In Re: Rekkan alias Rakka Perumal and Others

Singaravelu, J.—These are three appeals filed against the same judgment of the learned Additional Sessions Judge, Tiruchirapalli convicting

the four appellants under S. 302 read with S. 34 of the Indian Penal Code and sentencing each of them to imprisonment for life. Criminal Appeal

No. 458 of 1982 is filed by the 3rd accused. Criminal Appeal No. 116 of 1983 is filed by the 4th accused while Criminal Appeal No. 122 of

1983 is filed by accused 1 and 2. The prosecution case is that all these four accused, in pursuance of a common intention, cut one Stephen on the

afternoon of 13-7-1980 with ''Aruvals'' and caused his instantaneous death at Thoppu Padithurai in Uyyakkondan channel in Trichy town.

The accused, deceased Stephen and the eye witnesses P.Ws. 1 to 4 are all slum dwellers and labourers patronising the illicit arrack shop in that

locality. About a year prior to the occurrence, one Govindaraj, the elder brother of the 4th accused, stabbed one Arogyaraj, a close associate of

deceased Stephen, and this resulted in a police case against the assailant Govindaraj and others. However, the friends of Arogyaraj including

Stephen took the law into their own hands and stabbed Govindaraj in return four days after the prior incident. Therefore, there were two groups

one led by deceased Stephen and the other by Govindaraj, brother of the 4th accused, and each of them was trying to assault the other whenever

occasion arose. The criminal case against Arogyaraj and deceased Stephen was posted for hearing on 14-7-1980. On 13-7-1980 at about 2.30

p.m., deceased Stephen, his brother Emmanuel and P.W. 5 went to contact their lawyer and gave him instructions for the hearing on the next day.

They sent word to one Angamuthu to come and join them to go the advocate''s house and they were waiting for Angamuthu at Thoppu Padithurai

in Uyyakkendan Channel. On the northern bank of the channel, there was the arrack shop and there were number of edible shops around the

same. P.W. 1 Veeramalai wanted to have a drink and therefore got into the dry channel and was going to the other bank and at that time all the

four accused came there with ''Aruvals'' to attack Stephen. On seeing the accused approaching them with weapons, Stephen got into the channel

and tried to escape. But, the 1st accused came running with an ''Aruval'' and slashed him on his right leg above the ankle with the ''Aruval''. The 1st

accused followed with a second cut on the back of the head of Stephen. The 1st accused then gave some more cuts on either side of the head, and

when the victim fell down, he pecked him with the ''Aruval'' on the forearm. At the same time, the 4th accused cut Stephen on his head and on the

right palm while the 2nd accused pecked him with his ''Aruval'' on his back and other places. The towel of the 2nd accused fell down at the place

of occurrence. The 3rd accused cut Stephen on his thing and back with an ''Aruval'' and accused 1 and 4 grave some more cuts on the victim.

P.W. 1 raised a big alarm and tried to scare them away, but the accused drove him away. The people at the arrack shop threw some stones at the

accused as a result of which all the accused ran away. P.Ws. 2 to 4 also witnessed the occurrence which took place at about 3.30 p.m.

P.W. 1 then ran to the Palakkarai Police Station and gave a report at 4.00 p.m. under Ex. P-1 before the Sub-Inspector (P.W. 10). P.W. 10

registered it as an offence under S. 307 of the Indian Penal Code and rushed to the place of occurrence which is nearby and he saw Stephen dead

with number of injuries, near Thoppu Padithurai. Thereupon, he altered the crime to one under s. 302 of the Indian Penal Code and sent express

report. P.W. 11, the Inspector of Police, on receiving intimation, came to the place of occurrence at 4.30 p.m. and prepared an observation

mahazar Ex. P-2 and recovered the blood stained earth M.O. 1, the towel M.O. 2, the stones M.O. 3 series, etc. He prepared a plan Ex. P-10.

He then conducted the inquest and examined witnesses. Ex. P-11 is the inquest report. He then sent the dead body of Stephen for post-mortem

examination.

P.W. 7, the Medical Officer at the Government Headquarters Hospital at Tiruchirapalli conducted autopsy on the body of deceased Stephen

and found the following injuries :-

An incised wound 10 cm. x 3 cm. x bone deep on the left parietal region 3 cms. near the midline on the head. A linear fracture of left parietal

bone 8 cm. long is present.

An incised wound 7 cm. x 3 cm. bone deep on the right pariet occipital region behind the right car.

An incised wound 7 cm. x 2 cm. x bone deep on the left ear upper end extending from the mastoid bone to zygomatic arch left.

An incised wound 6 cm. x 3 cm. x 4cm. on the middle of left arm inner aspect.

