not to the liking of the  deceased,<br \/>\nGanapathy  and  he, therefore, advised Lakshmi and Chandra not to have illicit<br \/>\nrelationship with either of the accused.  The said advice of the deceased  was<br \/>\npromptly conveyed  by Lakshmi and Chandra to A.1 and A.2.  On account of this,<br \/>\nthe accused bore a grudge against the deceased.\n<\/p>\n<p>        3.  At about 5.00 p.m.  on 14.5.1997, P.Ws.1,  2,  one  Raja  and  the<br \/>\ndeceased were  standing in front of the provision store of P.W.4.  A.1 and A.2<br \/>\nwent there and picked up a quarrel with the deceased.   They  also  threatened<br \/>\nthe  deceased  not  to  interfere  in  their  affair by telling him that if he<br \/>\ninterferes, they will remove his head.    The  witnesses,  who  were  present,<br \/>\npacified the accused  and  sent  them  away.  At about 10.00 p.m.  on the same<br \/>\nnight, P.W.1 developed cough as he was a T.  B.  patient.  He, therefore, left<br \/>\nhis house to go to the medical store to buy tablets and along with him he took<br \/>\nP.W.2.  While P.Ws.1 and 2 were proceeding towards a junction and were near  a<br \/>\npublic lavatory,  they heard someone pleading for mercy.  They went behind the<br \/>\nlavatory to find the deceased standing there surrounded by A.1 to  A.3.    A.1<br \/>\nholding  the  hand  of the deceased, cut him, which fell on his left shoulder.<br \/>\nA.2, with an aruval, cut him on the neck.   The  deceased  fell  down  on  the<br \/>\nseptic tank, which was on the west of public lavatory.  A.3 stabbed him on the<br \/>\nstomach.   A.1  cut  the deceased on the neck indiscriminately and severed the<br \/>\nhead.  P.Ws.1 and 2 pleaded with the accused not to cut their brother; but the<br \/>\naccused threatened them by telling them that they will meet the same  fate  if<br \/>\nthey interfere.  They also threatened the witnesses not to inform others about<br \/>\nthe incident  and  ran  away towards west.  P.W.1, leaving P.W.2 near the dead<br \/>\nbody of his brother, went and informed the Village  Nattanmai,  Shanmugam  and<br \/>\nthey  proceeded  to  Tirunelveli  Bridge Police Station, which they reached by<br \/>\n2.00 a.m.  on 15.5.1997.  At the police station, P.W.1 narrated  the  incident<br \/>\nto P.W.11,  the Sub Inspector of Police.  P.W.11 reduced the said statement of<br \/>\nP.W.1 into writing.  The said statement of P.W.1 is Ex.P.1.  P.W.11 registered<br \/>\na case in Crime No.  302 of 1997 against A.1, A.2  and  another  person  under<br \/>\nSection 302 IPC.    by  preparing  express  reports.  Ex.P.13 is a copy of the<br \/>\nprinted first information report.  The express reports were sent to the higher<br \/>\nofficials including the Inspector of Police, P.W.14.\n<\/p>\n<p>        4.  P.W.14, on receipt of the information, reached Tirunelveli  Bridge<br \/>\nPolice  station,  where  he  was given a copy of the printed first information<br \/>\nreport.  He took up investigation in  the  crime  and  reached  the  scene  of<br \/>\noccurrence at 6.00 a.m.  and in the presence of P.W.3, prepared an observation<br \/>\nmahazar, Ex.P.2, between  6.00  a.m.   and 6.30 a.m.  He also prepared a rough<br \/>\nsketch, Ex.P.17.  He seized blood-stained cement, M.O.4, sample cement,  M.O.5<br \/>\nand  a  pair  of  slippers, M.O.6, under a mahazar Ex.P.3 attested by the same<br \/>\nwitnesses.  Inquest over the body of Ganapathy was conducted between 8.00 a.m.<br \/>\nand 11.00 a.m.  in the presence of Panchayatdars and at the time  of  inquest,<br \/>\nP.Ws.1 and  2  were questioned and their statements were recorded.  Ex.P.18 is<br \/>\nthe inquest report.  The officer, after the inquest, issued a  requisition  to<br \/>\nthe doctor and sent the dead body to the hospital for the purpose of autopsy.