In Re: Thangaraj and Others

Venkataraman, J.—Four persons were tried before the learned Sessions Judge of Ramanathapuram Division on a charge of murder of one ThangaKumar in pursuance of their common intention, u/s 302 read with S. 34, I.P.C. The first and second accused were also charged u/s 307 I.P.C. for attempting to murder P.W. 1. The learned Sessions Judge, while finding that the four accused had a common intention in attacking Thangakumar held that their intention was only to cause such injuries as were likely to cause death and that they would be guilty u/s 304 (part 1), I.P.C., read with S. 34 I.P.C. He accordingly convicted them and sentenced them each to rigorous imprisonment for seven years. Regarding P.W. 1, he convicted the first accused u/s 324, I.P.C. and the second accused u/s 326, I.P.C. and sentenced them to rigorous imprisonment for three years and five years respectively, and directed the sentences to run concurrently with the previous sentences. The accused have preferred C. A. 49 to 52 of 1971 against their convictions. The State has preferred C.A. 285 of 1971 contending that the learned Sessions Judge should have convicted the four accused u/s 302 read with S. 34 I.P.C.

The attack on Thangakumar (deceased) and witness Ramalingaswami (P.W. 1) took place on 29th April 1970 (A Wednesday) about 11-30 a.m. when they were coming from north to south on the Perayur Valayankulam road, marked in the investigation officer''s sketch Ex. P. 22. The background of the occurrence is this: P.W. 6 Gurusami is the brother-in-law of the deceased. The third accused Palaniswami had illicit intimacy with Lakshmi, wife of P.W. 6. P. W. 6 therefore discarded her. One Danushkodi, the maternal uncle''s daughter of the third accused was to have married the third accused in accordance with their caste custom of preferential right, but, because of the intimacy of the third accused with the wife of P. W. 6, Dhanuskodi refused to marry the third accused and, instead, preferred to live with P. W. 6. P. W. 6 took her to Senthurai about 80 miles away, about one and a half months before the occurrence. His brother-in-law Thangakumar (deceased in this case) was helping him by sending him rice, dhal etc. This irritated the third accused and also the other three accused. The second accused is the brother of the third accused, The fourth accused has married their sister. The first accused is related to the fourth accused. The prosecution suggests that, because Thangakumar (deceased) was helping P. W. 6, the four accused attacked him. The reasons for the attack on P.W. 1 was that he was the first cousin of the deceased and was his close associate. The attack on him was only incidental.

The deceased Thangakumar and P.W, 1 belong to Vellapottal. On the day in question they had gone to Melapatti, a village in the north, to collect money due to the deceased from one Kuppiah on account of charcoal supplied. Kuppiah promised to pay them the next day. Hence they returned to their village. They were coming on a cycle. On the way they overtook P.W. 4, who was returning with his family after attending a religious festival in Athipatti. The deceased and P.W. 1 proceeded further south for about one mile. The four accused had been lying in wait, near the pump-shed of one Kuppuswami Raja. The accused obstructed them. They told the deceased that P.W. 6 had gone away with Danushkodi to Senthurai and that he would release her only if the deceased came with the accused. The accused suggested that they could leave their cycles in Peraiyur village in the north. The deceased and P.W.1 agreed and turned their cycles. Immediately the fourth accused, addressing the deceased thus "Are you alone manly, are we only females?" gave a cut with an aruval on his left shoulder. P.W. 1 protested. The first accused, stating that they alone were the cause of P.W. 6 enticing Dhanushkodi away, gave a cut with an aruval on the left side of the head of P.W. 1. Sethuraj, the second accused, gave cuts to P.W. 1 on different parts of his body. P.W. 1 fell down, Thangaraj (first accused) and Sethuraj (second accused) stated that cuts should be given alternatively on the hands and legs of Thangakumar, and at the same time, the second accused caught hold of the left hand of Thangakumar, and gave cuts on his left upper arm, severing it. Then the four accused then gave cuts indiscriminately to Thangakumar. The accused then went away taking their two cycles. Thangakumar fell down. A little later P.W. 1 trudged along to the pump-shed of Kuppuswami Raja. P.Ws. 2 and 3 also claim to be witnesses to the above occurrence.

