Eeyakkara Palani @ Palani vs State, by Inspector of Police

M. Karpagavinayagam, J.—A-2 Palani, the appellant herein along with A-1 Thirunavukkarasu was tried for the offences under Sections

302 and 324 I.P.C. Ultimately, they were convicted by the trial Court for the said offences. Though A-1 was convicted for the offences under

Sections 302 and 324 I.P.C. by the trial Court, he has not chosen to file appeal, A-2 Palani alone has filed this appeal, challenging his conviction

for the offence u/s 302 I.P.C.

Brief facts of the case are as follows:-

(a) Deceased Chandrasekaran is the younger brother of A-1 Thirunavukkarasu. A-2 Palani and A-3 Jambu are the associates of A-1. They

involved in illegal activities like pocket-picking, committing theft in the house, etc. Deceased Chandrasekaran, the younger brother of A-1 used to

advise A-1 not to move with the other accused who are bad elements. However, without heeding to the advice of the deceased, A-1 continued to

have friendship with the other accused and indulged in illegal activities.

(b) On 29-9-1996 at about 7 p.m., the deceased and his friend P.W.1 Manivannan were standing in front of Sakuntala Canteen,

Kalingarayanpalayam and were talking with each other. At that point of time, he noticed A-1 coming in that direction along with A-2 and A-3. The

deceased advised A-1 to dissociate with the other accused. In that process, wordy quarrel ensued between A-1 and the deceased. Ultimately, the

deceased had to beat A-1 with his hands. However, P.W.1 Manivannan who was present at the scene along with the deceased, pacified both of

them and asked the accused persons to go away. On being aggrieved over this incident, all the three accused warned the deceased that they would

come again to teach a lesson to him.

(c) Few hours later, i.e. at about 10 p.m., P.W.1 and the deceased went to a tea shop belonging to P.W.2 Arunachalam and took Tiffin. After

finishing their food, they came out. At that point of time, A-1 to A-3 came to the scene and started quarrelling with the deceased. For few minutes,

wordy quarrel between A-1 to A-3 and the deceased continued. A-1 with arrival, gave a cut on the left side neck of the deceased; A-3 with

arrival, gave a cut on the left side wrist of the deceased and A-2 with arrival, inflicted a cut on the left side arm of the deceased.

(d) On receipt of injuries, the deceased began to run from the scene. The deceased who was not able to run continuously, fell down on the road.

All the three accused chased him. In the meantime, P.W.1 in order to save the deceased, went near him. Pushing P.W.1 aside, A-1 gave a cut on

the neck of the deceased. When P.W.1 got up and prevented A-1 from cutting further, he also sustained injuries on his right hand thumb. A-3 took

a button knife from his waist and stabbed on the stomach and chest of the deceased indiscriminately. The deceased died at the spot. When the

crowd gathered there, the accused ran away from the scene of occurrence with their weapons (M.O.4 & M.O.5 series).

(e) P.W.1 took the body of the deceased from the road side and brought to the opposite side of the road and placed there. Thereafter, he went to

his friend P.W.6 Balan''s house and informed about the incident. P.W.6 came to the scene of occurrence. Then, both of them went to the Chithode

Police Station at about 2 a.m. P.W.12 Head Constable received Ex.P-1 written complaint and registered a case for the offences under Sections

302 and 324 I.P.C. Ex.P-13 is the F.I.R.

(f) Since P.W.1 suffered injuries on his right thumb, he was sent to Doctor for treatment. P.W.10 Dr.Gnanasekaran gave treatment to P.W.1 and

issued Ex.P-11 wound certificate.

(g) P.W.15 Inspector of Police in-charge, on receipt of the message, went to the scene of occurrence, prepared Ex.P-2 observation mahazar and

drew Ex.P-19 rough sketch. He also conducted inquest over the body of the deceased between 6 a.m. and 10 a.m. on 30-9-1996. P.Ws.1 to 4

and 6 were examined. Ex.P-18 is the inquest report. Then, the dead body was sent for post-mortem.

(h) P.W.9 Doctor, who conducted autopsy on 30-9-1996 at about 1.30 p.m., found as many as 15 injuries on the deceased. He opined that the

deceased would appear to have died of shock and hemorrhage due to multiple stab injuries sustained. Ex.P-10 is the post-mortem certificate.

