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Judgment
N. Dhinakar, J.—The Appellants, two in number are accused in Sessions Case No. 289/1988 on the file of the II Additional Sessions Judge. Tirunelveli. They were tried before the learned Sessions Judge, Tirunelveli for a charge framed u/s 302 I.P.C. read with Section 34 I.P.C. on an allegation that at 10.00 a.m. on 27.12.87 they, in furtherance of the common intention, caused the death of Arunachala Nadar (a) Karuthappandi by cutting him on the neck and shoulder. The learned Sessions Judge sentenced them to imprisonment for life Hence the appeal.
In this judgment the Appellants 1 and 2 will be referred as A1 to A2 for the sake of convenience.
The case of the prosecution can be briefly summarised as follows: P.W.1 is the wife of the deceased and P.W.2 is the daughter. P.W.4 is the neighbour of the deceased. They were residents of Kulalankarisal. The accused also were residents of the same village. A1 and A2 are brothers. A civil dispute was pending for more than five years between the deceased and the accused in respect of the land. At about 10.00 a.m. on 27.12.87, P.W.1 with her daughter P. W.2 was standing in front of her house and talking. At that time. A1 and A2 came there and tried to remove the fence erected with dry leaves. The deceased questioned them and A1 thereafter cut the deceased twice on the left side of the shoulder and A2 cut him on the right side of the shoulder. When the witnesses interfered, they were also threatened. The accused ran away towards north. The occurrence was witnessed by P.Ws. 1, 2 and 4. Thilagaraj who was passing by that side, stopped the van which was driven by P.W.14. In the van the injured was placed and removed to the Government Hospital. Tuticorin and produced before the duty doctor, P.W.7. P.W.7 examined the injured, and found on him the following injuries:
Cut injury 12 cm x 4 cm x 2 cm in lower part, left side of the neck
Cut injury about 12 cm x 2 cm on upper part of left scapula on oozing out.
Cut injury about 5 cm x 2 cm x 4 cm on upper part of right scapula.
Cut injury about 5 cm x 1 cm x 4 cm on left shoulder
Linear abrasion around the back of the neck present.
Ex.P6 is the copy of the Accidents Register: The doctor sent Ex.P.2 an intimation to the Judicial Magistrate to record the statement of the injured as his condition was serious Ex.P.4. the intimation was also sent by the doctor. On receipt of Ex.P.2. P.W.6, the Judicial Magistrate. Tuticorin reached the Hospital and found the injured in the ward undergoing treatment He questioned him and the injured gave a statement which was reduced to writing. The said statement is Ex.P.3 and the said statement was also attested by P.W.7 the doctor.
The intimation Ex.P.4 sent by the doctor was received by P.W. 15. Grade I Police Constable at Thermal Nagar Police Station, Tuticorin and P.W.15 on receipt of the said intimation, went to the hospital and recorded the statement given by the injured at 12.10 p.m. in which P.W.1 attested;. P.W.16 was informed about the complaint given by the injured through wireless. On receipt of the said intimation. P.W.16 went to the Thermal Nagar Police Station, obtained Exs.P1 and P4 and handed them over to P.W.17, the Sub-Inspector, who on the basis of Ex.P.1 registered a case in Crime No. 438/87 u/s 307 I.P.C. Ex.P.16 is the first information report. P.W.20. the Inspector of Police took up the investigation, reached the scene of occurrence at 7.30 p.m. where he prepared the observation Mahazar Ex.P.14. He also drew the rough sketch Ex.P.18. He seized the blood stained earth and the sample earth from the scene of occurrence. In the meantime, the injured who was undergoing treatment in the hospital, breathed his last and death intimation Ex.P.7 was sent by P.W.8. On receipt of the death intimation, the crime was altered to one u/s 302 I.P.C. Ex.P.17 is the copy of the Express report in the altered crime.
P.W.20 on coming to know that the injured has breathed his last in the hospital, went to the hospital at Tuticorin and conducted inquest over the body of the deceased between 7.00 a.m. and 10.00 a.m. on 28.12.87 in the presence of Panchayathar and at the time of inquest, he questioned and recorded the statements of P.Ws.1, 2 and 4. The inquest report is Ex.P.19 and he issued a requisition to the doctor for conducting autopsy.
On receipt of the requisition P.W.9, Civil Assistant Surgeon attached to Tuticorin Hospital conducted autopsy on the body of Arunachala Nadar (a) Karuthappandi and found the following injuries:
A sutured wound transversely placed. 12 cms in length present in left side of neck in the posterior triangle in the lower 1/3 of neck. On exploration underlying muscles sutured depth 6 cms.
A sutured wound 12 cms in length present just about the left scapula obliquely placed. On exploration it enters the left pleural cavity cutting the fracture underlying. II rib into two muscles sutured. Depth 6 cms.
