In Re : Arumugam and another (Accused)

R. Balasubramanian, J.—By judgment dated 20-1-1997 in S.C. No. 75 of 1996, the Principal Sessions Judge, Kanyakumari Division At

Nagercoil convicted the first accused for an offence u/s 302 (2 counts) of the Indian Penal Code and the second accused for an offence u/s 302 of

the Indian Penal Code. The first accused for the offences charged and framed was sentenced to the death and the second accused for the offence

charged and tried was sentenced to undergo rigorous imprisonment for life. R.T. No. 1 of 1997 had come up before us pursuant to Section 366 of

the Code of Criminal Procedure and C.A. 139 of 1997 had been filed by the accused questioning the judgment above referred to. Since both R.T.

1 of 1997 and C.A. No. 139 of 1997 arise out of a single judgment, we have decided to dispose of both the matters by a common judgment.

Chockalingam Pillai, who is deceased No. 1 in this case, is the husband of P.W. 1. He is a retired Forestor. The deceased Chockalingam Pillai

and P.W. 1 had two daughters and one son. Subramania Pillai, deceased No. 2 in this case is the son of deceased No. 1 and P.W. 1. P.W. 2 is

the wife of the deceased No. 2. P.W. 2 and her deceased husband were living at Madras and her husband was employed in a private company at

Madras P.W. 4 is the eldest son-in-law of P.W. 1 and deceased Chockalingam Pillai. P.W. 4 was employed as Junior Engineer in the Tamil Nadu

Electricity Board at Elevenchipuram in Tirunelveli District. P.W. 1 and her husband deceased Chokalingam Pillai are residing at Esanthimangalam

Village. P.W. 3 is also resident of the same village and his house is situated in the village where P.W. 1 resides. Accused 1 and 2 are the sons of

one Velukambar second accused being elder to the first accused. On the east of P.W. 1''s house is situated the house of accused 1 and 2. There

have been disputes between the accused on the hand and deceased Chockalingam Pillai on the other hand regarding a pathway. About four

months prior to the occurrence, which was on 17-1-1996 Chokalingam Pillai (first deceased) attacked Velukumbar, the father of accused 1 and 2.

Regarding this incident a case was filed against the deceased Chockalingam Pillai at Boothapandi Police Station.

During the festival of Pongal in the Month of January, 1996 P.W. 2 and her husband Subramania Pillai (second deceased) came to the village of

Esanthimangalam with their child to see P.W. 1 and her husband. At 8.30 p.m. on 17-1-1996 the deceased Chockalingam Pillai and his son

deceased Subramania Pillai were sitting in front of their house and talking. At that time, the accused, who were standing in front of their house,

were found uttering something against the deceased Chockalingam Pillai. From Ex. P. 18 rough sketch, it is seen that the house of the deceased

Chockalingam Pillai and the house of the accused are situated adjacent to each other on the north of the east west road and the house of the

accused being situated on the east of the house of deceased Chockalingam Pillai. PWs. 1 and 2 were also there at that time P.W. 3 came that way

as well as one Meenakshi. The deceased Chockalingam Pillai turned towards the accused and asked them as to why they are abusing.

Immediately, the first accused armed with M.O. 1 (Veechurauval) and the second accused armed with M.O. 2 (Vetturvuval) came running toward

the deceased Chockalingam Pillai. Then, the first accused aimed a cut on the deceased Chockalingam Pillai, which fell on his left flank. On seeing

this, Subramania Pillai attempted to prevent the attack on his father. Immediately, the first accused with M.O. 1 aimed a cut on the left hand of

Subramania Pillai. The injured Subramania Pillai and Chockalingam Pillai fell down. The second accused with M.O. 2 indiscriminately cut on the

body of deceased Chockalinam Pillai, who was already on the ground. Likewise, the first accused with M.O. 1 attacked indiscriminately on the

body of the deceased Subramania Pillai, who was also already on the ground. P.Ws. 1, 2, 3 and Meenakshi saw the occurrence in the electric light

available there. P.Ws. 1 and 2 have stated that they were able to see the occurrence with the electric light burning in their house as well as in the

house of the accused. P.W. 3 caught hold of the first accused and the weapon in the hands of the first accused fell down. The first accused

suffered an injury on the small finger of his left hand and on his left foot. P.W. 1 raised a hue and cry and people gathered. Both the accused ran

away from the scene of occurrence.

Thereafter, P.W. 3 went to Thirtuvillai and hired a taxi bearing No. TNI 4510 belonging to P.W. 6 and brought the taxi driven by P.W. 6 to the

scene of occurrence. In that taxi P.W. 3 transported the injured Chockalingam Pillai and Subramania Pillai as well as P.Ws. 1 and 2 to the

Government Hospital at Nagerocil. On reaching the hospital, the hospital authorities pronounced that Chockalingam Pillai and Subramania Pillai are

already dead. P.W. 4 on hearing about the incident came to the house of his deceased father-in-law Chockalingam Pillai at Esanthimangalam.

P.W. 10 employed as Line Man in the Tamil Nadu Electricity Board, Boothapandi stated that Esanthimangalam. Navalkadu and Irochakulam

villages come within his jurisdiction. According to him, there was no power cut in the above mentioned villages on the night of 17-1-1996. He also

resides at Esanthimangalam. He would further state that there was an electric post in front of the house of deceased Chockalingam Pillai, but there

was no bulb.

P.W. 13 was working as a Head-Constable at Boothapandi Police Station during the relevant time that is, on 17-1-1996. At 9 p.m. on that day

on receipt of a message over telephone he proceeded to the Government Hospital at Kottar in Nagercoil and reached the hospital at about 9.45

p.m. Ex. P. 16, the death intimation sent by the hospital authorities to the police station was received by him at the hospital from the hospital staff.

Then, he proceeded to the mortuary and found P.Ws. 1, 2 and 3 there. Then, he recorded the statement of P.W. 1 and after reading it over to her

he got her signature in it. Ex. P. 1 is the complaint given by P.W. 1 to P.W. 13 in the hospital. Thereafter, P.W. 13 came back to the police station

and registered the complaint in his police station Cr. No. 16 of 1996, for an offence u/s 302 of the Indian Penal Code. He prepared Ex. P. 17

Express Report and sent it to the Judicial Magistrate as well as to the higher officials of his department.

P.W. 14 the Inspector of Police, Boothapandi Police Station received the first information report at 5 a.m. on 18-1-1996 at the junction of

Therisanamkoppu. Immediately, he went to the scene village, viz. Esanthimangalam. Between 5 a.m. and 6 a.m. on 18-1-1996 he prepared Ex. P.

2 the observation mahazar in the presence of P.W. 4 and another. He also prepared rough sketch Ex. P. 18 showing the topography of the scene

of occurrence from the scene of occurrence he recovered M.O. 3, the blood stained dhoti. M.O. 4 the blood stained earth and M.O. 5 the sample

earth a cover of mahazar Ex. P. 3 attested by P.W. 4 and another. Between 7 a.m. and 9 a.m. on 18-1-1996 he conducted inquest over the dead

body of Chockalingam Pillai in the mortuary of the Government Hospital. Nagercoil in the presence of Panchayatdars and witnesses. Ex. P. 19 is

the inquest report relating to the death of the deceased Chockalingam Pillai. This was immediately followed by the inquest on the dead body of

Subramania Pillai between 9.15 a.m. and 11.45 a.m. on the same day in the presence of Panchayatdars and witnesses. Ex. P. 20 is the inquest

report relating to the death of Subramania Pillai. Between 11.30 a.m. and 2 p.m. on that day P.W. 14 examined P.Ws. 1 to 4 and other witnesses.

