Balakrishnan Nadar and Balakrishnan Nadar vs State

T. Sudanthiram, J.—The appellants are the first and second accused in SC. No. 38 of 1999 on the file of the learned Principal Sessions

Judge, Tirunelveli. A-1 stands convicted for the offence u/s 302 IPC and A-2 stands convicted for the offence u/s 302 read with 34 IPC and both

of them are sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default, each of them to undergo 3 months rigorous

imprisonment. Against the said conviction and sentence the appellants have preferred this appeal.

The case of the prosecution is that on 19.07.1997, due to the dispute between the deceased and his brother Balaiah over the enjoyment of a

common well, A-1, the son-in-law of the said Balaiah and A-2, the son of the said Balaiah, attacked the deceased with aruval and stick and

caused the instantaneous death of the deceased.

In order to prove its case, the prosecution examined 11 witnesses, marked 17 exhibits and produced 6 material objects.

The evidence let in by the prosecution in brief is as follows:

(a) P.W. 1 is the resident of Periyanayakipuram village. The deceased Sivalingam is the husband of P.W. 1. She had deposed that her husband

and his brother Balaiah were having a common well situate half a kilometre away from the village and there was a dispute between both as to the

enjoyment of the said well. Due to this, there was enmity between both the brothers and they were not in talking terms. Six months prior to the

occurrence, the said Balaiah demanded Rs. 3,000/- from the deceased for cleaning the well, for which course of action, the deceased agreed to

pay Rs. 2,000/- but, Balaiah was not amenable. Uttering the words that the deceased Sivalingam should be finished off so as to put an end to the

dispute, the said Balaiah went away. On the date of occurrence, the goat belonging to the deceased was found missing. So, the deceased, P.Ws. 1

and 3 went in search of it to the said Balaiah''s field. At that time, A-1 beat the deceased with a stick on his right shoulder. She also deposed that

the deceased attacked A-1 with an aruval which he was having in his hands. Thereafter, A2 attacked the deceased with aruval. After the

occurrence, the accused ran away from the scene of occurrence. The deceased had died on the spot. She sat near the dead body of the deceased

and was crying the whole night. On the next day morning, at about 5.00 a.m., the Sub Inspector of Police of Panagudi Police Station came to the

scene of occurrence and recorded the statement given by her and also obtained the signature of P.W. 3 in that statement. Ex. P.1 is the complaint

given by her.

(b) P.W. 3 is the son of the deceased and he had deposed about the occurrence in the same manner as spoken by P.W. 1. P.W. 4 is the resident

of the same village. He had stated that he knows both the accused and the deceased. He had also deposed that there was a dispute between the

deceased and his brother Balaiah regarding the enjoyment of a common well. The said Balaiah demanded Rs. 3,000/- for cleaning the well for

which the deceased agreed to give Rs. 2,000/-. P.W. 4 also deposed that the said Balaiah threatened the deceased in front of him saying that the

deceased should be finished off.

(c) P.W. 10, who was the Sub Inspector of Police of Pangudi Police Station during the relevant period, received an intimation from Kottar

Government Hospital on 20.7.1997 at 00.15 hours that A-1 was admitted in the hospital. He went to the hospital at 1.15 a.m., recorded the

statement of A-1 and came back to the station. He registered a case in Crime No.430 of 1997 u/s 324 IPC on the basis of the complaint given by

A-1. On the same day at 5.00 a.m., he went to the scene of occurrence for enquiry in crime NO.430 of 1997. As he went to the field of the

deceased Sivalingam, he found the dead body of the deceased. He enquired P.W. 1 in the presence of P.W. 3 and recorded her statement. Ex.

P.1 is the complaint given by her. On the basis of Ex. P.1, he registered a case in Crime NO.431 of 1997 for the offence u/s 302 IPC and

prepared Ex. P.11- the First Information Report and he sent the First Information Report to the Court through P.W. 9 the Grade-I Constable at

6.30 a.m. He also sent the copy of the First Information Report and First Information Report in Crime No. 430 of 1997 to the Inspector of Police

for further investigation.