Two incised wounds one below the other 3 cms. x 2 cms. x 2 cms. each on the back of middle left upper arm.

An incised wound 5 cm. x 3 cm. x bone deep on the back of left elbow.

An oblique incised wound 7 cm. x 4 cm. x bone deep on the middle of left forearm extending from the outer aspect to the front lateral aspect.

Fracture of radius is seen.

An incised wound 6 cm. x 4 cm. x bone deep on the palmar aspect of right hand extending from the base of right thumb to the base of 5th

metacarpal bone. All tenders, muscles, nerves and vessels were cut.

A penetrating stab wound 5 cm. x 2 cm. and entering the thoracic cavity left on the back of chest wall left side 2 cms. below the lower end of

scapula at the level of left 8th rib.

An incised wound on the back of the chest wall left 1 cm. near the midline at the level of the 5th thoracic spine 5 cm. x 2 cm. x 2 cm.

An incised wound on the left side on the back of chest wall 1 cm. below the external injury No. 10 2 cm. x 2 cm. x 2 cm.

An incised wound 4 cm. x 2 cm. x 2 cm. on the left side of the chest wall at the level of 8th rib.

An incised wound 3 cm. x 1 cm. x 2 cm. 1 cm. below the external injury No. 12.

A penetrating stab wound 5 cm. x 2 cm. x 2 cm. entering into thoracic cavity right on the right side of the chest back 2 cm. from the middle at

the level of 8th rib.

An incised wound 3 cm. x 2 cm. x 2 cm. on the right side back of chest wall 3 cm. from midline at the level of 10th rib.

An incised wound 2 cm. x 1 cm. x 1 cm. 1 cm. above and 1 cm. lateral to injury No. 15.

An incised wound 7 cm. x 3 cm. x 4 cm. on the left thigh lateral aspect on upper 1/3 rd.

An incised wound 6 cm. x 3 cm. x bone deep on the inner aspect of right leg 3 cm. above the right ankle.

INTERNAL INJURIES :-

On dissecting external injury No. 9, the wound enters into the left thoracic cavity and penetrating the back of the left lower lobe 2 cm. x 1 cm. x 1

cm. (On dissecting injury No. 14, the wound enters into the right thoracic cavity and penetrating the back of right lower lobe 2 cm. x 1 cm. x 1

cm.)

On dissecting injury No. 1 a linear fracture of left parietal bone about 8 cm. long was present.

The doctor opined that death would have occurred at about 20 to 24 hours prior to the autopsy. Ex. P-5 is the post-mortem certificate.

When the police searched for the accused, they were all absconding and their whereabouts were not known. They surrendered before the

Magistrate Courts at Thanjavur and Periyar Districts after two weeks. The blood-stained articles were sent to the Chemical Examiner through

Court and Exs.P-8 and P-9 are respectively the reports from the Chemical Examiner and the Serologist. After completing investigation, charge-

sheet was filed against all the accused under S. 302 read with S. 34 of the Indian Penal Code.

When questioned under S. 313 of the Criminal Procedure Code all the accused denied the offence and the 1st accused filed a written statement.

No witnesses were examined on the side of the accused. The learned Sessions judge accepted the case of the prosecution and found all the

accused guilty under S. 302 read with S. 34 of the Indian Penal Code and sentenced each of them to imprisonment for life.

Four witnesses have given direct evidence regarding the occurrence and they are P.Ws. 1 to 4. P.W. 1 is a resident of the same place and he is

a close associate of Stephen (deceased). A criminal case preferred by the brother of the 4th accused was pending against the deceased Stephen

and his brother and it was posted to 14-7-1980. Therefore, according to P.W. 1, he and deceased Stephen wanted to meet the lawyer at

Thiruverambur on the afternoon of 13-7-1980 and they were waiting for another friend at Thoppu Padithurai near an arrack shop. At that time,

P.W. 1 says, all the four accused rushed towards them and the 1st accused cut Stephen on his right calf with an ''Aruval'' and then on the left and

right side back of the head. The 1st accused then pecked Stephen on his left forehand with the tip of the ''Aruval'' and when the victim fell down,

all the four accused indiscriminately cut him with the respective ''Aruvals''. P.W. 1 further says that he was shocked and he was also chased by the

four accused and that he ran straight to Palakkarai Police Station which is about a mile from the place of occurrence and laid the First Information

Report Ex. P-1. It was elicited from this witness that he is not only a close associate of Stephen, but also a partisan of his brother''s group. P.Ws.