Sometime later, P.W 4 and his family reached the place. P.W. 4 saw P.W. 1 lying injured near the pump shed of Kuppuswami Raja and Thangakumar hovering between life and death on the road side about 75 ft. to the south west of where P.W. 1 was (See the sketch and the evidence of the Circle Inspector P.W. 13 about the exact distances). P.W. 4 says that Thangakumar asked him for water. He brought some water, drenching his towel, and gave it to Thangakumar. Thangakumar told him that Setharaj, Thangaraj, Palaniswami and Sakkarai (names of the four accused) had cut him. P.W. 4 then went back to P.W. 1. P.W. 1 asked him for water. P.W. 4 gave him water. P.W. 1 also told P.W. 4 that the four accused had attacked him. P.W. 1 asked P.W. 4 to go and see Thangakumar. P.W. 4 went back. By that time Thangakumar was dead. P.W. 4 reported it to P.W. 1. P.W. 1 asked P.W. 4 to give information in the village. P W. 4 met Sangili, the Vettryan (village servant) and informed him of what had happened. The village servant went and informed the village headman.

The village headman (P.W. 10) states that he came and gave him information of this case at 2 p.m. P. W. 10 went to the scene of occurrence. He saw Thangakumar lying dead west of the road. The severed left arm was lying about 112 ft. away on the north east at the place marked B in the sketch. P. W. 1 was lying with injuries in front of the pump-shed at a place marked A at a distance of about 19 ft. south east of the point B where the severed left arm of Thangakumar lay. P. W. 10 obtained a statement (Ex. P-1) from P. W. 1. In Ex. P-1 P. W. 1 implicated the four accused.

P. W. 10 prepared the covering reports Ex. P-11 and P-12 and sent Ex. P-1 and P-11 to the police station at Nathampatti about nine miles away, and the copy of Ex. P-1 and Ex. P-12 to the Sub Magistrate, Srivilliputtur through the village servant.

P.W. 11 the Sub Inspector of Nathampatti police station states that he received Ex. P-1 and P-11 at 6 p.m. through the village servant Sangili. He registered a case under Sections 302 and 307 I. P. C. sent express reports and went to the scene of occurrence. P. W. 13 the Inspector of Police, Sivakasi, received the express report at 7 p.m. He immediately went to the scene of occurrence, reaching there at 7:50 p.m., He saw Thangakumar, lying on the western side of the road about 75 ft. southwest of the pump shed of Kuppusami Raja. The severed left arm was lying about 112 ft. away from northeas of where dead body was and about 19 ft. north west of the pump-shed. He found stains of blood between the place where the corpse lay and the place where the severed hand was found. He collected blood stained earth from the different places and in the course of the inquest which he held between 8 and 11 p.m. he also examined P. Ws. 2, 3 and 4. He also recovered the cycles on which the deceased and P. W. 1 had come from the point, F, a few feet south of the severed limb. Later chemical examination revealed human blood from the blood stained earth which was collected.

P.W. 7, the Medical Officer at the Government Hospital, Srivilliputtur, examined P.W. 1 at 9.40 p.m. on 29th April, 1970 and found on him the following injuries:

A deep cut extending from the lateral aspect of the left eye brow to 1" posterior to the left ear measuring 6" x 3" x1/2"

A long cut 21/2" x 1" x1/2", 3" above the right ear over the scalp.

A lacerated wound exposing the right shoulder joint measuring 8" x 4" x 2".

A deep cut 4" x 1" x 1" over the palm and lower part of the left palm. It was a horizontal cut.

Two wounds one 2" x 1" and the other 1" x 1/2" over the posterior aspect of the right forearm. They were 11/2" apart and communicating with each other.