(i) P.W.15 Inspector of Police took steps to arrest the accused. But however, they were not traceable. P.W.21, the regular Inspector of Police

took up further investigation on 2-10-1996. On 3-10-1996 at about 7 a.m., he arrested all the accused and on the confession of A-1, the

admissible portion of which is Ex.P-5, M.O.4 button knife and M.O.5 series (three arrivals) were recovered under Ex.P-6 mahazar. A-2 and A-3

were found with injuries when they were arrested. So, they were sent to P.W.8 Doctor for treatment. P.W.8 Doctor, after examining A-3 and A-

2, issued Ex.P-7 and Ex.P-8 accident registers respectively. Thereafter, they were sent for judicial remand.

(j) P.W.21 continued the investigation and arranged for sending the material objects for chemical examination. After completion of the

investigation, he filed the charge sheet against A-1 and A-2 for the offences under Sections 302 and 324 and 34 I.P.C. Even before the charge

was framed, A-3 died. Therefore, the charge against him was abated. The trial went on as against A-1 and A-2.

During the course of trial, P.Ws.1 to 20 were examined, Exs.P-1 to P-19 were filed and M.Os.1 to 10 were marked.

When the accused were questioned u/s 313 Cr.P.C. with reference to the incriminating materials placed before the Court, they pleaded that

they had not committed any offence and they were arrested by the Police from their respective houses.

The trial Court, on an evaluation of the evidence available on record, convicted A-1 for the offence u/s 324 I.P.C. and sentenced him to

undergo six months rigorous imprisonment and convicted for the offence u/s 302 I.P.C. and sentenced him to undergo life imprisonment. A-2 was

convicted for the offence u/s 302 I.P.C. and sentenced to undergo life imprisonment. As indicated above, A-1 has not filed any appeal. The

present appeal has been filed by A-2 alone.

Mr.Manokaran, learned counsel for the appellant/A-2 would take us through the entire evidence and contend the following:-

(i) Though there are several eye-witnesses and the witnesses to whom the extra-judicial confessions are stated to have been made, except P.W.1,

all the other witnesses turned hostile. Even the evidence of P.W.1, the sole eye-witness does not inspire confidence, as the version given by

P.W.1, while comparing Ex.P-1 and the evidence of P.W.1, would suffer from infirmities, as there are various discrepancies. According to P.W.1,

he went along with P.W.6 to the police station and gave a complaint. But, in the cross-examination, he stated that P.W.12 Head Constable wrote

the complaint and obtained a signature from P.W.1. On the other hand, P.W.6 would state in the cross-examination that after the occurrence was

over, P.W.1 and P.W.6 were present in the scene of occurrence and at that time, the Police came to the spot and on the dictation of the Inspector

of Police, complaint was written by P.W.6 and the signature was obtained from P.W.1 by the Police. As such, there is not only contradiction, but

also that one out of two complaints has been suppressed.

(ii) According to P.W.1, the deceased had his food just prior to the time of occurrence. But, P.W.9 Doctor who conducted post-mortem would

state that the stomach contained digested food particles.

(iii) The evidence relating to the arrest and recovery is doubtful. Even according to the prosecution, the weapons were recovered from running

water. Under those circumstances, it cannot be said that the weapons M.O.5 series contained human blood.

(iv) At any rate, it cannot be stated that the common intention has been shared by all the accused, especially when A-2 gave only one cut on the

left hand. Admittedly, after the deceased fell down on the road, he did not choose to attack the deceased. As such, he is liable to be convicted for

his individual act and not u/s 302 I.P.C . There is no material to show that the act has been committed by all the accused in pursuance of the

common intention.

In reply to the above submissions, Mr.E.Raja, learned Additional Public Prosecutor would contend that though some of the witnesses turned

hostile, the case of the prosecution cannot be rejected on that ground, especially when the evidence of the sole eye-witness is reliable and can be

acted upon. He would further submit that there is only one complaint, which was received by P.W.12 Head Constable and the same has been

registered at 2 a.m. and the documents relating to that were received by the Magistrate at 5 a.m. on the same day. Therefore, there is no

suppression of any complaint. He would further contend that the reasoning given by the trial Court for imposing the conviction are perfectly

justified. As such, no interference is called for. It is also pointed out that A-2 cannot be convicted for Section 302 I.P.C. simplicities, since he has

caused only some injuries on the deceased. Both the accused should have been convicted for the offence u/s 302 read with 34 I.P.C. Therefore,

this Court can invoke Section 34 I.P.C. and alter the conviction into one u/s 302 read with 34 I.P.C. against both the accused.