2 and 3 are elderly women who are selling edibles near the illicit arrack shop near the Padithurai. Both of them have stated that these four accused

cut Stephen with ''Aruvals''. P.W. 2 further admitted that she did not know these four accused prior to the date of occurrence. But P.W. 3 would

state that the knew the 1st accused alone and did not know the other three accused previously. Their evidence is only general and to the effect that

all the four accused cut the deceased person indiscriminately with ''Aruvals'' at the place of occurrence. The lower Court has discarded the

evidence of P.Ws. 2 and 3 since no identification parade was held to enable those witnesses to identify the accused before the Magistrate.

Learned counsel for the appellants argued that the evidence of these two women cannot be safely accepted since they were least interested in the

quarrel or the assault that took place between strangers at some distance from their edible shop. It is also stated that they would not have cared to

take serious note of it since they were more interested in their business of selling the edibles.

The last witness to speak to the occurrence is P.W. 4 who is also a close friend of deceased Stephen. He would state that he visited the arrack

shop as usual on the Sunday afternoon (the occurrence itself was on a Sunday at about 3.00 p.m.) and that at that time he saw all the four accused

cutting the deceased Stephen indiscriminately and then running away from the place. He knew accused 1 to 3 previously. The next witness

connecting the accused with the crime is P.W. 5, who is a resident of the same locality and who knows all the four accused. According to him, just

half an hour prior to the occurrence, he saw all the four accused assembled together and at that time P.W. 1 and deceased Stephen came that side.

This witness says that he had heard a conversation among the accused themselves that they must adult Stephen. Within a short time afterwards he

heard that Stephen had been murdered at Thoppu Padithurai.

The lower Court has accepted the evidence of P.Ws. 1, 4, and 5 and discarded the evidence of P.Ws. 2 and 3. The evidence of P.Ws. 1 and

4, though they are partisan witnesses, is entitled to acceptance, since no independent witness can be expected at the place of occurrence which is

near an illicit arrack shop and that too in a interior and isolated place like a canal bank on the outskirts. It is also important to note that it was a

summer month and the evidence is that there was no water in the canal. Therefore, only such persons who visit the illicit arrack shop can be

expected to speak to the occurrence. We do not think that the evidence of P.Ws. 1 and 4 could be rejected summarily just because they are good

friends of deceased Stephen. Further, the evidence of P.W. 4 is corroborated by Ex. P-1 the F.I.R. laid by P.W. 1 within half an hour after the

occurrence, i.e., at 4.00 p.m. at the Palakkarai Police Station. It is very important to note that the printed form of the F.I.R. reached the local

Magistrate at 5.00 p.m. on the same day and he has initialed it. Now, the occurrence was at about 3.30 p.m. The F.I.R. was laid at 4.00 p.m. and

the magistrate has received the F.I.R. at 5.00 p.m. Therefore, there was no time or scope for any one to fabricate the case against the accused. In

this earliest statement under Ex. P-1, P.W. 1 has stated what all he has stated before the trial Court and nothing more. This first information report

contains a wealth of details regarding the occurrence and nothing is left out. All the accused have been mentioned and the presence of P.W. 3

Rukmani is also mentioned there. Therefore, the F.I.R. Ex. P1 corroborates the evidence of P.W. 1.

The medical evidence also fully supports the evidence of the occurrence witnesses. Ex. P-5 is the post mortem certificate and it discloses 18

injuries on the deceased with three internal injuries. These injuries show that the victim was cut right and left and also on the head and on the limbs.

Almost all of them are incised wounds except injuries Nos. 9 and 14 which are penetrating stab wounds on the chest and the back. The ocular

evidence is that all the four accused armed with ''Aruvals'' cut Stephen indiscriminately and one of them had pecked him with the tip of the ''Aruval''

which explains the stab injuries Nos. 9 and 14. The doctor has opined that these injuries could have been caused by assaulting with ''aruvals.''

The prosecution has also proved the motive on the part of the accused to attack deceased Stephen. It would appear from the evidence that

these people are slum dwellers and drunkards quarreling with each other. It also appears that there are two groups one led by deceased Stephen

and another by Govindaraj, brother of the 4th accused. Each group has attacked the other previously and there is deadly enmity between the two.

It is common ground that a criminal case was pending against deceased Stephen and others and it was posted for trial on 14-7-1980 and this

occurrence itself has taken place only on the eve of the date of the trial. Therefore, there was enough motive for the accused to attack deceased

Stephen and his men.

The other incriminating circumstance is that all the accused who are permanent residents of that slum had absconded form 13-7-1980 onwards

and two of them went to Thanjavur and surrendered before the Magistrate, while two others surrounded in Periyar District. Learned counsel for

the appellants raised an argument that the evidence of P.Ws. 1 and 4 should not be accepted and that P.W. 1 could not have been present at the

place. We are unable to agree. It was he who escaped and run to the police station and gave the F.I.R. Ex. P-1 at 4.00 p.m. within half an hour

after the occurrence. Therefore, we see no difficulty in holding that all the accused jointed together and assaulted the deceased Stephen with

''Aruvals'' as a result of which Stephen died on the spot.