P.W. 9 is working as an Assistant to the District Police Photographer at Kanyakumari. At the request of P.W. 14, he went to the mortuary in the

Government Hospital at Nagercoil on 18-1-1996 and took photographs of both the deceased in 11 different angles Ex. P. 10 (series) are the

photographs. P.W. 14 sent the dead bodies through P.W. 11 with a requisition Ex. P. 6 to the Doctor for conducting post-mortem on the dead

bodies. P.W. 11 handed over the requisition above referred to the Doctor.

P.W. 7 was working as Doctor on 18-1-1996 in the Government Head Quarters Hospital at Nagercoil. On receipt of the requisition Ex. P. 6

from P.W. 14 he commenced the post-mortem on the dead body of deceased Chockalingam Pillai at 11.30 a.m. and completed the sums at

12.30 p.m. and found the following symptoms.

External Injuries :

A horizontal cut injury on the lateral aspect of left chest wall extending into both anteriorly and posteriorl size 22 x 5 cm. x 2.5 cm. The ends of

the injury is pointed. On exploration the anterior part of the injury cults through the 6th intercoastal spare intercostal muscles/intercoastal vessels.

Middle and posterior part of the injury does not enter into the thorasic cavity. There is a oblique Fracture of the 6th rib at the anterior part of the

injury enters through 3 cm. Horizontal tear of parietal plours. There is about 500 ml. of clotted blood inside the thorasic cavity.

A horizontal cut injury of 10 x 1 x 0.5 cm. with both ends pointed on the posterior aspect of the left thorasic wall just below the inferior angle of

the left scapule.

A horizontal cut injury of 10 cm x 4 cm x bone deep seen on the anterior and lateral aspect of upper left thigh both ends of the injury are

pointed. The cut ends of thigh muscles are seen gaping writs cut and of blood vessels. The left femur bone is fractured horizontally.

A horizontal cut injury size of 8 cm x 4 cm x 3 cm seen at the posterior aspect of left thigh just above the knee joint. The cut ends of thigh

muscles with cut ends of blood vessels are seen.

A horizontal cut injury 8 cm x 3 cm entering into knee joint spare, seen on the posterior aspect of left knee joint. It is seen cutting through the

muscles and blood vessels behind the knee joint. The cartilages of both ends of knee joint bone are injured, lacerated blood clot see inside.

A horizontal cut injury of 7 cm x 6 cm bone deep seen on the right posterior medical aspect of right knee joint with the medish lower end of

femoral bone seen.

An oblique cut injury of 13 x 8 cm. x Bone deep seen over the Medial and posterior aspect of the left lower limb calf region with calf muscles

cut and left tibial bone fractures horizontally RM present in all 4 limb mouth closed, tongue inside Jaw partially clenched. Heart Weight 250 gm. C.

S. Pale. Chambers empty.

Lungs : Right 400 gms. Left 350 gms. 3 cm. horizontal cut injury an lateral aspect of left lung cut section pale. Hyoid bone intact. No fracture of

skull bone.

Brain weight 1450 gms. cut section pale.

Stomach : Weight 300 gms. 150 gms. partially digested food particles present. No specific colour found.

Liver : 1350 gms. cut section pale.

Opleum : 100 gms. cut section pale. Each kidney weight 100 gms. cut section pale. Bladder empty. Post-mortem concluded at 12.30 p.m. on 18-

1-1996.

According to him, the deceased No. 1 would appear to have died of multiple injuries with haemorrhage and shock and death would have occurred

12 to 14 hours prior to the post-mortem. Ex. P. 7 is the post-mortem certificate. He also opined that the injuries found on the body of deceased

Chockalingam Pillai would have been caused by a weapon like M.O. 1 and injuries 1, 3 and 4 would cause instantaneous death.

Likewise, he commenced the post-mortem on the body of deceased Subramaniam Pillai at 12.45 p.m. on that day and completed the same at

1.45 p.m. on the same day. During the post-mortem, he found the following symptoms.

INJURIES : -----------

A 13 cm x 8 x 6 cm. horizontal cut injury on the left axille (arm pit). The muscles are cut with cut ends of muscle seen fractured upper end of left

hummerous bone just below the head of it seen on exploration. Auxillary artery veins are cut with blood clot seen around.

A oblique cut injury of 15 x 3 cm. with depth upto bone is seen on the anterior aspect of middle of left forearm. The cut end on forearm muscles

are seen.

A horizontal cut injury of 13 x 3 x 4 cm. depth seen at the anterior aspect of the injury and 2 cm. depth at the lateral and posterior aspect of the

injury, seen on the upper part of left thigh. The cuts of thigh muscles are seen. The femural artery and femural nerves are cut with blood clot seen

around the cut and or artery.

A oblique 12 x 15 cm. x bone deep cut injury on the lateral aspect of left thigh just above left knee with thigh muscles cut and left forearm bone

fractured horizontally.

A oblique cut injury below the right knee on the anterior lateral aspect of upper chin size of 13 cm x 5 cm x 0.5 cm. with a deep of skin with

muscles on the upper aspect.

A cut injury of 5 x 4 cm bone deep of left parietal aspect of scalp on head with a flap of kin and sub-cut-neous. Tissue seen on the laterial

aspect of the injury.

1 cm linear fracture seen on the outer table of the parietal bone of skull. No fracture seen on the inner table. No blood in the cranial, cavity R.M.

present in all 4 limbs. Mouth closed. Tongue inside, Jaws partially clanched. Hands empty Heart weight 250 gms. cut section Pale. Chambers

empty Lungs right 400 gms. Left 350 gms. Cut Section pale.

Hyoid bone intact, stomach weight 350 gms. 200 gms. of partially disgusted good parties seen. No specific colour found. Liver : 1250 gms. cut

section pale. Spleen 90 gms. Cut section pale Each kidney weight 100 gms. Cut section pale. Bladder empty Brain weight 1450 gms. Cut section

pale.

According to the Doctor, the deceased would appear to have died of shock and haemorrhage due to multiple injuries and death would have

occurred 13 to 15 hours prior to post-mortem. Ex. P. 8 is the post-mortem certificate. According to him, the injuries found on the body of the

deceased Subramania Pillai would have been caused by a weapon like M.O. 1 and injuries 1 and 3 are likely to case instaneous death.

P.W. 11 the Head Constable attached to Boothapandi Police Station after the post-mortem, recovered M.O. 6 underwear from the person of

the body of Subramania Pillai and M.Os. 7 and 8 dhoti and underwear respectively from the person of body of deceased Chockalingam Pillai and

handed over the same to P.W. 14. The dead bodies were handed over to their relatives. At 2.30 p.m. on 18-1-1996 P.W. 14 arrested accused 1

and 2 in the presence of P.W. 5 at Kallarlmadam on the rear side of the village Irachakulam. At that time the first accused gave a confession

statement, the admissible portion of which is marked as Ex. P. 4 in this case. Pursuant to the statement, the first accused took P.W. 14 and the

witnesses to Melasanthimangalam village to the house of first accused''s brother, Murgan and produced M.Os. 1 and 2 which were concealed in

the rubbish pit situation at the rear side of their house. They were recovered by P.W. 14 under Ex. P. 5 attested by P.W. 5 and another. The

accused and the properties recovered were brought to the Police station and the accused were kept in the lock up.