A punctured wound 1/4 " x1/4" x 1/4" and a cut wound 2" x 1/4" over the ulnar border of the left hand.

Injury No. 3 was grievous and the rest were simple.

P.W. 7 conducted the post mortem examination over the corpse of Thangakumar from 10.30 a.m. on 30th April 1970 and noticed the following injuries.

The left upper limb was cut off separately from the middle of the left arm. The humerus was obliquely cut when fitted together. The limb fitted correctly with the cut end.

A cut 3" x 1" x 1" directed downwards over the lower border of the left deltoid.

There were two cuts over the lower left of the left arm (separated left upper limb). The first one extended downwards from the cut surface for 11/2". The size of the cut was 11/2" x 1" x 1". The second cut extended downwards for 2" from the cut surface 2" x 1" x 1". Both these cuts were 1" apart and on the posterior aspect of the separated left lower limb.

An anterior-posterior cut over the right shoulder 4" x 2" x 1/2" The right acromioclavicular joint was also cut.

3" x 1" x 1/2" cut, 1/2" below the left clavicle on the lateral 2/3. The direction of the cut was from below upwards. The medal end of the cut was deep and the lateral end was 1/4" deep.

A deep cut 1" below the right knee joint extending from the skin of the tibia to the middle of the right political fossa 3" x 2" x 1"

The right tibia was cut for half of its thickness and the medial end of the calf muscles were cut off.

Two cuts over right popliteal fossa. The medial cut was 2" x 1" x 1" and oblique. The middle oblique cut was 1" x 1/2" x 1". The popliteal vessels were injured.

A cut 2" x 1 1/2" x1/4" over the left popliteal fossa extending horizontally.

Ex. P.4. is the post mortem certificate. P.W. 7 says that the injuries could all have been caused with cuts with an aruval and that the victim would have died within half an hour to one hour after the receipt of the injuries. He adds:

Injury No. 1 is sufficient in the ordinary course of nature to cause death. Even after receiving injury No 1 the deceased could have moved for some distance. The cumulative effect of injuries 2 to 8 would be to cause death.

The accused was absconding. The first accused was arrested on 1st May 1970. Accused 2,3 and 4 surrendered on 27th July 1970 before the Sub Magistrate, Srivilliputtur.

The accused denied the prosecution evidence They did not examine any defence witnesses.

The learned Sessions Judge has accepted the evidence of P. Ws. 1 and 4, but not the evidence of P. Ws.2 and 3. We are satisfied that the evidence of P.W. 1 and 4 is substantially true.

(The discussion of facts is omitted: Ed.)

X X X X

The facts as thus found by us are these: The four accused were waiting with aruval near the pump shed of Kuppuswami Raja. This place is far away from their house. The first accused is a resident of Vellapottai, which is about four miles away. Accused 2 and 4 reside in Ellinganaickenpatti, about 12 miles away. The third accused belongs to Ellinganaickenpatti, but he was residing in Vellapattal, about 4 miles away. These four accused obstructed P.W. 1 and the deceased in connection with P.W. 6 enticing Dhanushkodi away. The fourth accused started the attack by giving a cut on the deceased Thangakumar. Then accused 1 and 2 attacked P. W. 1. Then a remark was made that the left arm of the deceased should be severed. The left arm was severed by one or more of the accused and all the four accused attacked him. The evidence of the doctor is that the severance of the left arm (injury No. 2) was sufficient in the ordinary course of nature to cause death and that is, of course, obvious, because the arteries and veins were cut and the victim must have bled to death. The doctor also says that the cumulative effect of the injuries 2 to 8 would be to cause death and that has not been effectively challenged in cross-examination. All that has been elicited is that the injuries on the deceased were not on the vital parts of the body. On this point, however, the replies of the doctor that the injuries were not on the vital parts of the body may not be correct, in so far as the injury on the left clavicle (Injury 5) is concerned. If it had been deeper, that by itself would have been sufficient in the ordinary course of nature to cause death. However, the more important point is that the notion that the injuries should normally be on what the layman considers to be the vital parts of the body in order to constitute murder in law is not correct. Under Cl. 3 of Section 300, I.P.C. in particular, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In Virsa Singh v. State of Punjab 1958 S.C.R. 1945 their Lordships of the Supreme Court have pointed out that in order to constitute murder under this provision it is enough if three requirements are satisfied, namely (i) that there must be intention to cause bodily injury, which is a subjective fact, (ii) that the injury or injuries must be sufficient in the ordinary course of nature to cause death, which has to be determined objectively, and (iii) that the phrase "bodily injury intended to be inflicted" means merely that the injuries were not caused accidentally and that whoever caused the injuries intended to cause them. Now it cannot be pretended in any manner that the injuries were caused accidentally. Thus it is clear that, if only one person had caused all the injuries, he would certainly be guilty of murder for the first injury alone or for causing injuries 2 to 8 and certainly for causing all the injuries 1 to 8. The question arises whether when four persons cause those injuries, the position would be different. It is here that S. 34,I. P. C. comes into play. It says:

