In Re: K. Palani Moopan

Panchapakesa Ayyar, J.—This is an appeal filed by Palani Moopan, the fourth accused in S. C. No. 64 of 1950 on the file of the Additional

Sessions Judge, Coimbatore. He is a boy aged 19 years and has been convicted by the learned Additional Sessions Judge u/s 304, paragraph 2,

Indian Penal Code, while acquitting him of the offence u/s 302, I.P.C., and sentenced to undergo rigorous imprisonment for ten years. There were

four other accused in the case. They have all been acquitted.

The facts are briefly these. The appellant and the deceased Palani Moopan were agnates and ''pangalis.'' Owing to misunderstandings over a

lease of land and a manure pit there was a sudden and unexpected quarrel just at sunset time on 1st February 1950 between the five accused on

one side and the deceased and P.W. 5 on the other and all the five accused are said to have fallen upon P.W. 6 and the deceased. According to

the first information report, the dying declaration and the evidence of P.Ws. 1, 2, 3, 5 and 7, this appellant stabbed the deceased, in the course of

the quarrel, on the right side of his abdomen with a spear. The deceased did not die at once but survived to state that it was this appellant that

stabbed him thus and to give a dying declaration to that effect. He died on the next day (2nd February 1950.) The lower Court, after discussing the

evidence, found the evidence not to be satisfactory as regards the other four accused and to be satisfactory regarding the offence u/s 304,

paragraph 2, I.P.O., regarding this appellant, and, so convicted and sentenced him. It did not consider it fit to apply Section 562, Criminal

Procedure Code to this appellant, and does not seem to have considered the applicability of Section 8 of the Borstal Schools Act.

I have perused the entire records and heard the learned Counsel for the appellant and the learned Public Prosecutor ''contra.'' The learned

Counsel for the appellant raised three main contentions. The first was that on much the same evidence the lower Court has acquitted the other four

accused and so should have acquitted this appellant also, at least by giving him the benefit of the doubt. But, after perusing the evidence, I am of

opinion that the evidence against this appellant was far more consistent and satisfactory, and, indeed, proved conclusively that it was the appellant

who gave that fatal stab to the deceased, whereas the evidence regarding the other four accused was not at all consistent. I cannot accept the

argument of the learned Counsel for the appellant that simply because there are some minor discrepancies in the evidence whether the beatings by

the other accused preceded the stabbing by this appellant or the stabbing by this appellant preceded the beatings by the other accused, and,

because of the observation of the lower Court that it was not satisfied with the evidence of some of the prosecution witnesses who implicated this

appellant, but was satisfied with the evidence of other prosecution witnesses who implicated him, the appellant should be given the benefit of the

doubt and acquitted. Such minor discrepancies on ''immaterial collatera'' matters exist in almost every criminal case of this description. When they

do not go to the root of the case, as here, and do not affect the credibility of the evidence regarding the fatal stab administered to the deceased by

this appellant, there is no need to worry over much with those minor discrepancies. Nor can the learned Counsel for the appellant rely on the

remarks of the lower Court regarding the credibility of some of the prosecution witnesses and attack the remarks of the lower Court regarding the

reliability of the other prosecution witnesses without proving, from the original records, that the prosecution witnesses attacked by him and believed

in by the lower Court are really persons unworthy of credence. This Court has got full seisin of the matter, in the appeal, and is not bound to

accept every remark of the lower Court regarding the credibility or otherwise of the witnesses, though, naturally, it will not distrust a finding of fact

arrived at by the lower Court which saw the witnesses and observed their demeanour. In this case, I see no reason whatever to disbelieve the

evidence of P.Ws. 1, 2, 3, 5 and 7 who implicate the appellant regarding this fatal stab on the deceased with a spear. That evidence is

corroborated by the statement of the deceased, who had no motive to implicate the appellant falsely in his complaint, and also by his dying

declaration, and the medical evidence. That the deceased spoke to some spear injury inflicted on his son by the fifth accused is no ground for

disbelieving his statement regarding this appellant. It is evident that a man attacked by five people, and fatally stabbed, and suffering terribly, may

observe closely the person who stabs him, and be correct about it, while his observation of a stabbing at about the same time of another individual

may be defective and inaccurate. He might have seen the fifth accused aim with his spear at his son and might have thought that his son had also

been injured, whereas, the blow might have escaped the son. The important fact to remember is that the deceased had no enmity towards the

appellant, and that his condition, after receiving the fatal injury, would have been so precarious that his memory cannot be expected to be precise

regarding all the details he has observed about the occurrences that day. That will account for the discrepancies mentioned above.

