In Re: Sornavelayutham Pillai and Others

Kailasam, J.—On a difference of opinion between two learned Judges of this Court, the appeal has been placed before a Full Bench on the

orders of the learned Chief Justice.

At the outset, the learned Counsel for the appellants as well as the Public Prosecutor expressed a doubt as to the legality of the posting of the

appeal before the Full Bench. Mr. Vanamamalai, the learned Counsel for the appellant pointed out that under the amended Section 392 of the

Code of Criminal Procedure, the proviso to the section enables one of the Judges constituting the Bench to require the appeal to be re-heard and

decided by a larger Bench of Judges. This proviso is applicable to cases that are heard under the new Code. The present appeal was pending at

the time when the new Code came into force and therefore, according to Section 484 of the Code of Criminal Procedure, 1973, the appeal shall

be disposed of in accordance with the provision of the Code of Criminal Procedure, 1898, which was in force immediately before the

commencement of the new Code. This would imply that Section 429 of the Code of Criminal Procedure, 1898, is applicable. In Section 429 of

the Code of Criminal Procedure, 1898, there is no proviso, which would enable one of the Judges to require the re-hearing of the appeal before a

larger Bench of Judges, Further, the learned Counsel also referred us to the wording of the opinion of the Judge, who desired the posting of the

matter before a Full Bench that he agreed with the referring order of Venkataraman, J., wherein he has directed the matter to be placed before the

third Judge u/s 392 of the Code of Criminal Procedure. This, according to the learned Counsel for the appellants does not clearly indicate the

desire of K.N. Mudaliyar, J., to have the matter placed before a Full Bench. It is unnecessary for us to go into the question raised for the learned

Chief Justice, after consideration of the entire matter has directed the appeal to be heard by a Full Bench. The validity of the order of the learned

Chief Justice cannot be questioned for under Rule 6 of the Appellate Side Rules, High Court, Madras, notwithstanding anything contained in the

rules the Chief Justice may direct that any application, petition, suit appeal or reference shall be heard by a Full Bench as defined in these rules. The

order of the learned Chief Justice puts an end to the doubts that are expressed at the bar. There could be no valid objection to the Full Bench

dealing with the appeal.

JUDGMENT

Kailasam, J.

Three accused the father and his two sons were tried by the learned Sessions Judge of Tirunelveli for the offence of causing the death of one

Arumugham Pillai on the 29th of July, 1972, at about 3 P.M., at Pottaloorani village and found guilty of the offences under Sections 302 and 323,

Indian Penal Code (against A-1) Section 302 read with Sections 34, and 324, Indian Penal Code, (against A-2) and Section 302 read with

Section 34, Indian Penal Code, {against A-3) and sentenced to imprisonment for life. There were four charges framed against the accused. The

first against the first accused was for an offence u/s 302 the second against A-2 and A-3 for an offence u/s 302 read with Section 34, the third was

against A-1 for an offence u/s 323 and the fourth was against A-2 for an offence u/s 324, Indian Penal Code, for causing simple hurt with

dangerous weapon.

The case of the prosecution briefly is that there was enmity between P. Ws. 1 to 3 and the deceased on the one side, and Accused 1 to 3 on the

other, due to some trouble over the draining of sullage water. About 4 1/2 months before the occurrence, A-1, his wife, Pechi Ammal and their

daughter Anna Lakshmi and A-3 beat P.W. 3 and threw her in the gutter. P.W. 3 preferred a Police complaint and the 4 persons were proceeded

with in a Criminal Court and fined. Subsequently, P.W. 3 gave lawyer''s notice against the accused threatening to take legal action for recovery of

damages for defamation against her. Because of this dispute there was enmity between them. The mother of A-2 wrote to her son who was in

Police Service in Bhopal, complaining about the conduct of P.W. 3 and A. 2 wrote back to the first accused and his wife stating that he would

come and attend to the matter. The second accused arrived at Pottalurani Village on 28-7-1972, a day before the occurrence. A-1, A-2 and A-3

went to the house of P.W. 1 at about 10.30 p.m., in the night. They questioned P.W. 1 how he dared to send a notice for defamation and

threatened that the accused will not leave P.W. 1 without cutting him. P.W. 6, who was present, talked to the accused and sent them home.

On the next morning P.W. 1 (whose son-in-law, the deceased, who had married P.W. 3 and who was in Tuticorin) proceeded to Tuticorin to

make a report about the occurrence on 28-7-1972. P.W. l and the deceased returned from Tuticorin by 2.00 P.M. by bus. They got down at the

junction of Tirunelveli-Tuticorin road near Pottaloorani village. Their village was about seven furlongs from the road junction. When they got down

from the bus A-3, P.W. 2 and one Perumal Pillai were standing near the road junction. On seeing A-3, the deceased questioned him as to why he

came to attack P.W. 1, the previous night and asked him to come to the village, so that the matter could be talked over. In the evidence, P.W. 1

would state that A-3 told the deceased ""come to the village, we will kill him"" and so saying he started towards the village.