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

S. 33, I. P. C. says:

The word ''Act'' denotes as well a series of acts as a single act; the word ''omission'' denotes as well a series of omissions as a single omission.

Thus, when S. 34, I. P. C. speaks of a criminal act, it embraces all the series of acts by which the injuries were inflicted. This is clear enough from a reading of Sections 33 and 34, I.P.C. but it has also been made clear by their Lordships of the Privy Council in AIR 1925 1 (Privy Council) and that has been referred to by their Lordships of the Supreme Court in Afrahim Sheikh and Others Vs. State of West Bengal, . Thus it is clear that in order to invoke Section 34, I.P.C., what must be determined is whether all the injuries taken cumulatively were inflicted in furtherance of a common intention of all. For our part, we have no difficulty in holding that the answer must be in the affirmative. The four accused had gathered there from different place with aruvals and were waiting for the deceased and his companion to come. They obstructed them and inflicted numerous injuries on the deceased and some injuries on P. W. 1. We have already pointed out that there was a common motive for them to attack the deceased. On these facts, we fail to understand how we can escape the conclusion that all the injuries cumulatively caused were so caused as a result of the common intention of the four accused. It would follow, as a matter of course, that each of the four accused is liable for all the injuries cumulatively in the same manner as if all of them were caused by him alone. In other words, each of them would be guilty u/s 302 read with S. 34, I. P. C.

We are enable to follow the reasoning by which the learned Sessions Judge has held that the common intention of the accused was only to cause such injuries as were likely to cause death and that they would be guilty only u/s 304 (Part I) I. P. C. We quote below the relevant portion of his judgment:

It is the evidence of the doctor P. W. 7, that the injury No. 1 severing the arm of the deceased is sufficient in the ordinary course of nature to cause death. It is the evidence of P. W. 1 that it was A-2, who cut and severed the arm. He has, however, stated in Ex. P-1 that all the accused 1 to 4 cut the deceased repeatedly. It is significant to note that there is no mention in Ex. P-1 that A. 2 cut and severed the arm of the deceased P. W. 1 admits that to the police has mentioned, that all the four accused had severed the arm and thrown it away. The doctor is of opinion that the cumulative effect of injuries 2 to 8 on the deceased is to cause death. However it is to be noted that no injury is on any vital part of the body. In the circumstances, what must be the truth is that all four accused should have cut the left arm of the deceased and also caused the rest of the injuries on him. It is further to be noted that A. 1 and A. 2 only are stated in this Court by P. W. 1 to have uttered that a hand and a leg of the deceased could be removed. In Ex. P. 1 he has stated that it was A. 2. who bad uttered that the left hand of the deceased should be removed. In the circumstances the evidence cannot be held to spell out an intention of murder, much less a common intention of the four accused to murder the deceased. The accused to 4 in the circumstances could only be held to have caused the injuries to the deceased with the intention of causing such injuries as are likely to cause death having regard to the number of the in juries and nature of injuries. I find therefore each of A. 1 to A 4 only guilty u/s 304 (part I) read with S. 34 I. P. C. under charge No. 1.

