Ayyapazham and 2 Others vs State

Krishnaswamy Reddy, J.—There are two appeals in this case, namely. Cr1. A. No. 181 of 1971 filed by the accused and Crl. Appeal No. 267 of 1971 filed by the learned public prosecutor. The three accused were charged and tried u/s 341, Indian Penal Code, for having wrongfully restrained one Thirumal and also u/s 302 read with S. 34,I.P.C. for having committed the murder of the said Thirumal. But ultimately, the first accused was convicted u/s 341,I.P.C and sentenced to simple imprisonment for one month and accused 2 and 3 were convicted, each u/s 304, Part I, I.P.C. and sentenced to rigorous imprisonment for a period of five years. Crl. Appeal No. 181 of 1971 has been preferred by the three accused against their convictions and sentences. The learned Public Prosecutor has filed Crl. Appeal No. 267 of 1971 against the order of the acquittal of the accused u/s 302. read with S. 34, I. P. C. As both the appeals arise out of the same judgment, they are disposed of together.

The prosecution case is simple. P.W. 1 Ponnambalam is a taxi driver. He has got a car stand at Kottaram. On the date of the occurrence (17th August 1970) at about 10-30 a.m. he went to the house of Thirumal, the deceased, who was living near Agasthiar koil in Vadukanpattu, for the purpose of purchasing a carrier from him. P.W. 2 Thangamoni, who is also a co-driver accompanied P.W. 1.

They stopped the car near Agasthiarkoii and proceeded to the house of the deceased, which is about 200 fit. away from the temple. When P.W. 1 and P.W. 2 were returning from the house of Thirumal, they met one Chellakantham, sister of the accused and two other women by name Annakili and Thankam. It is stated that the deceased Thirumal made overtures to Chellakantham and characterised her as a prostitute who had immoral connection with her brother. Chellakantham retorted by saying that if Thirumal spoke like that she would tell her brothers; Thirumal chased Chellakantham. However, she escaped and went and informed her brothers about the deceased Thirumal having abused her. P.W.1, P.W. 2, P, W; 2 and the deceased went in the car driven by P.W. 1. They proceeded to Kottaram-Agasteeswaram road and reached Malayanvilai. They took food in the house of P.W. 1. Thereafter, at about 11-30 a.m. P.W. 1, P.W. 2 and the deceased Thirumal were returning by the same car to the car stand at Kottaram. When the car was near the shop of one Madhusoodhanaperumal, P.W. 4, which is near the junction of the road leading from Agasteeswaram to Kottaram, all the three accused came and asked P.W. 1 to stop the car by showing their hands. P.W. 1 stopped the car. The deceased was stated in the front seat, while P.W. 2 was seated in the back seat. After the car was stopped, the first accused opened the front door and dragged out Thirumal and asked Thirumal as to why he abused his sister calling her a prostitute saying"

the first accused asked accused 2 and 3 to kill Thirumal. The second accused took a stone of the size of a mango, (M.O. 1) and hit the deceased on the bead. The third accused hit the deceased with another stone (M.O. 2) on the back below the right ear. At that time, P.W. 3, Rajappa, a tailor, who was standing in front of the shop of P.W. 4, Madhusoodhana Perumal, came and intervened. The accused ran away. P.W. 3 brought water and gave it to P.W. 1. P.W. 1 washed the face of the deceased and poured water into his mouth. Water could not get in. P.W. 1 and P.W. 2 took the deceased in the car to the Headquarter''s Hospital at Nagercoil. On the way the deceased died. Act about 2 p.m., P.W. 5, Dr. Swarnalatha, Civil Assistant Surgeon attached to the Nagercoil Hospital found the deceased dead. P.W. 1 gave the complaint Ex. P. 1 to the Assistant Sub-Inspector of Police at the Kottar Police Station. P.W. 12, Natarajan, Inspector of Police, held inquest over the body of the deceased at about 5-30 p.m. and examined P. Ws. 1 and 2 at the inquest. P.W. 6, Dr. Balasubramaniam, Civil Assistant Surgeon attached to the Government Headquarter''s Hospital at Nagercoil conducted the autopsy on the dead body of the deceased and found the following injuries, viz., (1) a lacerated wound 1" X skin deep on the middle of the secipital region; (2) a lacerated "V" shaped wound, skin deep, on the centre of parietal eminences; and (3) a contusion about 1" in diameter behind the right ear. On dissection of the above three injuries, P. W. 6 found haematoma about 1" in diameter and on opening the dura matter, he found blood clotted on the surface of the brain. On removing the blood clot, he found laceration of the right frontal lobe. He was of the opinion that the deceased would have died of laceration of brain involving the frontal lobes on both sides producing intracranial haemorrhage and shock. He was also of the opinion that injuries Nos. 1 and 2 could have been caused by hitting with a weapon like M. Order 1.

The Appellants, when examined, denied the offence and stated that the case was foisted on them. They did not examine any defence witnesses on their behalf.