\n<\/p>\n<p>        5.   On  receipt  of  the  requisition,  P.W.13,  Reader in Pathology,<br \/>\nTirunelveli Medical College, Tirunelveli, conducted autopsy on the  dead  body<br \/>\nof Ganapathy and found the following injuries:-\n<\/p>\n<p>1.2 x 1 cm x muscle deep defence cut injury seen on the base of right terminal<br \/>\nphalanx.  The underlying soft tissues found cut.  Bone  normal.\n<\/p>\n<p>2.Irregular abrasions seen on the right lower abdomen.\n<\/p>\n<p>3.Head and  Trunk  seen  separately.   On alignment, it belongs to one and the<br \/>\nsame individual.\n<\/p>\n<p>Trunk:  Head severed at the level of C.3 vertebra and the raw area mesuring 18<br \/>\nx 14 cm.  The margins are sharp with surrounding bruising several tags of  cut<br \/>\nportion of  skin  at  the  margins indicating multiple cuts.  Apart from this,<br \/>\nthere is a a flap of skin, with soft tissue and with cut portions of  cervical<br \/>\nvertebra seen  on the left side close to the clavicle.  The soft tissues along<br \/>\nthe left clavicle were found cut and exposed.  The cut  portions  of  Trachea,<br \/>\nOesophagus found protruding with fresh bleeding points.\n<\/p>\n<p>4.9 x 4 cm.  cut injury seen along the right clavicle extending to the axilla.<br \/>\nThe soft  tissues  at  site  found  cut.   The right clavicle found cut in the<br \/>\ncentre.\n<\/p>\n<p>5.Three parallel (3 x 3 cm each) cut injuries seen  just  below  the  previous<br \/>\ninjuries.  The soft tissue found cut.\n<\/p>\n<p>6.HEAD:   Heavy  cut  (7 x 2 cm) injury seen on the left side of face from the<br \/>\nlateral end of mustache to the ankle of mandible.  The angle of  the  mandible<br \/>\nalong with soft tissues found cut.  The head found severed at the level of C.3<br \/>\nalong with the soft tissues and neck structures.\n<\/p>\n<p>7.The dimensions  of  the  head  cut  injuries  were 18 x 6 cm.  margins shows<br \/>\nseveral cuts with tags of skin hanging from the edges.\n<\/p>\n<p>8.ON DISSECTION OF SCALP:  3 x 1 cm.  bruising seen on the  centre  of  scalp.<br \/>\nVault:  Normal.  Brain:  C\/s.  Pale.  Base of Skull:  Normal.\n<\/p>\n<p>9.Stab injury  6 x 4 cm seen just below the umbilicus.  On further exploration<br \/>\nthe ileum cut through and through.\n<\/p>\n<p>The doctor issued Ex.P.16, the post-mortem certificate, with his opinion  that<br \/>\nthe death was on account of decapitation of the head.\n<\/p>\n<p>        6.   P.W.14,  continuing  with his investigation, questioned P.W.4 and<br \/>\nothers, whose statements were recorded.  On 19.5.1997, he  questioned  P.W.13,<br \/>\nthe doctor, who conducted autopsy and his statement was recorded.  He arrested<br \/>\nA.3 at 7.00  a.m.    on  20.5.1997  at  Tirunelveli  railway station.  A.3 was<br \/>\nquestioned and he gave a statement.  The admissible portion of  the  statement<br \/>\nof  A.3  is  Ex.P.4 and in pursuance of the said statement, he took the police<br \/>\nparty to a Mandapam at Kurukuthurai,  where  from  a  bush,  he  produced  two<br \/>\naruvals  and  a  knife,  M.Os.1 to 3, which were seized under a mahazar Ex.P.5<br \/>\nattested by P.W.5.  A.3 was brought to the police station and  sent  to  Court<br \/>\nfor remand.    On  the  same day, he questioned P.W.5 and another and recorded<br \/>\ntheir statements.  On 23.5.1997  he  came  to  know  that  A.1  and  A.2  have<br \/>\nsurrendered before  Judicial  Magistrate, Tiruchendur.  On 27.5.1997 he gave a<br \/>\nrequisition to the Magistrate to conduct test identification  parade  for  the<br \/>\npurpose of identifying A.3.\n<\/p>\n<p>        7.    