The first five sentences mean that the learned Sessions Judge was not prepared to accept the present evidence of P. W. 1 that it was the second accused who cut and severed the arm. The implication is that, if he was prepared to accept the evidence of P. W. 1, he would convict the second accused of murder for severing the arm. The seventh sentence seems indicate that, in the view of the learned to Sessions Judge, the opinion of the doctor that the cumulative effect of injuries 2 to 8 was to cause death did not matter, because none of these injuries was on any vital part of the body. We have already pointed out that the notion that the injuries should be inflicted on vital parts of the body is wrong in law. Besides the decision in Virsa Singh Vs. The State of Punjab, we may also refer, on this point, to the decision in Anda and Others Vs. The State of Rajasthan, a case u/s 302 read with S. 34 I. P. C. See also AIR 1938 834 (Lahore) Rahman v. Crown ILR 1939 Lah 77 : AIR 1937 Lah. 225, Rajamanickam v. State. (1955) M.W.N. Crl. 153, 156). No exception can be taken to the eighth sentence and it is on this basis that we are also proceeding." The ninth and tenth sentences may be taken to mean that the learned Judge was not prepared to accept the averment that there was any instigation at all by any of the accused that the left arm of the deceased should be removed, though the learned Judge does not say so clearly. But even on the basis that there was no such open instigation, the result would be the same, because actually the left arm was severed. There were three cuts on that portion of the arm which itself shows that the accused between them intended to sever the left arm. Further, there is also the cumulative effect of injuries 2 to 8, which also shows the common intention to inflict the injuries and the infliction of those injuries by themselves, even without reference to injury No. 1 would constitute murder.

In fairness to Thiru N. T. Vanamamalai, the learned Counsel for the Appellants, we must state that he did not endeavour to support the reasoning of the learned Sessions Judge. Indeed, he conceded that on the assumption that if one person caused injuries 2 to 8 cumulatively, that person would be guilty of murder under the third clause of Section 300 I. P. C. as interpreted in Virsa Singh Vs. The State of Punjab, Similarly the conceded that the person who severed the left arm, assuming hat it was severed only by one person would be guilty of murder on the same reasoning. He also conceded that there was common intention on the part of the accused to cause some injuries but what he submitted was that that common intention was not to cause the injuries which were actually caused, but to cause only grievous hurt. He wanted to deduce this from the fact that the injuries were mostly aimed on the left arm and the right leg. He also cited some decisions. We are, however, unable to agree. We have already pointed out that, when the four accused had gathered together from different places and lay in wait for the deceased, armed with aruvals, and attacked him, there is no escape from the conclusion that their common intention was to cause the injuries which were actually caused. Once that stage is reached, each of them would be guilty u/s 302, read with Section 34 I.P.C.

The cases cited by the learned Counsel for the Appellants are distinguishable. The cases cited were: Public Prosecutor v. Narasigadu (1937) M.W.N. 1124, Subramania Goundar v. Emperor (1941) M.W.N. 815, AIR 1945 118 (Privy Council) , Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, Kapur Singh Vs. State of Pepsu, , Jaganlal Anjordas v. State (1963) 2 C.L.J. 570. In Emperor Vs. Koramutla Narasigadu and Others, the weapons used were ordinary sticks and were not of such size and weight that a blow given with moderate force would ordinarily cause fracture of the skull. That was why it could not be held that the two persons who did not cause any fracture of the skull had the same intention as the person who used greater force and did fracture the skull." Here the weapons used were aruvals and numerous injuries were inflicted.