A little later, P.W. 1, P.W. 2 one Perumal Pillai and the deceased proceeded northwards towards their village. After proceeding for about 3 1/2

furlongs, they turned north east and took the shortcut to their houses at Pottaloorani village. Perumal Pillai took a different route. On proceeding

about 3/4th furlong. A-1, A-2 and A-3 who were hiding themselves in the punja land belonging to P.W. 6, came towards P.W. l and the

deceased. A-1 had M.O. 2 lathi in his hand and a bitchuva knife. M.O. 1 in his waist. A-2 had a Veettaruval and A-3 had a pen knife, A-1

immediately attacked P.W. 1 with the lathi stick on the head and the left flank. The deceased interfered. The deceased obstructed and A-1 hit the

deceased on the head with the lathi stick. After receiving the blow, the deceased snatched M.O. 1 from A-1 and beat A-1 on the head. At that

time, the stick broke at the tip and fell down. A-2 cut on the head of the deceased with the vettaruval, which he had in his hand. P.W. 1 tried to

stop it. At that time A-2 cut P.W. 1 on his head and on the right palm. A-1 took out the knife and stabbed the deceased on the right and left chest.

On receiving the two stabs, the deceased shouted that he had been stabbed and ran a short distance to the south and fell down. P.W. 1, who

started running towards south had his dhothi caught in the thorny bush and he discarded his dhothi, tied his towel and ran towards the south. At

that time, he saw A-3 stabbing the deceased with the pen knife, and P.W. 2 crying ""don''t stab, don''t stab"". The deceased died on the spot. The

accused ran away towards north west.

P.W. 1 immediately proceeded to the Village Munsif, P.W. 7 who was living at Ellanaickenpatti. The residence of the Village Munsif is about

one mile from the scene of occurrence. On hearing the incident from P.W. 1, P.W. 7 proceeded to the spot. There, the village Munsif took down

the complaint given by P.W. 1. The complaint was read over to P.W. 1 who accepted it as correct and signed it. A report was sent by the Village

Munsif through his Thalayari to the Pudukottai Police Station. P.W. 1 also went to the Police Station, from there, P.W. 1 was sent to the Tuticorin

Government Hospital and was examined there by the Circle Inspector at 10.30 P. M that night.

P W. 2 was working in T.T.A. Middle School till 1-6-1972. He retired and afterwards continued in the same post. He knew the accused as

well as ""the deceased. After finishing his work in the school, he came from Andiapuram Nellur by walk on the Tirunelveli- Tuticorin Road and was

waiting for some time under a tree. He saw A-3 and Perumal Pillai standing. After 5 minutes, he saw P.W. 1 and the deceased alighting from the

bus. The witness would state that on alighting from the bus, the deceased questioned A-3 as to why he went to the house of P.W. 1 and spoke in

insulting language. There was a wordy altercation between A-3 and the deceased and the witness suggested that this matter may be settled

amicably in the village. As to the incident proper, P.W. 2 gives a similar version as that of P.W. 1.

The Village Munsif, after hearing about the incident from P.W. 1 at 4.00 P.M., proceeded to the spot and there recorded the first information

report at about 5.00 P.M. He sent the injured P.W. 1 to the Police Station and he stayed at the spot. The First Information Report was received at

the Police Station at 8.30 P.M., and the Sub-Inspector came to the spot at 11.15 P.M. Soon after, the Circle Inspector also came and he

conducted the inquest from 1.00 A.M. to 4.00 A.M. The Circle Inspector arrested A-1 and on his information recovered M.O. 1, knife, which

was found to have been blood stained.

After investigation the Police filed the charge sheet. A-2, who had taken leave from Bhopal was subsequently arrested at Bhopal on 26-10-

1972. A-3 surrendered on 1-8-1972 before the Sub-Magistrate, Tuticorin.

The body of the deceased was produced before the Doctor, P.W. 4. He conducted the post-mortem on the dead body and gave the Post-

Mortem certificate Ex. P-2. He found on him the following four injuries:

Incised wound 2 1/2"" X 3/4"" in the left parietal region of scalp close to middle, bone deep. On dissection no fracture of the skull.

Punctured wound 1"" X 1/2"" right side of back along medial margin of right scapula. On dissection, 1"" deep echymosis in the underlying tissues

seen.

Punctured wound 1"" X 3/4"" just below right nipple 1"" lateral to right nipple. On dissection, echymosis seen in underlying tissues. There is a

punctured wound in the fourth right intercostal space corresponding to the external wound. There is a punctured penetrating wound on right middle

lobe of lung 1"" in diameter, depth 2"".

Punctured wound l"" X l/2"" in diameter 3"" above the left nipple. On dis-section, echymosis in the underlying tissues. There is a punctured wound

in the third left intercoastal space corresponding to the external wound. There is a punctured penetrating wound on the anterior surface of left lung.

Upper lobe 1"" X 1/2"" X 1 1/2"" depth extending on to the heart anterior surface entering right ventricular cavity of the heart.