On   receipt  of  the  requisition,  Judicial  Magistrate  No.6,<br \/>\nTirunelveli, conducted test identification parade on 6.6.1997.   At  the  test<br \/>\nidentification  parade, P.W.1 could not identify A.3; but he was identified by<br \/>\nP.W.2.  Ex.P.8 are the proceedings of the learned Magistrate in respect of the<br \/>\ntest identification parade conducted by him.\n<\/p>\n<p>        8.  P.W.14, continuing  with  his  investigation,  sent  the  material<br \/>\nobjects to  Court.    He  gave  a requisition to the Court to forward them for<br \/>\nanalysis.  He retired on 31.5.1997 and handed over the case file  to  the  Sub<br \/>\nInspector of  Police  on  the date of his retirement.  Later, the final report<br \/>\nwas filed.\n<\/p>\n<p>        9.  The accused were questioned under Section 313 of the Cr.P.C.    on<br \/>\nthe incriminating  circumstances  appearing against them.  They denied all the<br \/>\nincriminating circumstances.  They did not examine any witness on their side.\n<\/p>\n<p>        10.  The learned counsel appearing for the appellants  (A.1  and  A.2)<br \/>\nsubmits  that  the occurrence could have taken place much later to 11.0 0 p.m.<br \/>\nand the prosecution having failed to  examine  any  independent  witness,  the<br \/>\ntrial  Court  was  not justified in convicting the two accused on the basis of<br \/>\nthe evidence of two close relatives.  We have  heard  the  learned  Government<br \/>\nAdvocate  (Crl.side)  on  the  above  contentions  and  perused  the  recorded<br \/>\nevidence.\n<\/p>\n<p>        11.  The cause of the death of Ganapathy is beyond dispute.    P.W.13,<br \/>\nthe  doctor,  conducted  autopsy  on  the dead body of Ganapathy and found the<br \/>\ninjuries, which he noted in Ex.P.16, the  post-mortem  certificate.    In  his<br \/>\ndeposition  before  Court,  he  has  stated  that  the death was on account of<br \/>\ndecapitation.  On the medical evidence, we hold that Ganapathy died on account<br \/>\nof homicidal violence.  The said fact was also not  disputed  by  the  accused<br \/>\nbefore the trial Court.\n<\/p>\n<p>        12.   P.Ws.1  and  2,  the  brothers of the deceased, were examined to<br \/>\nprove that A.1 and A.2 inflicted the injuries, which resulted  in  his  death.<br \/>\nIt  is  the  evidence  of  P.W.1 that Lakshmi and Chandra, who were related to<br \/>\nthem, developed intimacy with A.1 and A.2 and the deceased advised them not to<br \/>\ncontinue their relationship with A.1 and A.2.  It is the further  evidence  of<br \/>\nP.W.1 that Lakshmi and Chandra, in turn, informed A.1 and A.2 about the advice<br \/>\nrendered  by  the deceased and the accused were, therefore, not happy with the<br \/>\ndeceased.  According to P.W.1, at about  5.00  p.m.    on  14.5.1997,  he  was<br \/>\nstanding  in front of the provision store of P.W.4 along with the deceased and<br \/>\nhis brother, Murugan and Raja was also there.  It is  the  evidence  of  P.W.1<br \/>\nthat the accused, on seeing the deceased at that place, asked him as to why he<br \/>\nis  interfering  in  their personal affairs and also took him to task and that<br \/>\nthey threatened the  deceased  with  his  life  by  telling  him  that  if  he<br \/>\ninterferes, his  head  will be severed.  This is said to be the motive for the<br \/>\nincident, which took place at about 11.00 a.m.  or 11.30 a.m.    on  the  same<br \/>\nday.  According  to  P.W.1, he was a T.B.  patient and at about 10.00 p.m., he<br \/>\ndeveloped some respiratory problem and wanted to purchase medicine.    He  has<br \/>\nstated  that he left his house for the medical store taking along with him his<br \/>\nbrother, P.W.2 and while they were on their way to  the  medical  store,  they<br \/>\nheard someone pleading for mercy and the sound was heard emanating from behind<br \/>\na public lavatory.  