A sutured wound 5 cms horizontally placed over the right scapula. On exploration underlying muscles sutured Depth 4 cms.
A sutured wound 5 cms placed vertically in the left shoulder on exploration the underlying muscles Sutured Depth 4 cms.
A linear abrasion 8 cms x 2 cms vertically placed present in the hepe of neck.
He issued Ex.P.9. the post mortem report and he opined that the deceased died on account of shock and haemorrhage due to multiple injuries sustained about 18 to 24 hours prior to post-mortem.
P.W.20 continued the investigation and searched for the accused but they were found absconding. He questioned P.W.5 and recorded his statement on 30.12.87. On 30.12.87 he arrested the second accused at 5 a.m. in the presence of P.W. 12 When the second accused was questioned, he gave a statement. The admissible portion is Ex.P.20. In pursuance of the said statement, the second accused took the police to Pottaikulam and produced MO.1 aruval which was seized under a Mahazar Ex.P.21 attested by P. Ws.12 and 13. The other witnesses in the case were also examined and the statements were recorded He sent the material objects of the Court with a request to forward them for chemical analysis. The first accused surrendered before the Court on 19.1.88. After completing the investigation, the final report was filed against the accused.
When questioned u/s 313 Cr.P.C., on the incriminating circumstances appearing against the accused, the accused denied them completely. The first accused has stated that the deceased was a broker by profession and was not prompt in payment. According to A1, on 27.12.87 in front of the shop of Duraipandi Nadar, a person by name Rajapandi was creating trouble after having drunk tea and that there was a quarrel between the parties and that the deceased sustained injuries in the said quarrel. He has further stated that Thilagaraj who was inimical towards them stopped the van which was passing that side and took the injured to the hospital and foisted a case upon him and his brother. The second accused adopted the stand taken by the first accused in his statement u/s 313 Cr.P.C.
The prosecution before the trial Court examined P. Ws.1 to 4 as eye-witnesses and of them P. Ws.1 and 2 are related to the deceased. P.W.4 is the neighbour. P.W.3 did not support the prosecution and hence treated as hostile.
The learned Counsel appearing for the accused strenuously contends that the dying declaration Ex.P.3 cannot be relied upon since there is a contradiction as to who attested the dying declaration. He also submits that the seat of injury mentioned in Ex.P.1 is not supported by the Medical evidence. The learned Counsel also contends that the names in the dying declaration must have been furnished by Thilagaraj who was inimically disposed towards the accused and the non-examination of the said Thilagaraj is fatal to the prosecution. He also submits that in view of the contradiction, between the evidence of P.W.14 the van driver, and his statement as to whether Thilagaraj travelled in the van affects the prosecution version. Finally, the learned Counsel submits that even if the facts are taken to be true the offence committed by the accused will not attract the penal provisions u/s 302 I.P.C. and that the accused could only be convicted u/s 304 Part I. I.P.C.
We will now analyse the evidence of P. Ws.1. 2 and 4. Though P. Ws. 1 and 2 are related to the deceased, their evidence, cannot be rejected unless there are suspicious circumstances or materials which show that they did not come up with true version. P.W.4 is. admittedly, an independent witness. It is the evidence of eye- witnesses that the accused went and picked up a quarrel with the deceased questioning him as to why he has erected the fence with leaves. The deceased also questioned them and at that time the deceased was cut by the accused 1 and 2 and on being cut the deceased fell down and thereafter Thilagaraj a friend of deceased who was passing by that side stopped the van driven by P.W.14. In the van the injured was placed P.Ws.1 and 2 have also accompanied the injured to the hospital and the injured was produced by Thilagaraj before the Doctor. The evidence of P.W.4 supports the evidence of P.W. 1 and 2. He has in his evidence stated that some time after the incident the van was stopped in which the injured was placed and taken to the hospital. Their evidence is supported by P.W.7 the doctor. P.W.7. in his evidence, has stated that the injured was produced before him at about 11.45 a.m. on 27.12.87 by Thilagaraj and that he was cut by two known persons. He issued Ex.P.6. copy of the Accident register in which he not only noted the injuries found by him on the injured but also the names of the assailants. In fact, he has stated in the chief examination that the names were furnished by the injured himself though in the cross-examination he has staled that Thilagaraj also gave the names From the admission of the doctor in the cross-examination that Thilagaraj also gave the names, this Court cannot infer that the names were given by Thilagaraj and not by the deceased. The accused also have no case that the injured was unconscious and could not have given the statement. In fact the injured was conscious when a requisition was issued by the doctor to the Judicial Magistrate for recording the statement. The fact that the requisition was given by the doctor when injured was conscious indicates that the names of the assailants were furnished to the doctor by the injured himself. Our