5.P. Ws. 1 to 4 were examined as eye witnesses to the occurrence. P. W. 3, Rajappa, who supported the prosecution case in the committal court, was treated as hostile in the Sessions Court, and his evidence in the committal court has been marked u/s 288, Crl. P. C. P. W. 4 also turned hostile and his evidence in the committal court was not marked u/s 288, Criminal Procedure Code, though portions of his evidence, namely, "Then I heard a noise, I came out of my shop," and "I saw these three accused leaving from the place where Thirumal was standing. The accumed went towards their house. At that time, P. Ws. 1 to 3 were there," marked as Exhibits P. 6 and P. 7 respectively. Even in the committal court, P. W. 4 did not appear to be an eye witness to the occurrence. We have now the direct evidence of P. W. 1 and P. W. 2 and also the evidence of P. W. 3 marked u/s 288, Crl. P. C. P. Ws. 1 and 2 were examined at the inquest. P. W. 1 is a taxi driver and P. W, 2 also is a co-driver. In all probability, P. Ws. 1 and 2 must have been going in the car along with the deceased who was dragged out from the car by the first accused. P. W. 2 is an independent witness. Though P. W. 1 appears to be a friend of the deceased, there is no reason for him to implicate the accused falsely. The occurrence took place at about 11-30 a.m. P. W. 3, Rajappa, who is a tailor was standing near the scene of occurrence and he must have witnessed the occurrence. We accept the direct evidence of P. Ws. 1 and 2, and also the evidence of P.W. 3 marked u/s 288, Cr. P. C. as P.W. 3 Rajappa, in our opinion, is a competent witness to speak to the occurrence.

We have given our anxious consideration as to what offences the accused had committed by the overt act attributed to them by the prosecution witnesses. It appears from the evidence that the sifter of the accused went and informed the accused about the deceased Thirumal having abused her calling her a prostitute. The first accused had come with his brothers accused 2 and 3, just to ask the deceased as to why he abused their sister earlier calling her a prostitute. It might be that they had come there even to thrash the deceased. There is no indication at all from the evidence that the accused had come there with the object of beating the deceased severely or killing him. If they had pre-meditation or any such intention, they would have come with some weapons in their hands. It is the case of P. W. 1 that when the car was going, the three accused came there and simply by showing their hands asked P. W. 1 to stop the car. At that time it cannot be said that the accused had the intention of beating the deceased. After the deceased was dragged out for being questioned as to why he abused their sister earlier, accused 2 and 3 are said to have hit the deceased with stones. The deceased was drunk at that time. After he was dragged out, (the deceased) must have provoked the accused by retorting or reiteration as to what he had said earlier about the sister of the accused. In those circumstances, it cannot be said that the accused had the intention to kill the deceased, much less the common intention of killing the deceased. They would not have had the common intention of beating him. At the spur of the moment, when the deceased was dragged out and the first accused questioned him, accused 2 and 3 took two small stones which were very near the car and hit the deceased with the stones. Therefore, the accused would be liable only for the acts committed by each of them.

The first accused has been convicted u/s 341, I. P. C. for having wrongfully restrained the deceased by dragging him out from the car. We do not think that in the circumstances, the first accused can be said to have committed any offence. The first accused might have dragged the deceased out for the purpose of questioning him. There is no material to show that the first accused did anything further after the deceased was dragged out from the car, except that accused 2 and 3 hit the deceased with stones. The conviction of the first accused, therefore, u/s 341, Indian Penal Code, cannot be sustained. He is acquitted of the offence u/s 341, Indian Penal Code.

So far as accused 2 and 3 are concerned, we accept the evidence of P. Ws. 1, 2 and 3 that each of them took a stone and hit the deceased with the stone. Though the injuries, in the opinion of the doctor, were in the ordinary course of nature likely to cause death, we cannot say that each of them had an intention to kill the deceased or had knowledge that such injury which was inflicted on the deceased by them was likely to cause death. We have already observed that the deceased was drunk. There was no fracture to the skull. There was only internal haemorrhage. In those circumstances, we are of the view that the accused 2 and 3 would be liable only u/s 323, IPC, as it is not known which of the injuries inflicted by them was grievous. We, therefore, alter the convictions of accused 2 and 3 u/s 334, part I, Indian Penal Code, into one u/s 323, I P. C. and sentence each of them to undergo rigorous imprisonment for one year.

On the view we have taken, the appeal filed by the learned Public Prosecutor must fail.

In the result, the first acevsed is acquitted of the offence u/s 341, I.P.C. The convictions of accused 2 and 3 u/s 304, Part I, I. P. C. are altered into one u/s 323, I.P.C. and they are sentenced to rigorous imprisonment for one year each. Crl. Appeal No. 181 of 1971 is allowed so far as it relates to the first accused and dismissed) except for the modification with regard to the convictions and sentences as regards accused 2 and 3 mentioned above. Criminal Appeal No. 267 of 1971 is dismissed.