According to P.Ws.1 and 2, both of them went there only to<br \/>\nfind the  deceased  surrounded  by A.1 to A.3.  They have further deposed that<br \/>\nthe deceased was first cut by A.1 followed by A.2 and after receiving the said<br \/>\ncut injury from A.2, the deceased fell down on the septic tank.    A.3,  then,<br \/>\nstabbed the deceased.  They have also stated that A.1 indiscriminately cut the<br \/>\ndeceased on  the  neck  and  severed  the  head.    It  is the evidence of the<br \/>\nwitnesses that they were also threatened by the accused with  their  life  and<br \/>\nthat after the incident, they went towards west.  The evidence of P.Ws.1 and 2<br \/>\nfurther  indicate  that  after the incident, P.W.2 was left near the dead body<br \/>\nand P.W.1 went and informed Shanmugam, the Village Nattanmai and that both  of<br \/>\nthem  went  to  Tirunelveli Bridge Police Station and a complaint was given by<br \/>\nP.W.1 to P.W.11, the Sub Inspector of Police at 2.00 a.m.  The said complaint,<br \/>\nwhich was registered as a crime at 2.00 a.m., was received  by  the  Court  at<br \/>\n6.00 a.m.,  as could be seen from the original records.  The occurrence having<br \/>\ntaken place at 11.00 p.m.  on 14.5.1997, the complaint having been  registered<br \/>\nas a  crime  at  2.00  a.m.    on  15.5.1997,  which  was also received by the<br \/>\nMagistrate at 6.00 a.m.  on the same day, there is  no  delay  in  laying  the<br \/>\ncomplaint.   In  the  said  complaint,  P.W.1 has mentioned A.1 and A.2 as the<br \/>\nassailants of the deceased and has also stated that yet  another  person,  who<br \/>\ncould be  identified,  inflicted  the  stab injury.  As we have already stated<br \/>\nthat A.3 was acquitted because P.W.1 did not give the identifying features  of<br \/>\nA.3 and  a  perusal  of  the  evidence  of  P.W.6  shows  that  though P.  W.2<br \/>\nidentified A.3 at the test identification parade, he  was  not  identified  by<br \/>\nP.W.1.  In any event, the fact remains that in the complaint, Ex.P.1, the name<br \/>\nof  A.1 and A.2, who stand convicted and who are the appellants in the appeal,<br \/>\nhave been implicated as persons, who  inflicted  the  fatal  injuries  on  the<br \/>\ndeceased.   On going through the cross-examination of P.Ws.1 and 2, we find no<br \/>\nmaterial in favour of  the  defence  and  the  only  suggestion  made  to  the<br \/>\nwitnesses  is that they were not there at the time of incident and later, came<br \/>\nto the scene of occurrence on coming to know about the occurrence.  We find no<br \/>\ninfirmity in their evidence  and  merely  because  they  happened  to  be  the<br \/>\nrelatives of  the  deceased,  their evidence cannot be rejected.  It is common<br \/>\nknowledge that close relatives will be more interested in implicating the real<br \/>\nassailant and will not come out with the false version implicating  a  person,<br \/>\nwho is  not  connected  with  the  crime.  The defence did not also elicit any<br \/>\nanswer in favour of the accused to  show  that  P.Ws.1  and  2  were  inimical<br \/>\ntowards the  accused  for  them  to  implicate  them.   On going through their<br \/>\nevidence, we find no infirmity in it.  It is no doubt  true  that  there  were<br \/>\nseveral  houses  near  the  scene of occurrence and the non-examination of the<br \/>\npersons, who were present in those houses at that time, in our  view,  is  not<br \/>\nfatal to the  prosecution.   The occurrence had taken place at 11.30 p.m.  and<br \/>\nmost of the inmates of the house would have been in their beds.  