The next point raised on behalf of the appellants is this. Even if the prosecution evidence is accepted in toto, the offence would not come under

S. 302 of the Indian Penal Code read with S. 34 of the Indian Penal Code as no common intention was made out for the four accused to commit

the murder of Stephen. In other words, it is argued that none of the four accused had any direct motive to assault the deceased Stephen. But, so

far as motive is concerned, I have already stated that there were periodical clashes between the two groups of persons for quite some time prior to

the date of occurrence. All these accused belong to one group and P.Ws. 1, 4 and the deceased Stephen belong to the other. This is evidenced by

the pendency of the criminal case which was posted for hearing no 14-7-1980 and also the previous proceedings.

Now, the vital point is whether the occurrence constitutes an offence under S. 302 of the Indian Penal Code. We have very carefully

considered the evidence and, in our opinion, the prosecution has not made out that an offence under S. 302 of the Indian Penal code has been

made out. Our reasons are as follows :- Firstly, there is nothing to infer that all the four accused had the common intention of murdering the

deceased Stephen, though form the evidence it is clear that all the four accused got together in order to give a good thrashing to deceased Stephen

who had stabbed the brother of the 4th accused previously.

Coming to the actual evidence, P.W. 1 has stated that the 1st accused dealt a few cuts on Stephen. Following this the 4th accused cut him

(deceased) on his head and on the palm. The further evidence is that when the victim fell down, all the four accused jointed together and cut him

repeatedly on various parts of the body. The only other witness is P.W. 4 who has merely stated that all the four accused cut Stephen. He does

not rightly say which of them caused which of the injuries on the person of deceased Stephen. Therefore, the evidence of P.W. 4 is general. The

F.I.R. itself mentions that the 1st accused gave a cut on the deceased, one on the leg and the other on the head, and all the four accused then

jointed together and cut him with ''Aruvals'' successively. In this connection, our attention was also drawn to the answer to P.W. 1 in cross-

examination which is to the effect that the 1st accused first rushed and cut Stephen. After the 1st accused had finished his part, the 4th accused

went in and dealt a few cuts. When the 4th accused stood aside after cutting the deceased Stephen, the 2nd accused dealt some cuts and then the

3rd accused. The evidence of P.W. 1 is that all the four accused were standing in a queue, so to say, and each had their turn. This, of course, is

artificial and it is more probable to hold that all the four accused chased Stephen, and each of them cut him as he liked on various parts of his

body. Further the medical evidence is too vague to support the conviction under S. 302 of the Indian Penal Code. Though 18 cuts were found on

the deceased as spoken to by P.W. 6, it has not even been elicited in chief-examination which of those injuries are grievous or which of them are

fatal or which of them are likely to cause death or which of them are sufficient in the ordinary course of nature to cause death. The prosecution has

miserably failed to elicit positive answer from the doctor and this omission is indeed surprising. In short, we are unable to gather from the medical

evidence, which are the fatal injuries that have resulted in the death of Stephen. Of course, as already stated, one can never know who caused the

fatal injury if four persons attacked a victim with Aruvals'' indiscriminately. At this juncture, we should remember the law laid down by the Supreme

Court in Baldeo Singh v. State of Bihar, AIR 1972 SC 464 : 1972 Cri LJ 262 and Rana Partap and Others Vs. State of Haryana, . The latter

decision is very appropriate to the facts of our case. Bearing in mind that these accused had no direct motive to cut the deceased and that the

further fact that they simply wanted to wreak vengeance on the deceased Stephen who had earlier stabbed one of their own man, it is just and

proper that the accused merely had the common intention of causing grievous hurt to the deceased. The Supreme Court has cautioned that where

the evidence is not conclusive whether the intention was to commit murder or to cause grievous injuries, the accused must be given the benefit and

they should be found guilty only for a lesser offence. In that view, the Supreme Court held that the intention was only to cause grievous injury and

reduced the offence to S. 326 read with S. 34 of the Indian Penal Code. We are satisfied that our case is one of those border line cases where

one may with equal justification infer that the common intention was to commit grievous injury and not murder. As already stated, the medical

evidence is silent whether the injuries or any of them are fatal or likely to cause death or sufficient in the ordinary course of nature to cause death.

The result of our discussion is, the conviction of all the accused under S. 302 read with S. 34, I.P.C. is unsustainable and the conviction is

modified and all the appellants are convicted under S. 326 read with S. 34, I.P.C. and each of them is sentenced to suffer rigorous imprisonment

for a period of four years. With this modification, all the appeals are dismissed.

Order accordingly.