Since the first accused had an injury on the middle finger of his left hand and on the big toe of his left foot P.W. 14 sent him for treatment to the

hospital with a memo. P.W. 8. The Doctor working in the hospital on 19-1-1996, examined the first accused at 9.45 a.m. on 19-1-1996 when the

first accused was brought there. At that time, the first accused is stated to have informed him that he sustained injury when he attached two known

persons at 8.45 on 17-1-1996 in front of his house. P.W. 18 noticed the following injuries on the person of the first accused :

A cut injury 11/4"" length on the palmer aspect of left middle finger.

A cut injury on the inner aspect of left big toe 1/2"" length.

Ex. P. 9 is the accident register for the first accused and both the injuries are found to be simple. P.W. 14 produced the accused before the Court

for remand as well as sent M.Os. 1 to 8 to the court. He also sent a requisition to the court on 23-1-1996 to send the case property for chemical

examination. P.W. 12 was working as the Head Clerk in the court of the Judicial Magistrate-I Nagercoil on 24-1-1996. On receipt of Ex. P. 11,

he sent the case properties for chemical examination. He sent M.Os. 1 to 8 securely packed in the presence of the Magistrate for chemical

examination under a letter Ex. P. 12. Ex. P. 13 and Ex. P. 14 are Chemical Examiners Report and Ex. P. 15 is the Serologist Report which were

received by the Court. After completing the investigation. P.W. 14 field a final report before the court against the first accused for an offence u/s

302, I.P.C. r/w 34, I.P.C. and against the second accused for an offence u/s 302, I.P.C. However, the Court framed the charge against both the

accused only for an offence u/s 302, I.P.C.

When the accused were questioned by the court u/s 313(1)(b) of the Code of Criminal Procedure on the basis of the incriminating materials

made available against them by the prosecution, first accused had stated as follows :-

His house and the house of P.W. 1 are situated side by side; there is no dispute regarding the passage; his father was attacked four months before

by Chockalingam Pillai which made his father give a complaint against Chockalingam Pillai at Boothapandi Police Station. He denied the

occurrence as well as denied that he sustained any injury. He was taken to the hospital by the police where the police and the Doctor conversed

with each other; Doctor refused to do what the police wanted. He was employed in the textile shop of one Nallaporumal and he used to leave his

house at 8 a.m. and come back only at 10 p.m. after the work was over. Likewise when he came home on that day at 10 p.m. he came to know

that Chockalingam Pillai and Subramania Pillai attacked each other, his old house remains under lock and key for four months and that he is

residing with his brother Murugan. At 2 p.m. on that night P.W. 3 accompanied by the police came to the house of his brother and knocked the

door. He and his brother were taken in the jeep to Boothapandi Police Station and at 5 a.m. on the following day, the second accused also came

there. The second accused is performing poojas in the temple and he trades in selling shells. There is no quarrel or dispute between them and

Chockalingam Pillai and that since his father was aged, they are all living together. P.W. 3 is the brother-in-law of the deceased Chockalingam

Pillai and that P.W. 3 has a strained relationship with him. The family of the accused is the only family in the village (obviously meaning community

wise). From the time of his grand-father they have been performing poojas in the Badrakali Amman temple. The deceased Chockalingam Pillai

retired as forester and he has Pattakathi and Vettuaruval in his possession. Only with those weapons Chockalingam Pillai attacked his father. The

deceased Chockalingam Pillai and his father had disputes.

When the second accused was likewise question, he admitted that their house and the house of Chockalingam Pillai are adjacent houses. He

denied the occurrence. After his father was attacked by Chockalingam Pillai, he has, shifted, his residence to Kanyakumari where he is residing

with his brother-in-law and he ekes out his livelihood by selling shells. He used to perform poojas in the temple and he never had, Pattakathi. They

belong to Kambar community and he continue, to perform pooja even upto that date.

Both the accused did not examine any witnesses on their side.

The learned trial judge after recording the oral evidence of P.Ws. 1 to 14 and the documentary evidence marked as Exs. P. 1 to P. 20 with the

marking of M.Os. 1 to 8 applied his mind to the evidence let in by the prosecution and found that it had established it''s case against the accused

beyond all reasonable doubt. As a result, the first accused was found guilty for an offence u/s 302 of the Indian Penal Code (2 counts) and the

second accused for an offence u/s 302 of the Indian Penal Code and meted out the sentence as referred to earlier. The correctness of this

judgment is questioned before us in this referred trial as also in the criminal appeal.

We heard Mr. N. T. Vanamamalai, learned Senior Counsel appearing for the accused in both the Referred Trial and Criminal Appeal as well

as Mr. R. Shanmugasundram, learned Public Prosecutor for the State in extenso. According to the learned Senior Counsel, the judgment of the

trial court is faulty, erroneous and the finding of guilt is not supported by any acceptable evidence. The learned Senior counsel would add that

though in Ex. P. 1 and in the evidence of P.Ws. 1 and 3 there is a reference to the second accused also participating in the attack on the deceased

Chockalingam Pillai. Yet, PW 2 did not implicate the second accused at all in any portion of the attack either on deceased. No. 1 or on deceased

No. 2. In elaborating this, the learned Senior Counsel would argue that compared to the evidence of PWs. 1 and 3, the evidence of P.W. 2 is

most appealing and natural and she is the only witness, who is comparatively not very much interested in PW 1 or the first deceased or P.W. 3.

Therefore, her evidence, according to the learned Senior Counsel should be preferred to the evidence of P.Ws. 1 and 3 as she does not implicate

the second accused with any portion of the attack on both the deceased, he is entitled to be given the benefit of doubt. In continuation of his

argument, he would also state that no recovery of any weapon had been made at the instance of the second accused and M.O. 2 stated to have

been used by the second accused did not contain any human blood. According to the prosecution. M.Os. 1 and 2 are utilised in injuring the

deceased at the same time and they were recovered at the same time. When human blood is detected in M.O. 1, the absence of human blood in

M.O. 2 would be a serious suspicious circumstance to be taken in favour of the second accused as to whether M.O. 2 would have been used at

all.

Next, the learned Senior Counsel would contend that according to the prosecution version the first accused had injury on his left palm and in

his left foot and this had not been explained by P.Ws. 1 and 2 and there is no reference to this also in Ex. P. 1 Though, P.W. 3 would attempt to

explain this injury, yet, according to the learned Senior Counsel, it cannot be believed because, if really P.W. 3 knew about the injury sustained by

the first accused, then, he would have definitely told P.Ws. 1 and 2 about the same and the fact that P.W. 1 did not incorporate about the injury

sustained by the first accused in Ex. P. 1 would go to show that P.W. 3''s evidence is an after-thought. Therefore, according to the learned Senior

Counsel, the prosecution had suppressed the truth. He would also argue that the fact that the first accused had sustained injury, though, he had not

pleaded the case of self-defence would go to show that the first accused had acted in self-defence and the entire case should be viewed frost that

angle. Learned Senior Counsel would draw our attention to the evidence available in this case, which indicate that the attack on both the deceased

was preceded by some wordy quarrel between the father of the accused on the one hand and the deceased Chockalingam on the other hand and

when the quarrel reached a point of no return or compromise, the accused lost themselves in anger and then conducted themselves, in the manner

spoken to by the prosecution. Thus, the occurrence had taken place when the accused were in the midest of grave and sudden provocation. The

learned Senior Counsel would also state that there was no electric lamp in the street opposite to the house of Chockalingam Pillai as spoken to by

P.W. 10 This is also noticed in the observation Mahazar Ex. P. 2. Though P.Ws. 1 and 2 would state that they were able to see the occurrence

from the electric lamp burning inside their house and inside the house of the accused yet, there being no reference to the same in the observation

mahazar, no credence could be attached to the evidence of P.Ws. 1 and 2 about the light element present in the scene of occurrence, which would

have enabled the witnesses to see the occurrence. P.W. 14, it is brought to our notice, in his evident had admitted that he had not shown in the

rough, sketch Ex. P. 18 about the presence of the light element in the house of the accused as well as in the house of P.W. 1.