In Subramania Goundar v. Emperor (1941) M.W.N. 815 death was caused by stabs inflicted with a knife by one of the accused, Tirumalai Goundan. The other accused had brought only stones, and there was no evidence to justify the conclusion that they knew that Tirumalai Goundan had a knife and would use it.

In AIR 1945 118 (Privy Council) a blow was struck on the accused Ghulam Quasin Shah. He shouted for help, and at that time Wali Shah and Mahbub Shah came up with guns. Wali Shah fired at Allah Deo who fell down dead. Mahbub Shah fired at Hamidullah Causing injuries to him. The question was whether Mahbub Shah could be convicted u/s 302 read with S. 34, I. P. C. for the murder or Allah Dad. It was held that the evidence did not justify the conclusion that he and Wali Shah had any common intention to murder Allah Dad. There was no prior meeting of minds. Here, however, the facts are obviously different. The accused had gathered before hand with arms and lay in wait for the deceased.

In Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, there was not enough evidence to attract S. 34 I. P. C. on a charge of murder. There was no evidence of any prior meeting of the accused or of what they said or did before the attack. Here the facts are different.

In Kapur Singh Vs. State of Pepsu, one Chand Singh held the deceased by the head and the Appellant inflicted 18 injuries on the arms and legs of the deceased with a gandasa. Chand Singh was convicted u/s 302, I.P.C. and sentenced to transportation for life. That case did not come up before the Supreme court. Later the Appellant, who was absconding, was tried and convicted u/s 302 I. P. C. Their Lordships held that his intention was only to inflict on the arms and legs of the deceased such injuries as would result in the amputation of both the arms and both the legs of the deceased, thus wreaking his vengeance on the deceased for what his son Bachan Singh had done to his own son Pritam Singh. The conviction was altered to one u/s 204 (part I) I. P. C. He was also sentenced to transportation for life. The case turned on the inference their Lordships drew on the party facts of the case.

In Jaganlal Anjordas v. State (1963) 2 C.L.J. 570 it was found that the two accused, Jaganlal and Anjordas had a common intention to take possession of the field by using force. One Chitibai intervened and they beat her with lathis. She died. It was held on the facts of that case that it would be too much to say that they had common intention to cause the death of anybody and that their common intention was only to cause grievous hurt. The conviction was recorded u/s 325 read with S. 34 I. P. C. The case turned upon its own facts, the primary object being to take possession of the land, using such force as might be necessary.

On the other hand, it seems to us that the following cases, in which the conviction was u/s 302 read with S. 34 I. P. C. are more to the point: AIR 1925 1 (Privy Council) already referred to Bharwad Mepa Dana and Another Vs. The State of Bombay, and Anda and Others Vs. The State of Rajasthan, In the last case the injuries were not on any vital part of the body apparently no injury by itself was sufficient in the ordinary course of nature to cause death and no weapon was used which could be described as specially dangerous. Still the conviction of the accused u/s 302 read with S. 34 I.P.C. was upheld with these observations;

In this case the accused beat Bherun inside a house after dragging him there. The number of injuries shows that all took part. His arms and legs were smashed and many bruises and lacerated wounds were caused on his person. The injuries intended to be caused were sufficient in the ordinary course of nature to cause death. The assault was thus murderous and it must have been apparent to all the assailants that the injuries that were inflicting in furtherance of the common intention of all were sufficient in the ordinary course of nature to cause death.

We accordingly allow C.A. 285 of 1971 and convict each of the accused u/s 302 read with S. 34 I.P.C. and sentence each of them to imprisonment for life. We dismiss the appeals of the accused questioning their conviction u/s 304 (part I) I. P. C.

So far as the attack on P.W. 1 is concerned, it is clear that there is no reason whatever for setting aside the conviction of the first accused u/s 324 I. P. C. and the second accused u/s 326 I. P. C. or for interfering with the sentences of rigorous imprisonment for three years and five years. But these sentence s will run concurrently with the sentences of imprisonment for life.