P.Ws.1 and  2<br \/>\nwere  there  at  the  scene of occurrence as they were proceeding to a medical<br \/>\nstore to purchase tablets and therefore, had an opportunity of witnessing  the<br \/>\nincident  and  merely  because  there  were  several  houses near the scene of<br \/>\noccurrence, this Court cannot infer  that  the  inmates  of  the  houses  also<br \/>\nwitnessed  the  incident and the prosecution withheld those witnesses from the<br \/>\nCourt.  The contention of the counsel on the above point, therefore, fails.\n<\/p>\n<p>        13.  The other contention of the counsel  that  the  occurrence  could<br \/>\nhave taken  place  much after 11.30 p.m.  is to be stated only to be rejected.<br \/>\nIt is no doubt true that P.W.13, the doctor, who conducted autopsy has  stated<br \/>\nthat  it  is  possible  that  the deceased would have died about 9 to 10 hours<br \/>\nprior to autopsy, which was conducted at 12.30 p.m.  on 15.5.1997.  The  above<br \/>\nevidence of  P.W.13  is opinion in nature.  The doctor, of course, found fully<br \/>\ndigested food particles and has also  stated  that  he  found  fully  digested<br \/>\nnon-vegetarian food  in  the stomach of the deceased.  In this background, the<br \/>\nevidence of P.W.1 has to be considered.  He has stated that after the incident<br \/>\nat 5.00 p.m., which took place in front of the shop of P.W.4, he  returned  to<br \/>\nhis house and took food along with his brothers and later left for the shop at<br \/>\n10.00 p.m.,  when  he developed some difficulty.  This shows that the deceased<br \/>\nhad his last meals by about 6.00 p.m.  or  7.00  p.m.    on  14.5.1998.    The<br \/>\ndoctor,  in  cross-examination,  has  stated  that  as  the deceased had taken<br \/>\nnon-vegetarian food, it will take about four hours  for  digestion.    If  the<br \/>\ndeceased had  taken his last meals at 7.00 p.m.  &#8211; there is no direct evidence<br \/>\nas to when the deceased had his last meals; but  it  could  be  inferred  from<br \/>\nP.W.1&#8217;s  evidence  that  the  deceased could have taken his last meals at 7.00<br \/>\np.m.  &#8211; then the evidence of the doctor that the deceased would have  met  his<br \/>\nend after four hours after his meals fits in with the prosecution version that<br \/>\nthe deceased was attacked at 11.00 p.m.  We, therefore, accept the prosecution<br \/>\nversion  and hold that A.1 and A.2 inflicted injuries on the deceased at 11.00<br \/>\np.m.  and the injuries inflicted by A.1 are fatal.\n<\/p>\n<p>        14.  The learned counsel finally submits that A.2 may  be  spared,  as<br \/>\naccording  to  him,  the  materials  do not indicate that he shared the common<br \/>\nintention of A.1 in causing the death of Ganapathy.\n<\/p>\n<p>        15.  We are unable to accept the said submission.  The facts, which we<br \/>\nhave extracted above,  show  that  after  A.1  commenced  the  attack  on  the<br \/>\ndeceased, A.2  followed  him  by  cutting  him  on the neck.  On receiving the<br \/>\ninjury at the hands of A.2, the deceased, Ganapathy, fell on the  septic  tank<br \/>\nand  later, A.1 inflicted indiscriminate cuts on the neck and also severed his<br \/>\nhead.  Section 34 IPC.   lays  down  the  rule  of  joint  responsibility  for<br \/>\ncriminal  act  performed by a plurality of persons and even mere distance from<br \/>\nthe scene of crime cannot exclude the culpability of  the  crimes.    Criminal<br \/>\nsharing,  overt  or  covert, by active presence or by distant direction making<br \/>\nout a certain measure of jointness in the commission of the act is the essence<br \/>\nof Section 34 and for appreciating the ambit and scope of Section 34 IPC., the<br \/>\npreceding Sections 32 and 33 have always to be kept in mind.  