Lastly, learned Senior Counsel would draw our attention to the fact that blood-stained dhoti, viz. M.O. 8 was recovered from the scene of

occurrence as spoken to by P.W. 4 the mazahar witness as well as P.W. 14, the Investigating Officer. Another dhoti belonging to the deceased

Chockalingam Pillai marked in this case as M.O. 7 was also recovered. Both the dhoties were subjected to chemical examination and serologist

examination. The Chemical Examiner detected blood in both these items and the Serologist found the presence of human blood on these two

dhoties, viz., M.O. 3 and M.O. 7, though the result of the grouping test was inconclusive. According to the learned Senior Counsel M.O. 3 is not

connected with any of the prosecution witnesses or the deceased or the accused and there is a total lack of evidence regarding this. This is a

serious circumstances, according to the learned Senior Counsel, to be taken note of in giving the benefit of doubt to the accused. On the points as

narrated above, learned Senior Counsel wanted to acquit the accused. Last, but not the least, the learned Senior Counsel submitted that the death

sentence imposed on the first accused is wholly unwarranted and unjustified on the facts and circumstances of the case.

Per contra, learned Public Prosecutor Mr. R. Shanmugasundram appearing for the State would state that the judgment of the trial Judge did

not suffer from any legal infirmity or factual error warranting interference at our hands. Even at the out set, on the question of death sentence

imposes in the first accused learned Public Prosecutor for the State fairly stated that on the facts and circumstances of the case, the death sentence

is not warranted and we place on record our appreciation for this fair submission of the learned Public Prosecutor. According to the learned Public

Prosecutor within a matter of one hour the complaint was registered in the police station and within two hours thereafter, that is, by 1.15 a.m. on

the following morning Exs. P. 1 and 17 had reached the court. The entire prosecution case had been clearly spelt out in Ex. P1 and there is

absolutely no chance for any of the prosecution witnesses to deliberate and falsely implicate innocent people. The complaint itself was recorded in

the hospital by the side of the mortuary. The evidence of P.W. 1 and P.W. 3 fully corroborates the case of the prosecution as put forward by them

in Ex. P. 1. The evidence of P.W. 2 also corroborates the evidence of P.Ws. 1 and 3 on all aspects, though regarding the overt acts attributed to

the second accused, there is same omission in that evidence. This, according to the learned Public Prosecutor, would not in anyway affect the case

of the prosecution. P.W. 2 also clearly speaks about accused 1 and 2 armed with M.Os. 1 and 2 present at the scene of occurrence. Therefore,

the mere failure of P.W. 2 to speak about the second accused''s overt acts, in conjunction with the evidence of P.Ws. 1 and 3 and the averments

in Ex. P. 1, cannot by itself discredit the entire prosecution case warranting the acquittal of the second accused. According to the learned Public

Prosecutor, the entire investigation commenced in the morning of 18-1-1996 and almost completed on the same day. The recoveries made at the

instance of the first accused lends ample support to the case of the prosecution. Regarding the non-explanation of the injury found on the first

accused, the learned Public Prosecutor would state that every injury need not be explained as settled by a long line of decision of this court as well

as by the Supreme Court and in this case, the injuries found on the first accused were very simple in nature. In any event, according to the learned

Public Prosecutor, P.W. 3 had explained these injuries and it is he, who alone can speak about the same and not any other. Therefore, the failure

of P.Ws. 1 and 2 to speak about that as well as the non-mentioned of the same in Ex. P. 1 cannot make a dent in the prosecution case. According

to him, every doubt in the prosecutions case cannot throw out the entire case of the prosecution. But the prosecution case had to be thrown out

only if the doubts shown to be available on record are of a reasonable nature which would shock the conscience of any Court and the doubts

pointed out by the learned Senior Counsel appearing for the appellants do not fall within this category. On these points, learned Public Prosecutor

argued for sustaining the finding of guilt.

We have carefully applied our mind to the various contentions raised by both the learned counsel and also went through the entire evidence

made available in this case. Two people by name Chockalingam Pillai and Subramania Pillai, who are father and son, died in this case due to

homicidal violence, which fact cannot be disputed. P.W. 1 is the wife of Chockalingam Pillai hereinafter referred to as deceased No. 1 and P.W. 2

is the wife of Subramania Pillai hereinafter referred to as deceased No. 2. P.Ws. 1, 3 and the deceased on the one hand and the accused on the

other hand are the resident of Esenthimangalam Village also is an admitted fact. P.W. 2, the daughter-in-law of P.W. 1 and the wife of deceased

No. 2 originally belonged to the same village, but, after marriage she shifted her residence to Madras. P.W. 1 clearly states in her evidence that the

house of the accused is situated adjacent to her house. In Ex. P. 13 rough sketch it is also clearly shown that the house of the accused is situated

adjacent to the house of P.W. 1 immediately on its eastern side. Therefore, it can be easily seen that P.W. 1, 2, the deceased and the accused are

not strangers among themselves, but they have been acquainted with each other for quite a long time.

The evidence of P.Ws. 1, 2 and 3 disclose the following : At 8.40 p.m. on 17-1-1996 when deceased 1 and 2 were talking with each other

sitting in front of the house. P.Ws. 1 and 2 were also there. At that time accused, 1 and 2 were abusing deceased No. 1 (According to P.W. 1

indirectly and according to P.W. 2 directly). This necessitated deceased No. 1 to return the abuses. In fact, the evidence of P.W. 3 shows that

there has been a wrody altercation between deceased No. 1 and the father of the accused it that time and when the wordy quarrel reached it''s

peak, the occurrence took place. The evidence discloses that after the exchange of abuses, accused 1 and 2 rushed into the house and came out

with M.Os. 1 and 2. Thereafter, first accused attacked the deceased No. 1, according to Ex. P. 1 on the right flank but, according to the evidence

available in Court on the left flank. When deceased No. 2 attempted to intervene, he was attacked by the first accused on the left flank. After

receiving the injuries, both the deceased fell down and thereafter, the second accused is stated to have indiscriminately cut the first deceased and

first accused is stated to have indiscriminately cut the second deceased. P.W. 3 who was coming by that side at that time also witnesses the entire

occurrence. His evidence goes one step further showing that he caught hold of the first accused and there was a slight altercation between them

resulting in an injury to the first accused.