(d) P.W. 11 was the Inspector of Police of Pangudi Police Station during the relevant period. He took up the investigation in both Crime Nos.430

and 431 of 1997. On 20.07.1997 at about 5.00 a.m. he went to the scene of occurrence and prepared Ex. P.4 - the Observation Mahazar and

Ex. P.13 - the rough sketch in the presence of witnesses. On the same day, from 7.30 a.m. to 9.30 a.m., he held inquest on the dead body of the

deceased in the presence of witnesses and panchayatdars and prepared Ex. P.14 - the Inquest Report. He sent the dead body for postmortem

examination through P.W. 7, the constable, along with a requisition under Ex. P.2 to Kottar Government Hospital.

(e) P.W. 6 who is the Assistant Medical Officer of the Kottar Government Hospital, on 19.07.1997, at 11.30 p.m., medically examined A-1, who

appeared before him and informed the doctor that he was assaulted with an aruval by a known person. Ex. P.6 is the Accident Register issued by

P.W. 6, wherein he noted the following injuries:

A cut injury of about 3"" x 3"" x 1"" is seen on the middle left forearm.

A cut injury of about 21/2"" x 1"" x 1"" seen on the left shoulder.

He also opined that the injuries are grievous in nature.

(f) P.W. 2, who was working as Assistant Medical Officer at Radhapuram Government Hospital, received Ex. P.2, the requisition from the

Inspector of Police and held autopsy on the dead body of the deceased at 12.00 p.m. On 20.07.1997. Ex. P.3 is the Postmortem Certificate

issued by him, wherein he has noted the following injuries:

Injuries:

A lacerated injury 2"" x 1""x Bone Depth on the anterior aspect of left arm, running side to side. On dissection, humerus underneath is fractured

on the upper 1/3rd with heamatoma around. Two small bone pieces are found separately.

2 A lacerated injury 4"" x 2"" Bone depth just above the right eyebrow, running parallel to it. On dissection, right frontal bone is fractured and the

fractured bone is multiple.

Another lacerated injury 4"" x 2"" x Bone depth on right forehead close to origin of hair, on running side to side. On dissection, there is Sub-

cutaneous haematoma over parietal regions on both sides. Right frontal bone is fractured and fracture bone is multiple, one of which extended

laterally to left temporal bone. On removal of skull bone, there is sub arachnoid haemorrhage 3"" diameter, occupying left parietal lobe of Brain.

A cut injury 5"" x 3"" x 1"" running from the pinna of left ear, to a point on the middle of upper border of back on left side-muscle deep.

There are two lacerated injuries, each measuring 2"" x 1"" x Bone epth situating one below the other, on the right side chin, deep to it (NC)

margin on the right side a fractured in two places along with teeth.

A diffused swelling of middle of right arm on explroation, right humerus is fractured in the upper 1/3rd with haematoma around.

A cut injury 2"" x 1"" x 1/2"" on the lower and posterior aspect of right parietal region of scalp-muscle deep.

Another cut injury 2"" x 1"" x 1/4"" situated on right parietal region of scalp 1"" in front of injury No. 7.

A lacerate injury 3"" x 1"" x 1/2"" on the posterior part of inter-parietal region of scalp muscle deep.

He also opined that the deceased would appear to have died out of shock and haemorrhage due to injury No. 3, involving the brain.

(g) P.W. 11, the Inspector of Police, continued the investigation. At about 9.40 a.m. on 20.90.1997, he recovered M.O.1 - the blood stained

earth, M.O.2 - sample earth, M.O.5 - blood stained stick and M.O.3-blood stained cloth under the cover of Athakshi, Ex. P.5. He also examined

the witnesses and recorded their statements. On the same day, at about 5.15 p.m., he arrested A-2 near Kavalkinaru in the presence of witnesses

and A-2 came forward to give a confessional statement, the admissible part of which is marked as Ex. P.15 At about 6.15 p.m., on the basis of

the confessional statement given by A-2, P.W. 11 recovered M.O.6 - aruval under the cover of Athakshi - Ex. P.16. The accused were sent for

judicial remand. He also took up the investigation in Crime No. 430 of 1997 and since the accused had died, he referred the case as closed. The

Investigating Officer also examined the doctors and recorded their statements. The material objects recovered from the scene of occurrence and

from the dead body of the deceased and the material object recovered pursuant to the confessional statement given by A-2, all were subjected to

chemical analysis under the requistion, Ex. P.7, which resulted in two reports, viz., Ex. P.9 - the Chemical Analyst Report and Ex. P.10-Serologist

Report. After completing his invetigation, he laid the final report against the accused.