conclusion is further strengthened by Ex.P.3. the dying declaration given by the injured to P. W.6. the Judicial Magistrate at 12.05 p.m. P.W.6 the Judicial Magistrate, on receipt of the requisition from the doctor, went to the hospital and questioned the injured. According to P.W.6 the injured gave a statement and he reduced it into writing. It was also certified by the Doctor P.W.7. We perused Ex.P.3. as well as the certificate given by P W.7. The deceased in the said statement stated that he was cut by A1 and A2 on account of land dispute. We have no reason to reject the evidence of P.W.6 when he has stated that it was the deceased who had given the statement. Merely because the Judicial Magistrate by mistake at one place stated that the dying declaration was attested by doctor with the name Arumugham it cannot be rejected. In fact, in the re-examination he has clarified and stated that the said dying declaration was attested by Anandhan who was examined as P.W.7 before the Trial Court. In fact, we perused the original dying declaration Ex.P.3 as well as the evidence of P.W.7 wherein P.W.7 has signed, we compared the signature found in Ex.P.3 and the evidence and we notice that P.W,7 who has signed his deposition has attested Ex.P.3. The signature found in Ex.P.3 is similar to the signature found in the deposition given by P.W.7. This shows that Ex.P.3 was actually attested by P.W.7. He stated that the Magistrate came to the hospital and recorded the statement in which he has attested and certified. We have no reason to reject the evidence of the doctor or the Magistrate who are independent and we therefore accept. Ex. P.3. The contention of the counsel that the names must have been furnished by Thilagaraj therefore fails. Merely because P.W.1 in her evidence has stated that her husband is a literate and knew how to sign it cannot be said that Ex. P3 had not been given by the deceased since the statement contains the thumb impression of the deceased. It is possible on account of the injuries and pain he did not affix his signature and the Magistrate might have thought that it is enough if he puts the thumb impression and accordingly obtained thumb impression. The defence did not even suggest to the Magistrate that the thumb impression found in the dying declaration is not the thumb impression of the deceased. In the above circumstances, we cannot hold that the thumb impression found in Ex.P.3 is not that of the deceased and it was affixed by some one else. We, therefore, accept the evidence of P. Ws.6 and 7 that the deceased gave a statement Ex.P.3. Once we accept the Ex.P.3, then there cannot be any doubt in the mind of the Court that A1 and A2 cut the injured and caused his death. In this back-ground the other contentions namely that Thilagaraj was not examined, that Thilagaraj furnished the names to the Magistrate, that there is no corroboration as regards the cause by A2, fail and they are accordingly rejected We, on the discussion made above come to the conclusion that A1 and A2 caused injuries on the deceased which resulted in the death of the deceased.
All that we have to note is the nature of the offence committed by A1 and A2. The learned Counsel relying on the admission of P. Ws.1, 2 and 4 in the cross examination submits that there was a quarrel before the incident and during the quarrel the deceased was cut. He submits that the civil dispute was pending for more that five years and unless mere was immediate provocation the accused would not have cut the deceased. The statement of the counsel is that the prosecution did not come out as to what actually had taken place just prior to the incident for the accused to get provoked and attack the deceased. He submits that there must have been a quarrel is seen indicated by the admission made by P. Ws.1, 2 and 4. P.W.1 in her evidence has admitted that there was a quarrel between her husband and the accused just prior to the incident. Similar is the evidence of P. W.2. She had admitted that there was a wordy altercation between the parties. P.W.4 the independent witness, has stated that the quarrel continued for about 15 minutes and that the accused were in possession of aruval and used it to remove the fence. Relying upon this piece of evidence of P.W.4. the learned Counsel submits that the accused have used the aruval only to remove the fence and in the quarrel cut the deceased and they came there only to remove the fence. We see some force in this contention. As stated by the counsel. P.W.4 has admitted in the Cross-examination that the accused went to the scene with aruval and started removing the fence with that. When the deceased questioned quarrel ensued between them and during the quarrel the deceased was cut by the accused. It can be seen from the above facts that the accused went with aruval not with a view to cut the deceased but with a view to remove the fence and when the quarrel ensued used the aruval to cut the deceased. It cannot also be said that they acted cruelly or in an unusual manner. We are of the view that on the discussion made above the accused are entitled for the benefit of Exception 1 to Section 300 I.P.C. and the same is given to them.
Therefore, the accused cannot be convicted u/s 302 I.P.C. Their conviction u/s 302 I.P.C. is set aside and instead they are convicted u/s 304 Part I, I.P.C. read with Section 34 I.P.C. and for the said conviction they are directed to undergo rigorous imprisonment for seven years. The Criminal appeal is disposed of.