In Re: Thirugnanam and Ramasamy

K.N. Mudaliyar, J.—Thirugnanam (A-1) and Ramasamy (A-2) are the Appellants. They appeal against the judgment of the Court of

Sessions, Tiruchirapalli Division convicting them of the offence u/s 302 I.P.C. (A-1 only) and also u/s 326 I.P.C. (both A-1 and A-2) under

charge Nos. 3 and 5 respectively.

The two Appellants (A-1 and A-2) and three others took their trial on eight charges for offences like 147, 148, 302, 302 read with 149, 324

and 323 I.P.C. A-3 to A-5 were acquitted of all the charges A-1 and A-2 also were acquitted of all the other charges.

The prosecution endeavoured to show the history of bitter feud between the Appellants on the one hand and the two deceased Murugesan and

Thiruvengadam on the other, commencing from 45, was murdered. A-1 and A-5 were the prosecution witness against Murugesan and four others

who were accused of the offence of murder of Murugesan''s father. There is also some evidence regarding the abduction of Mullaiammal''s

daughter resulting in friction and faction between the two parties. The various details pertaining to the bitter enmity between the parties are

elaborately noticed by the learned trial Judge in paragraphs 3, 4 and 5 of his judgment and it is unnecessary for us to repeat the same.

Murugesan (deceased) and Accused 1 and 5 are brothers. Tiruvengadam (deceased) was their first cousin. P.W. 11 Jayaraman is a close

relation of theirs. P.Ws. 7 and 9 (Duraiyappan and Subbiah respectively) are the sons of Murugesan (deceased). P.W. 10 Kandasamy is the

brother of P.W. 11. P.W. 8 Ramalingam is the son of P.W. 1. Thangavelu.

On 17th April, 1972 Murugesan and Thiruvengadam went in the cart of the former to T. Palur for hulling paddy. P.W. 1 also went along with

Murugesan and Thiruvengdam (the two deceased) for buying some medicine at T. Palur. After hulling paddy, all of them returned in the same cart.

Kaliaperumal (P.W. 5) and Nedunchezhian (P.W. 6) (both father and son) joined them on their return journey from T. Palur to the village of

Porpathinthanallur. When the cart was proceeding on the track, which was bordered on both sides by cashewnut topes, towards

Porpathinthanallur all the five accused rushed towards the cart and waylaid it. A-1 and A-2 had two weapons each viz., spear and aruval. A-3 and

A-4 had a spear each. A-5 had a stick. After waylaying the cart, A-1 stabbed Murugesan with the spear on the stomach and on the root of the

note. Murugesan fell down. A-2 cut Murugesan with an aruval on the left arm. Meanwhile, A-3 and A-4 speared Thiruvengadam who fell down.

A-1 cut Thiruvengadam with aruval on the hands, legs and neck. A-5 beat Thiruvengadam. A-2 stabbed P.W.1 with the spear on the right elbow

and A-3 beat P.W. 1 with the stick on the head. P.Ws. 5 and 6 ran away from the spot when the accused came and waylaid the cart. P.W. 5 got

an injury when A-1 stabbed Murugesan. A-2 sustained an injury on his hand when A-2 cut Tiruvengadm with aruval.

At the time of the incident, P.Ws. 7 to 10 were said to have been picking cashew in the tope by the side of the cart track where the incident

took place. They appeared to have obtained permission to pick the fruits from P.W. 13 the watchman. P.Ws. 7 to 10 and P.W. 13 heard shouts

from the cart track. P.Ws. 7 to 10 rushed to the spot P.Ws. 7 and 9 alone testified to the parts played by the accused with some variations. On

the arrival of these boys all the accused ran away southwards into the cashewnut tope. P.W. 7 rushed to the village shouting about the incident and

informed P.W. 11. P.W. 11 accompanied by his father Krishna Padayachi and another person by name Lakshmanan came to the spot. They saw

the injured Murugesan, Thiruvengadam and P.W. 1 and brought a taxi. By that time, Thiruvengadam had expired. P.W. 11 took injured

Murugesan and P.W. 1 to the Jayankondan hospital.

At 4 P.M. on 17th April 1972 P.W. 2 Dr. Sankaran examined injured Murugesan and found on him an oblique incised wound over the left arm

with fracture of the bone, a penetrating wound on the left side of the lower part of abdomen, a lacerated wound on the left side of the scalp, a

punctured wound over the root of the nose with fracture of nasal bone another punctured wound above the left elbow and contused abrasion

below the right eye. These injuries are described in detail in Ex. P-3. P.W. 2 opined that injury No. 1 could have been caused by an aruval while

injuries 2, 4 and 5 could have been caused by a sharp-edged weapon like a spear or sulukki and injuries 3 and 6 could have been caused by

beating with sticks.