Thereafter, P.W. 3 went to fetch a taxi and he was able to secure a taxi owned by P.W. 6 and also driven by him. The evidence of P.W. 6 is

to the effect that about 8.30 p.m. on 17-1-1996 P.W. 3 hire a taxi and he went to the Village and transported two injured people along with two

women together with P.W. 3 to the hospital. The injured reached the hospital, at about 9.15 p.m. on that night and they were pronounced dead as

could be seen from Ex. P. 16, the death intimation. Thereafter, P.W. 13 went to the hospital and recorded the statement from P.W. 1 who is the

complainant in this case. This complaint came to be registered at about 11 O'' clock in the police station and reached the Court at 1.15 a.m. in the

following morning P.W. 14 the Inspector of Police took up the investigation and he conducted inquest on deceased No. 1 on 18-1-1996 between

7 a.m. and 9 a.m. and Ex. P. 19 is the inquest report. Between 9.15 a.m. and 11-15 a.m. he conducted inquest on the dead body of deceased

No. 2 and the inquest report is Ex. P. 20. No doubt, P.Ws. 1, 2 and 3 were not examined during inquest. However, his evidence discloses that

from 11.30 a.m. to 2.00 p.m. on the same day, he examined all the witnesses which included P.Ws. 1, 2 and 3. The statement of P.Ws. 1, 2 and 3

recorded u/s 161 of the Code of Criminal procedure had reached the Court on 18-1-1996 itself. After sending the body for post-mortem. P.W.

14 arrested the accused at about 2.30 p.m. on the same day. At that time, the first accused had given a statement leading to the recovery of M.Os.

1 and 2 under Ex. P. 5 mahazar. He had also sent the first accused to the hospital on 19-1-1996 for the injuries noticed on his left palm. P.W. 8 is

the doctor who issued the accident register for the first accused.

P.W. 7 is the Doctor who did the post-mortem on both the dead bodies. The post-mortem report for deceased No. 1 is Ex. P. 7 and the

Post-mortem report of deceased No. 2 is Ex. P. 8. In Exs. P. 7 and P. 8 the Doctor had opined that the respective deceased would appear to

have died of multiple injuries with haemorrhage and shock. While giving evidence in Court, he would state that the injuries 1, 3 and 4 found on the

person of deceased No. 1 are necessarily fatal and injuries 1 and 3 found on the person deceased No. 2 are necessarily fatal. There was literally

no cross-examination on the evidence of this Doctor on this aspect. As already stated, the accused had denied the occurrence in toto while they

were question u/s 313(1)(b) of the Code of Criminal Procedure. On the broad facts stated by us, we applied our mind whether the prosecution

had proved it''s case beyond all reasonable doubt against the accused. We also applied our mind to the arguments advanced by the learned Senior

Counsel for the appellants stating that the prosecution had not proved its case beyond all reasonable doubt and therefore, they are entitled to

acquittal.

According to the prosecution case, the occurrence took place in front of the house of P.W. 1. In this context, the learned Senior Counsel

appearing for the appellants would bring to our notice Ex. P. 9, which is the accident register for the first accused wherein it is stated that the

occurrence had taken place in front of the house of the first accused and on this basis, the learned Senior Counsel wanted us to doubt the very

place of occurrence itself. However, in view of the established position as referred to above by us namely, the house of P.W. 1 and the accused

being situated adjacent to each other nothing much turns upon the question as to where exactly the occurrence took place. As could be seen from

Ex. P. 18, the houses are street houses facing the road and we are not able to find from the evidence available on record about the place of

occurrence being shifted significantly to any place.

We find from Ex. P. 18 that there is an electrical lamp post just in front of the house of P.W. 1 marked as Sl. No. 12 in the plan Ex. P. 18.

This electrical lamp post had no bulb and it is admitted by the prosecution themselves by observing so in Ex. P. 2, observation mahazar. P.W. 10

the Electrical Line Man of the Tamil Nadu Electricity Board having control over the area in question also speaks about the above mentioned fact.

He would also add that there was no power cut on the day of the occurrence in the village concerned.

From this fact, viz. that the electrical lamp post in front of the house of P.W. 1 did not have any bulb and therefore, there could have been no light,

it was argued by the learned Senior Counsel that the prosecution witnesses would not have been in a position to identify who the assailants are. In

this context, he pointed out that there is a material discrepancy as to the portion of the body where exactly deceased No. 1 received the injury at

the hands of the first accused as given in Ex. P. 1 and as stated by P.W. 1 in Court. This, according to the learned Senior Council, strengthens the

point that the prosecution witnesses would not have been in a position to identify the assailants. On the same line he would also argue that there is a

material discrepancy as to on which portion of the body of the deceased No. 2 the accused attacked. We are afraid that we cannot accept the

submission made by learned Senior Counsel in this regard for the following reasons. We have already noticed that the houses of P.W. 1 and that of

the accused are situated adjacent to each other. Therefore, being the residents of the same village, the prosecution party being acquainted with the

accused party is always on the cards and it cannot be said to be a remote possibility. The evidence discloses that there have been a dispute

regarding the passage between deceased No. 1 on the one hand and the father of the accused on the other hand. It is also in evidence that about

four months prior to the occurrence in question, deceased No. 1 is stated to have attacked the father of the accused which gave rise to a police

complaint lodged by the father of the accused against deceased No. 1. Therefore, the evidence on record clearly establishes the fact that P.Ws. 1

and 2 and the accused 1 and 2 are not strangers to each other. P.W. 1 claims that she had witnesses the occurrence from the light emanating from

the electrical lamp burning in her house. P.W. 2 claims that she witnesses the occurrence from the light emanating from the electrical bulb burning

not only in their house, but also in the house of the accused. They are not at all cross-examination on this aspect. However the appellants wanted

to take advantage of the evidence of P.W. 14, the Investigating Officer which would go to show that he had not noticed the presence of electrical

lamps inside the houses of the accused and the prosecution party in his plan Ex. P. 18. From this solitary circumstances, it cannot be necessarily

inferred that there was no electrical light at all either in the house of the prosecution witnesses or in the house of the accused. Therefore, we are of

the opinion that the presence of electrical light in the house of the prosecution witnesses and in the house of the accused stands fully established by

the evidence of P.Ws. 1 and 2. Even assuming for a moment without admitting that there are no lights at all at that time, in the respective houses of

the prosecution witness and the accused, yet, it may not be difficult for the prosecution witnesses to identify the accused and their involvement and

participation in the occurrence in view of their long acquaintance with each other. The mere fact that there is some discrepancy available in this

case from the averments contained in Ex. P. 1 on the one hand and in the evidence of P.W. 1 on the other hand as to the exact portion of the body

on which the deceased 1 and 2 received injuries at the hands of accused would not necessarily lead us to hold that the prosecution witnesses could

not have witnessed the occurrence. So far as deceased No. 2 is concerned, in Ex. P. 1 it is mentioned that the accused No. 1 attached with M.O.

1 on his left flank, Ex. P. 8 the post mortem certificate relating to deceased No. 1 shows that he has a cut injury on the left axille (armpit) under

these circumstances, we are not able to see any discrepancy in the case of the prosecution regarding the seat of the injury on the body deceased

No. 2. As far as deceased No. 1 is concerned, the allegation is Ex. P. 1 is that accused No. 1 attacked him with M.O. 1 on his right flank.

However Ex. P. 7 the post-mortem certificate of deceased No. 1 reveals that there is no corresponding injury and there is only an injury on the left

chest wall. The evidence of P.Ws. 1 and 2 in this case is in line with Ex. P. 7 on this aspect. In this context, we want to state that it is not possible,

for a witness, when more than one people participate in an occurrence, to precisely state the various overt acts of each of the accused and the

parts of the body where exactly the attack resulted in the injury. The observation of the witnesses regarding the attack on the victim by the

assailants would depend upon various aspects, viz., the place from where they are able to see the attack, the side towards which either the victim

or the assailant was facing and likewise. In these circumstances, we are not able to lead ourselves to hold that there is any material discrepancy in

the evidence of the prosecution witnesses when compared to Ex. P. 1 on the abovementioned aspect. Therefore, we reject the argument of

learned Senior Counsel.