The accused were questioned u/s 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses

against them. They denied as false. No defence witness was examined.

Mr. G.R. Edmund, learned Counsel for the appellants contended that P.Ws. 1 and 3 who are related to the deceased have given contradictory

versions and they could not have been the eyewitnesses to the occurrence. It was also submitted that the occurrence could not have taken place in

the manner as spoken by the prosecution and A-1 has sustained grievous injury and it has not been explained by the prosecution properly. The

version of P.W. 3 with regard to the occurrence is also not acceptable. The learned Counsel for the appellants also submitted that there was an

enormous delay in preferring Ex. P.1 - the complaint, to the police by P.W. 1. The First Information Report registered on the basis of the

complaint given by A-1 is earlier in point of time which also narrates about the attack on the deceased and therefore, the present First Information

Report based on the complaint given by P.W. 1 is not admissible. Learned Counsel also submitted that the case registered in Crime No. 430 of

1997 on the basis of the complaint given by A-1 was closed only for the reason that since the deceased had died, the case was closed and it was

not referred to as ""Mistake of Fact"". The learned Counsel for the appellants also submitted that as per the materials available on record in the case,

the offence would not fall u/s 302 IPC.

The learned Additional Public Prosecutor was also heard with regard to the contentions raised by the learned Counsel for the appellants.

The learned Additional Public Prosecutor had submitted that the evidence of P.W. 1 is corroborated by the evidence of P.W. 3 and also by the

medical evidence. The delay in preferring the complaint to the police by P.W. 1 is explained by her that as the occurrence has taken place in the

night, she was sitting at the scene of occurrence itself and crying and only on the next day at 5.00 a.m., when the Sub Inspector of Police came to

the scene of occurrence, she gave the complaint to him. The injury on A-1 is explained by the evidence of P.W. 3 that when the deceased was

attacked by A-1 with the stick on his head, the deceased had attacked A-1 with aruval on his head.

We have carefully gone through all the evidence and materials available in this case and the rival submissions made by both parties.

P.Ws. 1 and 3 are the eyewitnesses to the occurrence. P.W. 1 is the wife of the deceased and P.W. 3 is the son of the deceased. The

deceased Sivalingam is the younger brother of Balaiah and A-1 is the son-in-law and A-2 is the son of the said Balaiah. There was a friction over

the enjoyment of the common well and both the deceased and the said Balaiah were inmically disposed to each other and were not in talking

terms. A suit was also filed in this respect which is admitted by P.W. 1. Therefore, the dispute between the brothers may be the motive for the

either side. With regard to the occurrence, though P.W. 1 says that at 10.00 p.m. on 19.07.1997, as the goats were grazing in the field, the

deceased tried to bring the goats back and while he was doing so, he was attacked by A-1 with a stick on the right shoulder. A-2 had attacked

the deceased with the aruval several times. P.W. 3 had stated that while A-1 attacked the deceased with stick on his head, the deceased had cut

A-1 with the aruval which he was having and thereafter, A-2 attacked the deceased with aruval several times. P.W. 1 had not spoken about the

deceased attacking A-1 on his head with aruval, though P.W. 3 had stated that after the deceased was being attacked on his head with stick by A-

1, the deceased had attacked A-1 with aruval and in turn A-2 attacked the deceased with the aruval.

The Investigating Officer did not seize any weapon from the scene of occurrence. Only one aruval was seized by the Investigating Officer on

the basis of the confessional statement given by A-2. Even after the occurrence, either P.W. 1 or P.W. 3 have not chosen to move away from the

scene of occurrence and to go and inform anyone about the occurrence or to the police. This conduct of P.Ws. 1 and 3 throws considerable doubt

with regard to their evidence. Admittedly, the complaint, Ex. P.1 was given by P.W. 1 only after the arrival of P.W. 10, the Sub Inspector of

Police to the scene of occurrence. P.W. 10, on getting intimation from the hospital that A-1 is admitted, he had gone to the hospital at 1.15 a.m.