We have heard the rival contentions urged by learned counsel on either side and also gone through the records.

According to the prosecution, A-1, the elder brother of the deceased, on several occasions, was advised by the deceased not to have any

friendship with A-2 and A-3, who are all regular offenders in picking pockets and committing theft and despite that advice and warning, A-1

continued to move with A-2 and A-3 and indulged themselves in the illegal activities. P.W.1 Manivannan is the friend of the deceased. On the date

of occurrence, at about 7 p.m., they were standing in front of the Sakuntala Canteen and conversing with each other. At that time, they found all

the accused coming together on the road. On noticing that, the deceased again warned A-1 as to why he continued to have friendship with bad

people. This time, A-1 asked the deceased not to give such advice to him. The deceased then picked up quarrel with A-1. At the end of the

quarrel, the deceased beat A-1 with his hands. On getting infuriated, all the three accused challenged that they would come again to teach a lesson

to him. Thereafter, at about 10 O''clock, both P.W.1 and the deceased went to tea shop of P.W.2 Arunachalam and took Tiffin. After finishing the

same, they came out and were talking together. It was at about 10.15 p.m. At that point of time, all the three accused came near the deceased and

picked up quarrel, referring to the earlier incident. Within a few minutes, A-1 took out an arrival and gave a cut on the left neck of the deceased.

A-2 and A-3 also, with arrivals, gave cut on the left hand. On receipt of these injuries, the deceased began to run from the scene. However, unable

to move further due to the injuries, he fell down on the road. The accused, on seeing that the deceased fell down, came running towards him and

again attacked him. This time, P.W.1 attempted to prevent A-1 from attacking the deceased further. Unfortunately, P.W.1, while warding off the

same, sustained injury on the right thumb. Then, all the accused ran away. Thereafter, P.W.1 went to the house of P.W.6, who is his friend and

along with him, he went to the police station and wrote a complaint with the help of P.W.6 and handed over the same to P.W.12 Head Constable.

This aspect of evidence has been spoken to by P.W.1, both in Ex.P-1 and in his deposition. Though P.W.6 is not the eye-witness, he

corroborated the version of P.W.1 to the extent that immediately after the occurrence was over, P.W.1 came to his house and informed him about

the incident and then took him to the police station where P.W.6 wrote the complaint and handed over the same to P.W.12 Head Constable.

On the strength of two decisions in Toran Singh Vs. State of Madhya Pradesh, and Mathura Yadav @ Mathura Mahato and Others Vs. State

of Bihar, , it is pointed out by learned counsel for the appellant that the evidence of sole interested witness cannot be fully relied upon to convict the

accused, especially when there are various infirmities.

As noted above, P.W.1 stated in the cross-examination that the complaint was reduced into writing by P.W.12 when P.W.1 stated and the

same was signed by P.W.1, but P.W.6 would state that the complaint was obtained at the spot by the police. It is true, as correctly pointed out by

learned counsel for the appellant, that there is variation with reference to the place where the complaint was given. But, it is noticed from the

evidence of P.W.12 that the written complaint was given by P.W.1, accompanied by P.W.6 and the same was received by P.W.12 at about 2

a.m., who registered the same and sent the F.I.R. to the Judicial Magistrate, who in turn received it at about 5 a.m. on the same day, i.e. 30-9-

1996. With reference to this aspect of evidence, it is spoken to by P.W.12. There was no cross-examination by the defense counsel.

As correctly pointed out by learned counsel for the appellant, P.W.1 would state that P.W.12 Head Constable wrote the complaint. But,

P.W.6 would state that he only wrote it. A perusal of Ex.P-1 and the evidence of P.W.12 would clearly indicate that the author of the complaint is

P.W.1 and the same was written by P.W.6 and P.W.12 received the said complaint and sent the same to the Judicial Magistrate. Though P.W.6

would state in the cross-examination that the complaint was obtained at the spot, no importance could be attached to that version, since in our

view, the said discrepancy would not go to the root of the matter so long as we rely upon the evidence of P.W.1, the injured eye-witness.