The occurrence had taken place at about 8.40 p.m. on 17-1-1996. Ex. P. 16 shows that the injured victims were taken to the hospital at

about 9.15 p.m. on the same day and they were pronounced dead there. The evidence of P.W. 13 the Head Constable shows that he reached the

hospital at 9.45 p.m. on the same night and received Ex. P. 16 in the hospital itself. It can be seen from Ex. P. 1 that the statement of P.W. 1 was

recorded by P.W. 13 from 9.50 p.m. to 10.10 p.m. on the same day and the complaint was registered in his police station at 11 p.m. in the night.

Exs. P. 1 and P. 17, the Express F.I.R. reached the Court at 1.15 a.m. on the following morning. Therefore, it is clearly seen in this case that the

complaint was lodged with all promptitude and registered and in a very quick time reached the Court as well. The entire case of the prosecution is

spelt out in Ex. P. 1 and the averments contained therein stands fully corroborated by the evidence of P.Ws. 1 and 3. The statements of P.Ws. 1,

2 and 3 recorded u/s 161(3) of the Code of Criminal Procedure had also reached the Court on 18-1-1996 itself without any delay. It is no doubt

true that as pointed out by the learned Senior Counsel for the appellants P.W. 2 in her evidence had no were connected the second accused with

any of the overt acts stated to have been perpetrated on deceased No. 1 and deceased No. 2. On this basis, the learned Senior counsel argued

that she, being the most disinterested person, had chosen not to implicate the second accused at all and therefore, the benefit of the said evidence

should be given to the second accused though, P.Ws. 1 and 3 in their evidence implicate the second accused as well. This argument, on the face of

it looks very much appealing and impressive. But on a second consideration of the argument our minds refused to lean towards the second

accused for the following reason. As already stated, the complaint was lodged within a very quick time and the complaint and the Express F.I.R.

had reached the Court within two hours after it was registered Ex. P. 1 clearly implicates the second accused as well in the occurrence. The entire

narration of events in Ex. P. 1 stands fully corroborated by the evidence of P.Ws 1 and 3 against both the accused. P.W. 2 a]so in her evidences

speaks about the presence of accused 1 and 2 armed with M.Os. 1 and 2. From a reading of the evidence of P.W. 2 it appears to us that while

the evidence was recorded some omissions have crept in. But, we cannot substitute our inferences in that place. Therefore, we will have to take

that the evidence of P.W. 2 is correctly recorded. At the same time, we are not able to give much weight to the argument of learned Senior counsel

for the appellants that as P.W. 2 did not implicate the second accused, her evidence should be preferred to the evidence of P.Ws. 1 and 3 and

consequently acquit him. As already stated, the material records viz., Exs. P. 1 and P. 17 had reached the Court within two hours. The oral

evidence of P.Ws. 1 and 3 fully corroborate the entire narration in Ex. P. 1 and their evidence before the Court also clinchingly establish the

involvement of the second accused in the crime. No compelling reasons whatsoever had been pointed out to us why we should disbelieve the

evidence of P.Ws. 1 and 3 and believe the evidence of P.W. 2 alone the eliminate the second accused from the crime. If we do so, then we would

be acting against the over-whelming evidence available in this case against the second accused as well and it would also run against our judicial

conscience. We are also not able to accept the submission of the learned Senior Counsel that the evidence of P.Ws. 1 and 3 are highly interested

and therefore, in the context of evidence of P.W. 2, it should be disbelieved. We are fully aware that P.W. 1 is a highly interested witness and

therefore, we had extra caution, in our mind while analysing her evidence and we found at the end no reasons to disbelieve her at all. The other

submission made by the learned Senior Counsel in this regard regarding the non-detection of human blood in M.O. 2 also assumes no importance,

in view of the other overwhelming oral evidence available in this case against the second accused. Under these circumstances, we are of the firm

opinion that it is not possible to accept the submission made by the learned Senior Counsel on this point.

It is no doubt true that in Ex. P. 1 it is stated that the first accused attacked first with M.O. 1 on the right flank of deceased No. 1 and when

deceased No. 2 intervened, the first accused attacked him on his left flank. However, as already noticed by us, the post-mortem certificate Ex. P.

7 relating to deceased No. 1 shows that he had no injury on the right flank, but, among other injuries he had a cut injury on the left chest wall. The

oral evidence of P.Ws. 1, 2 and 3 is in line with the description of injury No. 1 as found in Ex. P. 7. We have already stated that the mere fact that

the witnesses are not able to precisely say and describe the injury inflicted on the victim, the evidence of the witnesses cannot be disregarded. The

power of observation of the witnesses will vary from individual to individual. The evidence available in this case clinchingly establishes the

involvement and participation of both the accused in the attack perpetrated by them on deceased Nos. 1 and 2. When this evidence is accepted

and no ground whatsoever has been made out in their cross-examination to disbelieve them, we are of the opinion that the discrepancy in the

description of the seat of the injury on Deceased No. 1 do not assume much importance on the facts of this case.

One other submission of the learned Senior Counsel for the appellants revolves on the question of non-explanation of the injury found on the

person of the first accused. It is established in this case from Ex. P. 9 the accident register read with the evidence of P.W. 8, the Doctor who

issued Ex. P. 9 that the first accused had received two injuries on his person. One is a cut injury 1 1/4"" length on the palmer aspect of left middle

finger and the other one is also a cut injury on the inner aspect of left big toe 1 1/2"" length. P.W. 8''s evidence shows that the injuries are simple in

nature. A big point is attempted to he made from the injuries found on the first accused stating that Ex. P. 1 and the evidence of P.Ws. 1 and 2 are

totally silent on this aspect and therefore, it must be inferred that the prosecution has suppressed the truth and it is false even at the origin itself. It is

no doubt true, as pointed out by the learned Senior counsel, that both in Ex. P. 1 and in the oral evidence of P.Ws. 1 and 2 no mention is found

regarding the injuries found on the first accused. The non-explanation of the injuries and its impact of the prosecution case will depend and be

decided on the facts of the each case. Unless the accused is shown to have sustained an injury in the course of the same transaction where the

victims also received the injury, the prosecution is under no legal obligation to explain. If on this settled principles the argument is analysed, then we

find that there are no merits in this argument. The evidence in this case do not show that the victims were armed with any weapons and used the

same when they were attacked by accused 1 and 2 with M.Os. 1 and 2. When this being the clear position as could be seen from the evidence,

then how it can be said, we pose the question to ourselves, that the first accused received injury in the same transaction. The evidence of P.W. 3

shows that after the attack on deceased No. 1 and No. 2 were completed by the accused, he caught hold of the first accused and in that course

each was pushing the other and at that time, the weapon in his hand fell down. The first accused sustained two injuries only at that time. In these

circumstances, we accept the submission made by the learned Public Prosecutor for the State that the prosecution had explained, though they are

not legally bound to do so, the injuries found on the first accused and the failure of P.Ws 1 and 2 to state so in their evidence and the non-

mentioning of the injury on the first accused in Ex. P. 1 could not and would not tilt the case in favour of the accused. We have already noticed that

the injuries are found to be simple and on top of this it is seen from the record that the first accused in his statement recorded u/s 313 of the Code

of Criminal Procedure denied that he had received any injury. Not content with that, he would say that he was taken to the hospital and the Doctor

was influenced to give a certificate for which the Doctor refused. On a overall consideration of the entire materials available on record, we are of

the opinion that the injuries found on the first accused had been fully explained and the failure on the part of the other witnesses to speak about the

same would not in any way tilt the case in of the accused.