and received the complaint from him and registered a case in Crime NO.430 of 1997 u/s 324 IPC. P.W. 10 had further stated that he had gone to

the scene of occurrence on 20.07.1997 at 5.00 a.m. only to investigate on the basis of the complaint given by A-1. On perusal of Ex. P.12 - the

complaint given by A-1, it is clear that the facts of A-1 being attacked by the deceased with aruval and thereafter, A-2 snatching the aruval from

the deceased and attacking the deceased is being mentioned. As Ex. P.12 reveals the cognizable offence against the deceased and also against A-

2, the registration of Ex. P.11, the First Information Report in Crime No. 431 of 1997 on the basis of the complaint given by P.W. 1 raises a

question whether the same is admissible or not. A-1 who had sustained injury in the hands of the deceased had gone to the hospital at 11.30 p.m.

itself and he had stated to the doctor that he has been assaulted with aruval at 10.00 p.m. by a known person which is also recorded in Ex. P.6 -

the Accident Register of A-1. The cut injury on the middle forearm and a cut injury on the left shoulder sustained by A-1 shows that A-1 had tried

to prevent the attack on him. From the above said facts, it is difficult to accept the evidence of P.Ws. 1 and 3 in toto. It is clear that P.W. 1 had

given evidence suppressing certain facts with regard to the occurrence.

Keeping in mind that P.Ws. 1 and 3 are not coming with full true facts, the criminal liability of the appellants is to be analysed and decided.

Though P.W. 1 had stated that A-1 had attacked the deceased with a stick on the right shoulder, in Ex. P.1, it is stated that attack by A-1 with the

stick fell on the left hand. P.W. 3 had stated that A-1 had attacked the deceased with a stick on his head which is also contradictory. P.W. 3 also

stated that the goats were in the field of his Senior Paternal uncle and as they went to that field, the occurrence had taken place. Therefore, this

throws considerable doubt with regard to the act attributed to A-1 in respect of attacking the deceased. Further, A-1 is injured and P.W. 1 has

not spoken anything about the injury sustained by A-1. The benefit of doubt is to be given to A-1.

As far as A-2 is concerned, even according to the prosecution, A-2 had not attacked the deceased first. It was only after A-1 was attacked

by the deceased with an aruval, the deceased was attacked by A-2. According to P.W. 3, though the deceased was having an aruval and the

accused was also having aruval, according to the Investigating Officer, only one aruval involved in the occurrence was seized. On perusal of Ex.

P.12, the earliest First Information Report in this case, given by A1, it is stated that after the deceased attacked A-1 with the aruval, A-2 had

snatched that aruval from the deceased and thereafter, he started attacking the deceased. Therefore, in view of Ex. P.12, it cannot be definitely

said that the accused are the aggressors.

Though the accused had totally denied their involvement during the trial, the fact is established that the deceased had been attacked by A-2

and he had been done to death. The only question is how far A-2 is liable for his act. It is true that the Court cannot make out a third case and it is

only to accept either the prosecution case of the defence version. Here,though the defence version is total denial, but at the earliest stage, the

defence version is brought out in Ex. P.12. Apart from that, the evidence of P.W. 3 is also that only after A-1 was attacked by the deceased with

an aruval, A-2 had attacked the deceased. Either way, as rightly submitted by the learned Counsel for the appellants that A-2 had acted on a

grave and sudden provocation is to be accepted or even as per Ex. P.12, after A1 was attacked, by snatching the aruval from the hands of the

deceased, by attacking the deceased, A-2 had acted exceeding the right of defence. We therefore hold the act of A-2 comes under the exception

(1) or (2) of Section 300 IPC and therefore, alter the conviction of A-2 from Section 302 read with 34 IPC to one u/s 304 (Part-I) IPC and

sentence him to undergo seven years rigorous imprisonment instead of life imprisonment.

We therefore, set aside the conviction and sentence imposed by the Trial Court on the appellant/A-1 u/s 302 IPC and he is acquitted of the

charge. We convict the appellant/A-2 u/s 304 (Part I) IPC and sentence him to undergo seven years rigorous imprisonment. The sentence already

undergone by A-2 shall be given set off.

In the result, the criminal appeal in respect of A-1 is allowed and the criminal appeal in respect of A-2 is modified and dismissed.

It is reported that appellants/accused are on bail. The Sessions Judge concerned is directed to take steps to secure the presence of A-2 and

commit him in prison to undergo the remaining period of sentence. In respect of A1, since he is acquitted, the bail bond, if any, executed by him,

shall stand terminated.