Under Section 32<br \/>\nIPC.  acts include illegal omissions and Section 33 defines the &#8220;act&#8221; to  mean<br \/>\nas  well  a  series of acts as a single act and the word &#8220;omission&#8221; denotes as<br \/>\nwell a series of omissions as a single omission.  The  distinction  between  a<br \/>\n&#8220;common intention&#8221; and a &#8220;similar intention&#8221; which is real and substantial, is<br \/>\nalso not  to  be  lost  sight of.  The common intention implies a pre-arranged<br \/>\nplan but in a given case it may develop at the  spur  of  the  moment  in  the<br \/>\ncourse of  the  commission  of  the  offence.    Such  common  intention which<br \/>\ndeveloped at the spur of the moment was different from the  similar  intention<br \/>\nactuated by  a  number of persons at the same time.  The distinction between &#8221;<br \/>\ncommon intention&#8221; and &#8220;similar intention&#8221; may be fine  but  is  nonetheless  a<br \/>\nreal one  and  if  overlooked  may lead to miscarriage of justice.  To attract<br \/>\nSection 34 IPC.  two postulates are  indispensable.    (1)  The  criminal  act<br \/>\n(consisting of a series of acts) should have been done, not by one person, but<br \/>\nmore than  one  person.    (2) Doing of every such individual act cumulatively<br \/>\nresulting  in  the  commission  of  criminal  offence  should  have  been   in<br \/>\nfurtherance of the common intention of all such persons vide SURESH -vs- STATE<br \/>\nOF U.P.  (JT 2001 (3) SC 336.\n<\/p>\n<p>        16.   When  we apply the above principles to the facts of the case, it<br \/>\ncould be seen that when P.Ws.1 and 2 saw A.1 and A.2, both of them were  armed<br \/>\nwith  aruvals and A.1 inflicted the first cut on the deceased followed by A.2.<br \/>\nAfter A.2 inflicted the cut on the deceased, Ganapathy, he fell  down  on  the<br \/>\nseptic  tank,  which enabled A.1 to inflict several other cuts on the neck and<br \/>\nresulted in complete severance of his head from the body.    If  A.2  did  not<br \/>\nshare the common intention of A.1, then there was no necessity for A.2 to have<br \/>\nbeen  present at the place along with him arming himself with an aruval and he<br \/>\nalso joined A.1 in  attacking  the  deceased  by  cutting  him.    The  facts,<br \/>\ntherefore,  show  that A.2 shared the common intention of A.1 and he is liable<br \/>\nto be punished with the aid of Section 34 IPC.  The trial Judge was  justified<br \/>\nin finding  both  the  accused  guilty under Section 302 read with 34 IPC.  We<br \/>\nfind no reason to interfere with the conviction  and  sentence.    The  appeal<br \/>\ndeserves to the dismissed and it is, accordingly, dismissed.\n<\/p>\n<p>Index:Yes<br \/>\nWebsite:Yes<\/p>\n<p>bs\/<\/p>\n<p>To,\n<\/p>\n<p>1.The I Additional Sessions Judge, Tirunelveli.\n<\/p>\n<p>2.-do- through the Principal Sessions Judge, Tirunelveli.\n<\/p>\n<p>3.The Inspector of Police, Tirunelveli Bridge Police Station.\n<\/p>\n<p>4.The Superintendent, Central Prison, Palayamkottai.\n<\/p>\n<p>5.The Collector, Tirunelveli District.\n<\/p>\n<p>6.The Director General of Police, Madras.\n<\/p>\n<p>7.The Public Prosecutor, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Mariappan vs State Rep. By on 21 April, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21\/04\/2003 CORAM THE HONOURABLE MR JUSTICE N.DHINAKAR and THE HONOURABLE MR JUSTICE S.ASHOK KUMAR Criminal Appeal No. 448 of 2000 1. Mariappan, Son of Perumal. 2. Mariappan, Son of Arumugam &#8230; Appellants. -Vs- State [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-109746","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Mariappan vs State Rep. 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