The Doctor was of the view that injuries Nos. 3 and 4 were individual necessarily fatal and injuries Nos. 1 and 2 were simple. He also

examined A-1 at 9 A.M. on 31-7-1972 and found on him a linear incised wound in the scalp in the centre 1 1/2"" X 1/2"" X 1/4"".

P.W. 1 was examined by one Dr. Balasubramaniam, who gave the wound certificate, Ex. P-4. P.W. 1 had 4 injuries (1) on incised wound 2

X 1/4"" scalp deep on the front of forehead region, (2) incised wound 2 1/2"" X 1/4"" scalp deep on the back of the right side of scalp (3) incised

wound on the ball of right thumb 2"" X 1/4"" muscle deep, and (4) a diffused contusion in left chest. All the injuries were simple in nature.

The opinion of the Doctor is that injuries Nos. 3 and 4 on the deceased are necessarily fatal as they have pierced into the lung and heart. There

could, therefore, be no doubt that, whoever caused these two injuries, would be guilty of murder. The evidence of the eye witnesses. P. Ws. 1 and

2 is uniform that it was the first accused that caused these two injuries. We have been taken through the evidence of P. Ws. 1 and 2 and we see no

grounds for rejecting their testimony so far as the part played by A-1 is concerned.

P.W. 2 is a Teacher and is an independent witness. He has claimed that he is related to both the accused as well as the prosecution party and

that has not been challenged. We find that his evidence is unbiased, for P.W. 1''s statement that the third accused threatened the deceased with

murder on his arrival at the village and the subsequent testimony of P.W. 1 that the accused were lying in wait, are not supported by P.W. 2,

According to P.W. 2, there was a wordy quarrel between the deceased and the third accused. He does not say that the three accused were lying

in wait. We find the evidence of P.W. 2 thoroughly disinterested and quite acceptable. He had no axe to grind. We see no reason for rejecting his

testimony. It may also be noted that the first information report, which is a detailed document, does not mention about A-3 threatening the

deceased with murder on the deceased arriving at the village or the three accused lying in wait at the place of the incident. We are, therefore,

satisfied that P.W. 2''s evidence is convincing and has to be accepted. Regarding the part attributed to A-1, we accept the testimony of P.W. 1

and P.W. 2 two witnesses.

The question arises as to whether A-2 and A-3 took part in the incident and if so, whether they shared the common intention along with the

first accused to cause the death of the deceased. As already pointed out, the attempt of the prosecution to show that there was a pre-conceived

plan to cause the death of the deceased, cannot be accepted, for A-3''s alleged threat to kill the deceased and that three accused lying in wait is

not substantiated either by P.W. 2, or by the earlier statement in Ex. P-1. According to the sequence given in the prosecution, the attack was

started by A-1 with the lathi stick and then the deceased snatched the stick and started retaliating. The stick broke and thereafter A-2 cut the

deceased with an aruval and when P.W. 1 prevented it, A-2 cut P.W. 1 on his head and on the right palm. It is stated that after A-1 inflicted two

stab injuries on the left and right chest of the deceased and after the deceased fell down. A-3 went and stabbed the deceased with a pen knife.

Apart from the two fatal injuries found on the deceased which we have referred to already, the two other injuries found on the deceased are an

incised wound 2 1/2"" X 3/4"" of the left parietal region of scalp close to middle, bone deep. On dissection there was no fracture to the skull. This

injury is attributed to A-2 by the use of an aruval. The other injury is injury No. 2, which is attributed to A-3, which is a punctured"" wound 1"" X

1/2"" on the right side of back along medial margin of right scapula. These two injuries are simple and could have been caused by a stick. The

prosecution witnesses 1 and 2 state that a knife injury was caused by A-3, which may correspond to Injury No. 2.

On a careful consideration of the entire evidence, we are not satisfied that A-2 and A-3 shared a common intention to cause the death of the

deceased. On the other hand, we agree that they took part in the attack and caused simple injuries with dangerous weapons to the deceased as

well as P.W. 1 and they would be guilty of an offence u/s 324, Indian Penal Code, for the injuries they caused to the deceased, A-1 will be guilty

of an offence u/s 324, Indian Penal Code for causing hurt to P.W. 1 and the sentence of 2 years rigorous imprisonment confirmed. Regarding the

injuries caused to the deceased, A-2 and A-3 will be sentenced u/s 324, Indian Penal Code to rigorous imprisonment for three years. So far as

injury to P.W. 1 is concerned the conviction of A-1 and A-2 u/s 323 and Section 324, Indian Penal Code is confirmed.

In the result, we confirm the conviction u/s 302, Indian Penal Code, and the sentence of imprisonment for life imposed on A-1. A-1''s

conviction u/s 323, Indian Penal Code and the sentence of rigorous imprisonment for one year is also confirmed, but the sentences to run

concurrently. Regarding A-2 and A-3, they are acquitted of the offence u/s 302 , Indian Penal Code, read with Section 34, Indian Penal Code,

but instead found guilty u/s 324, Indian Penal Code, and they are sentenced to rigorous imprisonment for a period of three years. The sentences

imposed on A-2 will run concurrently.

With these modifications, the Criminal Appeal is dismissed.