The next argument of learned Senior Counsel based on the injury found on the person of the first accused that the accused acted in self-

defence also remains to be considered by us. The learned-Senior Counsel around that though. The plea of self-defence is not raised by the

accused in the course of the trial, yet, if the evidence available on record give an indication to that end, then the court is not without power to take

upon the issue by itself and decide one way or the other. We have no quarrel with the preposition of law projected by the learned Senior Counsel

for the appellants. He would also argue in this regard that actual causing of hurt on the persons of the accused is not necessary, to invoke the

theory of self defence and a reasonable apprehension in his mind of serious threat to the safety is enough. Once again, with respect to the learned

Senior counsel we agree with him. But, the question to be decided in this case is whether from the facts available in this case, the theory of self-

defence can be worked out and decided one way or the other. There is no evidence to show in this case that there was any serious threat, much

less threat of any nature to the safety of the accused at any point of time when the victims were attacked by the accused. We have already found

that the first accused had not sustained any injury in the course of the same transaction when victims 1 and 2 sustained the injuries. As already

stated there is no evidence in this case to show that deceased No. 1 and No. 2, while they were alive were armed and attempted to attack the

accused. When this position is clear, we are of the opinion that it is not possible to invoke the theory of the accused acting in self defence and

committing the crime. Therefore, this submission made on behalf of the accused is also rejected.

There is a mention in Ex. P. 1 about the dispute in existence between the accused family on the one hand and the prosecution family on the

other hand regarding the passage situated at the back of their houses and that there had been often wordy quarrels between them leading to

enmity. P.W. 1 in her evidence also speaks about the dispute between the two families regarding the passage P.W. 2 is also sure about this

position. The evidence of P.W. 1 also discloses that at the time and on the date of the occurrence. The accused were standing in front of their

houses and were indirectly scolding deceased No. 1. P.W. 2 also in her evidence states that accused 1 and 2 were scolding deceased No. 1

referring to his name. P.W. 3 in his evidence states that while he was coming by the side of the house of deceased No. 1. He noticed a wordy

quarrel between the family of deceased No. 1 on the one hand and the father of the accused on the other hand and that when the wordy quarrel

reached the peak, the first accused went to his house and brought M.O. 1. These pieces of evidence referred to above show that immediately

prior to the attack on deceased No. 1 and No. 2, the accused were standing in front of the house of deceased No. 1 and scolding him (according

to P.W. 1 indirectly and according to P.W. 2 directly) and that the wordy quarrel between deceased No. 1 on the one hand and the father of the

accused on the other hand reached the peak according to P.W. 3. From these facts, learned Senior Counsel argued that the accused acted while

they were deprived of the power of self control by grave and sudden provocation and therefore, the benefit of exception 1 to Section 300 of the

Indian Penal Code should be given to them.

We have carefully considered this submission as well. Before proceeding to decide the merits or otherwise of the submission, we want to make

it clear that this exception will not be available to an offender if the provocation is not sought for or voluntarily provoked by him as an excuse for

killing or doing harm to any person. In this case, the evidence on record do not go to show that neither the deceased P.Ws. 1 and 2 were the

cause by themselves for provoking the accused. On the other hand, the evidence shows that it is the accused who started the chain of events at the

crucial time by standing in front of the house of deceased No. 1 and abusing him. In other words, it is they started the entire episode and thereby

invited deceased No. 1 to respond. Had not the accused conducted themselves in such a manner on the night of the incident day, then there would

have been no cause for the present case at all. There is no evidence to show as to the exact day on which the parties last went into the controversy

regarding the passage. There is also no evidence in this case to show that at any point of time on 17-1-1996 prior to the incident there was an

occasion for the prosecution party and the accused party coming into conflict with reference to the passage dispute. Therefore, we are satisfied

that it is the accused who started the game and therefore, the first proviso to exception 1 is clearly attracted to this case. Under these

circumstances we hold that the accused cannot take advantage of their own wrong as stated above and yet, claim the benefit of the exception.

Even otherwise, we are of the opinion that in the absence of any evidence to show as to what exactly the abuses hurled by one against the other, it

is not possible to hold that the accused were deprived of their power of self-control by grave and sudden provocation. Even on this score, we

reject the submission made by the learned Senior Counsel.

One other point raised by the learned Senior Counsel appearing for the appellants which we have not enumerated earlier is as follows :-

According to the learned Senior Counsel P.Ws. 1, 2 and 3, though are projected as eye-witnesses, yet they are not examined during the inquests

conducted by P.W. 14. This statement is true. From this, the learned Senior Counsel argued that the failure on the part of P.W. 14 to examine

P.Ws. 1, 2 and 3 during the inquests conducted by him would only lead to the irresistible conclusion that P.Ws. 1, 2 and 3 would not have been

eye-witnesses at all. Whether the non-examination of the eye-witnesses during the inquest would be fatal or not is a matter to be decided upon the

facts of each case. There cannot be an uniform rule that unless the witnesses projected as eye-witnesses are examined during inquest, their

evidence cannot be accepted, then it will have a far reaching effect and consequence. What all we wish to state is if the presence of the eye-

witnesses at the scence of occurrence and they having seen the occurrence is otherwise satisfactorily established, then, their non-examination

during the inquest cannot be treated as fatal and on that ground alone the entire prosecution case cannot be thrown out. We have already noticed

that the inquest on the two dead bodies commenced at the mortuary in the hospital at 7 a.m. and ended at 11.15 a.m. on 18-1-1996. At 11.30

a.m. the witnesses were examined there itself. Besides this, the presence of P.Ws. 1, 2 and 3 at the scene of occurrence is established by the

independent evidence of the taxi driver examined in this case as P.W. 6. P.W. 6 had categorically stated in his evidence that P.W. 3 came and

hired a taxi which made him to go to the scene village from where he transported two injured persons and two ladies to the hospital. The only

ladies available at the scene of occurrence, as could seen from the evidence, is P.Ws. 1 and 2 only and none else. Besides this P.W. 1 had given

the complaint at 10.10 p.m. on 17-1-1996 itself in which she has clearly mentioned the names of P.Ws. 2 and 3, as eye-witnesses. Ex. P. 1 along

with Ex. P. 17 had reached the Court it 1.15 a.m. even before the investigation commenced in this case at about 5 a.m. on 18-1-1996, as spoken

to by P.W. 14. Therefore, we are of the opinion that there is overwhelming evidence in this case to establish the presence of P.Ws. 1, 2 and 3 at

the scene of occurrence and they having witnesses the occurrence itself. Under these circumstances, we are not able to give much weight to the

fact that P.Ws. 1, 2 and 3 were not examined during the inquests.

Learned Senior Counsel for the appellants cited the judgment of the Supreme Court in Partap Vs. The State of Uttar Pradesh, . In that

judgment the following Principles have been laid down (Paras 12 and 30) :

The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a

reasonable doubt, the accused can discharge his onus by establishing a mere preponderance if probability.