P.W. 1 is the wife of the deceased. P.W. 2, is the son of the deceased. P.W. 3 Is the daughter of the deceased. None of these three also was

alleged to have any motive to perjure against the appellant. P.W. 5 alone was said to have some enmity. P.W. 7 was the servant of P.W. 3''s

husband, and not of P.W. 5, and so must be held to have no motive himself to Implicate the appellant falsely. What is more, there was no

particular motive for any one to implicate this appellant, a young boy, unnecessarily, leaving out the real culprit, when there was sufficient daylight

to observe the real culprit. It was not also a case of rioting by a huge mob, there being only five persons involved in the entire attack on 2 or 3

persons. The story regarding the appellant''s dealing the fatal stab on the deceased has been consistent from the very start to the very last, and has

not been shaken in the least in cross-examination. We are not concerned here with the discrepancies regarding the beatings administered to the

deceased by the other four accused who have been acquitted, or regarding the injuries received by some of the accused and some of the

prosecution witnesses.

The next contention of the learned Counsel is that the conviction u/s 304, paragraph 2, I.P.C., would not be Justified, in the circumstances of the

case, even if this appellant had caused the fatal injury, as there is nothing to show that he had a motive or intention to ''kill'' the deceased, and that it

may be that he wanted to deal a simple Injury but that it resulted In a fatal injury like this. I cannot agree. Every man must be presumed to intend

the natural consequence of his act. So, while there is no need to infer an intention on the part of the appellant to ''murder'' the deceased, an offence

u/s 304, paragraph 2, I.P.C., would be clearly proved against him, in these circumstances, where a fatal injury was inflicted by this appellant on a

vital portion of the deceased''s body, the abdomen, with a deadly weapon, a spear, and the blow must have been dealt with terrific force Judging

from the nature of the injury. The exceptional case referred to by the learned Counsel for the appellant will not apply here. That will be the case

where a man Intends to inflict a stab on the leg of another, but by ''misfortune'', the stab falls on the stomach or other vital spot of the other by the

other turning a somersault or making an unexpected movement at the psychological moment and getting the stab in that vital spot. In this case, no

such circumstance exists. So, the conviction must only be u/s 304, paragraph 2, I.P.C, I confirm the conviction of the appellant by the lower Court.

The learned Counsel for the appellant next urged that this was a fit case for applying Section 8 of the Borstal Schools Act to this appellant, who

was only 18 or 19 years old, and who was proved by his act itself to be of criminal tendencies and to have been associated with contankerous

persons. I agree. In two cases decided by Benches of this Court, viz., ''The Public Prosecutor v. Nagappa Pujary'' 1948 2 M.L.J. 1530 and In

Re: Chelliah alias Mariappa Kudumban, to which latter case I too was a party, it has been held that the words ""criminal tendencies"" occurring in

Section 8 of the Madras Borstal Schools Act should not be given a narrow Interpretation and that Section 8 should be interpreted to mean that

whenever an adolescent offender has been convicted of an offence he should ordinarily be given the advantage of being put in the Borstal School

so that by the training therein he should become a useful citizen of the country, and that a ''criminal tendency"" does not manifest itself only in acts

involving dishonesty, such as theft or cheating, and that it can be inferred also In a person who, owing to lack of self-control or as a result of his

environment or association, is unable to control himself and commits an offence of either grievous hurt or homicide, by using a deadly weapon

without regard to the consequences for a ''very petty reason'' as in this case.

In the result, I set aside the sentence of imprisonment for ten years awarded on this appellant by the lower Court, and substitute, instead an

order of detention in the Borstal School, Palamcottah, for a period of three years from the date of this order, and, for this purpose declare the age

of this appellant to be exactly 19 today.