It is pointed out that P.W.1 is the friend of the deceased and therefore, his evidence cannot be acted upon. But, this contention, in our view,

cannot be sustained for the reason that P.W.1 may be the friend of the deceased, but there is nothing to show that he was inimical towards the

accused. As a matter of fact, P.W.1, the injured eye-witness was sent to P.W.10 Doctor immediately at about 5.45 a.m. on 30-9-1996. He

stated to P.W.10 Doctor, as evident from the deposition of P.W.10 Doctor and Ex.P-11 wound certificate, he was attacked by one known

person at about 10.15 p.m. at Kalingarayanpalayam on 29-9-1996 with a veecharuval.

These materials would be a corroborative factor to the case of the prosecution as projected by P.W.1. On reading of the evidence of P.W.1

as a whole, it is obvious that he is a truthful witness, who was prompt in giving a complaint to the police station with the assistance of P.W.6. The

names of the accused persons and the part played by them have been clearly mentioned in Ex.P-1 complaint, which has been received by the

Judicial Magistrate at 5 a.m. on 30-9-1996. P.W.1 has been examined during the course of inquest by P.W.15 Inspector of Police. His evidence

has been corroborated by the medical testimony tendered by P.W.9 Doctor who issued Ex.P-10 post-mortem certificate, in which 15 injuries

have been referred to. Under those circumstances, we are unable to persuade ourselves to accept the submission made by learned counsel for the

appellant that P.W.1''s evidence is unreliable.

Furthermore, it is to be noticed that A-2 and A-3 were found with injuries when they were arrested on 3-10-1996. P.W.21 investigating

officer sent them to P.W.8 Doctor for giving treatment. To P.W.8, both the accused stated that they sustained injuries at Kalingarayanpalayam on

29-9-1996 at about 10.15 p.m. It may be true that these injuries have not been explained by the prosecution. But, it is noticed that the injuries

were found to be simple. Thus, it is clear that the prosecution has not suppressed anything. On the other hand, the accused persons were sent for

medical examination and P.W.8 Doctor, who gave treatment, issued Exs.P-7 and P-8 accident registers. While the accused were questioned with

reference to the statement of P.W.8 Doctor, the same has not been denied. Therefore, the evidence of P.W.1 which is corroborated by the

evidence of P.W.6 and P.W.9, the post-mortem Doctor, would clearly establish that all the three accused attacked the deceased, with the result,

the deceased died.

Lastly, it was contended that the appellant/A-2 is liable to be convicted only for his individual act for having caused the death of the deceased,

as there is no material to show that the act was committed in pursuance of the common intention. This submission also, in our view, lacks

substance. According to the prosecution, the first occurrence in which the deceased attacked A-1 in the presence of A-2 and A-3, took place at

about 7 p.m. in front of Sakuntala Canteen. This has been spoken to by P.W.1. At that time itself, they made a challenge that they would come

again to teach a lesson to him. Accordingly, at about 10.15 p.m., all the three came with the weapons and began to attack. A-1 gave a cut on the

neck and the other accused inflicted injuries on the left hand of the deceased. The deceased began to run. But the accused, without satisfying that,

ran after him. After going for some distance, the deceased fell down. Then, the other accused also gave a cut and stabbed once on the deceased,

with the result, the deceased died instantaneously. This shows that these persons out of taking revenge over the earlier incident that took place at 7

p.m., came with the common intention to cause the death of the deceased. Therefore, the appellant/A-2 is not liable to be convicted for his

individual acts. Of course, it is true that the charge has been framed only for the offence u/s 302 IPC simpliciter against both A-1 and A-2. This is

wrong. Therefore, it would be appropriate to modify the conviction from Section 302 I.P.C. to Section 302 read with 34 I.P.C.

Accordingly, the conviction imposed on the appellant/A-2 and A-1 u/s 302 I.P.C. is modified into one u/s 302 read with 34 I.P.C. and both

A-1 and A-2 are sentenced to undergo life imprisonment. The appeal has no merits and the same is dismissed.