Provisions of Section 105 of the Evidence Act. Which are applicable in such cases, contain what are really two kinds of burden on the accused

who sets up an exception : firstly, there is the onus laid down of proving the existence of circumstances ""bringing the case within any of the General

Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law

defining the offence"" : and, secondly, there is the burden of introducing or showing evidence which results from the last part of the provision which

says that ""the Court shall presume the absence of such circumstances."" The effect of this obligatory presumption at the end of Section 105 of the

Evidence Act is that the Court must start by assuming that no facts exist which could be taken into considering the plea of self defence as an

exception to the criminal liability which would otherwise be there. But, when both sides have led evidence of their respective versions, the accused

can show, from any evidence on the record, ""whether tendered by the prosecution or the defence, that the mandatory presumption is removed.

The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence

to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be

enough for an acquittal.

On the basis of this judgment, the learned Senior Counsel submitted that the accused in this case had discharged their burden by establishing

the mere preponderance of probability and therefore, this Court should not weigh the case of the defence with a golden scale and it is enough if

circumstances establish a mere preponderance of probability in favour of the accused. We have carefully applied our mind to the submissions

made by the learned Senior counsel as stated above and we are not able to agree with him on this submission. We have already found that the

injury on the person of the first accused had been explained by P.W. 3 and that injury was not sustained in the same transaction when deceased

No. 1 and deceased No. 2 were attacked. We are fully aware of the position that though the accused have not specifically taken the plea of self

defence, yet, the Court can always go into the question if the materials available on record indicate such a defence. We searched in vain to find out

whether there are any materials in favour of the accused to extend the principle of self defence is this case and we found no materials at all. We

have given enough reasons in the earlier paragraphs of this judgment as to how the theory of self defence is not available in this case to the

accused.

Under these circumstances, we are of the clear opinion that the prosecution had proved the guilty of the accused beyond all reasonable doubt.

The evidence discloses that the first accused attacked once on the left flank of deceased No. 1 and then proceeded to attack deceased No. 2 and

caused as many as six injuries which include a cut injury on the left axille (armpit) as far as the second accused is concerned, after the first accused

inflicted an injury on deceased No. 1 he indiscriminately cut deceased No. 1. There are totally seven injuries on the person of deceased No. 1 out

of which the first injury stands attributed to the first accused. The evidence of the Doctor viz., P.W. 7, who did the post-mortem on both the dead

bodies, shows that injury Nos. 1, 3 and 4 on deceased No. 1 would cause instantaneous death and injury Nos. 1 and 3 on the person of deceased

No. 2 would cause instantaneous death. As already noticed by us, both the accused have a hand in causing the above referred to fatal injuries on

the body of deceased No. 1 and deceased No. 2. Under these circumstances, the conviction of the first accused for an offence u/s 302 (2 counts)

of the Indian Penal Code and the second accused for an offence u/s 302 of the Indian Penal Code stands fully established. We are not able to see

any compelling reasons to interfere with the finding of guilt rendered by the learned Sessions Judge nor is the learned Senior Counsel appearing for

the appellants is able to point out any such infirmity or illegality. Under these circumstances, we hold that the learned Sessions Judge, had come to

the correct conclusion in convicting the appellants for the offence above referred to.

The last question that remains to be considered by us is about the propriety of the death sentence awarded to the first accused. The Supreme

Court of India in a decision in Shankar v. State of T.N. (1994 SCC (Crl.) 1252 : 1994 CLJ 3071 Known as Auto Shankar case had laid down

the Principle to be borne in mind in deciding to award the appropriate sentence in cases of this type (Para 45 of Cri LJ).

The choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular

circumstances of that case and the Court has to exercise its discretion judicially and on well recognised principles after balancing all the mitigating

and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime which renders

sentence of imprisonment of life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be

so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate. The sentence of death should

be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstance. What circumstances bring a

particular case under the category of rarest cases vary from case to case depending upon the nature of the crime, weapons used and the manner in

which it is perpetrated etc.

In another decision in Surja Ram Vs. State of Rajasthan, the Supreme Court has laid down the following principle in the context of deciding, to

avoid the death sentence or not (para 18 to 20);

It has been very aptly indicated in Dennis Conical McGautha v. State of California (1971) 402 US 183 : 28 L Ed. 2d 711, that no formula of a

full proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of

circumstances that may affect the gravity of the crime of murder. In the absence of any basis for reasonable criteria to correctly assess various

circumstances germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in

which such judgment may be suitably distinguished. In Shankar @ Gauri Shankar and Others Vs. State of Tamil Nadu, , this Court has indicated

that the choice as to which one of the two punishments provided for murder is a proper one in a given case will depend upon the particular

circumstances of that case and the Court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating

or aggravating circumstances of the case.

In Jashubha Bharatsinh Gohil and Others Vs. State of Gujarat, , it has been held by this Court that in the matter of death sentence, the Courts are

required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to

deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the

sentencing system as to impose such sentence which reflects the conscience of the Society and the sentencing process has to be stern where it

should be.

We have carefully applied our mind to the facts available in this case in deciding the propriety of death sentence awarded to the first accused.

In this context, we have noticed the following facts. The deceased and the accused are adjacent neighbours in a village, there is a property dispute

between the two families for quite a long time. Four months prior to the occurrence deceased No. 1 attacked the father of the accused resulting in

a police action against deceased No. 1. There is no reported incident between the two groups after that assault by deceased No. 1 on the father of

the accused on the date of occurrence, the accused were standing in front of the house of the deceased and were standing in front of the house of

the deceased and were abusing deceased No. 1 (as already referred to according to one witness directly and according to the other witness

indirectly). Ex. P. 1 reveals that deceased No. 1 returned the verbal abuses; what exactly the verbal abuses hurled against deceased No. 1 which

was returned by him, there is no clear evidence. Deceased No. 1 had questioned the accused according to P.W. 1''s evidence as to why they are

abusing him; P.W. 2 states that deceased No. 1 also abused the accused. P.W. 3''s evidence shows that there was a wordy quarrel between the

family of deceased No. 1 on the one hand and the father of the accused on the other hand and when the heated exchange of words reached the

peak; the accused ran inside the house and brought the weapon. While saying so, we do not say that the accused have any grave or sudden

provocation. It the absence of what exactly the words uttered by one group against the other, we are not inclined to hold, as already stated that the

accused have any grave and sudden provocation resulting in they being deprived of there self-control. The character and antecedent of the accused

do not appear to be a menace to the society and there is nothing uncommon about the crime which had taken place in this case. The altercation as

it originally started was between deceased No. 1 on the one hand and the accused or their father on the other hand. Deceased No. 2 did not have

any role to play in that and when he came to the rescue of his father he was also attacked. We are of the firm view that by allowing the first

appellant to escape death under the impugned judgment, the society is not likely to be exposed to any peril or menace. Under these circumstances,

taking an overall view of the picture and the totality of the circumstance, we feel that the sentence of death imposed on the first appellant is wholly

improper and therefore, we set aside the judgment dated 20-1-1997 in S.C. No. 75 of 1996 on the file of the Principal Sessions Judge,

Kanyakumari Division, Nagercoil so far as it relates to imposing death sentence on the first appellant and instead the sentence of death is altered

into one of life imprisonment for the first accused. Thus, our conclusion is the judgment of the learned Sessions Judge, referred to above do not

suffer from any illegality or error and it stands confirmed. However, as stated above, the sentence of death imposed on the first appellant alone is

altered and modified into one of life imprisonment. The judgment of the learned Sessions Judge impugned in this appeal, so far as the second

appellant is concerned, stands confirmed. Consequently, the appeal fails and it is dismissed. The referred trial is ordered in the above terms.

Order accordingly.