At about 4-15 P.M. on the same day, P.W. 2 examined P.W. 1 and found on him a lacerated wound on the right side of the scalp, a punctured

wound on the outerside of the right elbow, another punctured wound on the inner side of right arm and linear multiple abrasions. Ex. P-5 is the

relevant wound certificate. P.W. 2 sent intimation of the accident to the Police in Exs. P-4 and 6 relating to the injuries of injured Murugesan and

P.W. 1. He also sent intimation under Ex. P-7 to the Sub Magistrate for recording the dying declaration of Murugesan.

P.W. 4 Sub-Magistrate received Ex. P-7, went to Jayankondan Hospital and contacted Murugesan who was conscious and in a talking

condition. P.W. 4, Sub Magistrate recorded the dying declaration of the said Murugesan in the presence of P.W. 2 Dr. Sankaran, which is Ex. P.

The statement was read over to Murugesan who admitted the contents to be correct and affixed his signature. P.W. 2 attested Ex. P. 15 and

his attestation has been separately marked as Ex. P-8. Dr. Sankaran (P.W. 2) referred Murugesan to the headquarters hospital, Tiruchy. It must

be noted that Ex. P-15 was written from 5-35 p.m. to 5-45 p.m. by the Sub Magistrate, P.W. 4.

x x x

The learned trial Judge found that the version of the incident given in Ex P-2 and Ex. P-15 and in the evidence of P.Ws. 1, 7 and 9 did not tally

with each other in all particulars. Considering the contents of Ex, P-3 and P-5 and the evidence of P.Ws. 1, 2, 7 and 9, 12 and 3 the learned trial

Judge held A-1 caused the fatal injury to Murugesan. In paragraph 21 the learned trial Judge found that both A-1 and A-2 caused grievous injuries

to Thiruvengadam with dangerous weapons although it was held that it is not possible for the learned Judge to accept that the fatal injury to

Thiruvengadam was caused either by A-1 or A-2. The learned trial Judge disbelieves the evidence of P.W. 1 in regard to the attack on him by A-

2 and A-3. Finally the learned trial Judge observed as follows:

To sum up, the acceptable evidence only proves that 1st accused caused the death of Murugesan by stabbing him on the stomach with spear and

that accused 1 and 2 caused grievous injuries with dangerous weapons to Thiruvengadam.

In paragraph 25 of his judgment, the learned trial Judge found A-1 guilty u/s 302 I.P.C. under the third charge. He further found both A-1 and A-2

guilty only u/s 326 I.P.C. under the fifth charge. We are constrained to extract the fifth charge here below.

That you, accused 1, 3 and 4 on the same date, time and place and in the course of the same transaction, did commit murder by intentionally or

knowingly causing the death of the said Thiruvengadam, by the 1st accused cutting him with an aruval and accused 3 and 4 stabbing him with a

spear each, and thereby committed an offence punishable u/s 302, I.P.C. and within my cognizance.

We notice that A.2 is not even charged with the offence of murder of Thiruvengadam punishable u/s 302 I.P.C. In the discussion paragraph 21

relating to the murder of Thiruvengadam, the learned trial Judge noticed the testimony of P.Ws. 1 and 7 who deposed that A-2 cut

Thiruvengadam. Presumably, on this basis the learned trial Judge found in the same paragraph that A-1 and A-2 caused grievous injuries to

Thiruvengadam with dangerous weapons. If this finding is correct on the basis of the acceptance of the testimony of P.Ws. 1 and 7, we are afraid

that the proper conviction must have been u/s 302 read with Section 34 I.P.C. against both A.1 and A-2. But, unfortunately the learned trial Judge

was absolutely careless and indifferent in not charging A-2 with the crime of murder punishable u/s 302 I.P.C. regarding Thiruvengadam under

charge No. 5, although he proposed to convict A-2 for an offence u/s 256 I.P.C. under Charge No. 5. The learned Sessions Judge would do well

to be more punctilious and meticulous about framing of the charge and the appreciation of the evidence and the consequential conviction or

acquittal as the case might be. Inasmuch as the State failed to file an appeal we express our helplessness in convicting both A-1 and A.2 of the

offence of murder punishable u/s 302 read with 34 I.P.C. regarding the murder of Thiruvengadam.

Let us examine the acceptability of the contents of Ex. P-15 which contains the dying declaration of Murugesan.

X X X

(Discussion Omitted--Ed.)

We affirm the finding of the learned trial Judge in regard to the conviction of A-1 for for the offence punishable u/s 326 I.P.C, under the fifth

charge.

Inasmuch as A-2 is not charged with the offence punishable u/s 302 I.P.C. under charge No. 3, we are constrained to acquit him. The

acquittal of A-2 is solely due to the indifference and carelessness of the learned trial Judge in not framing a charge against A-2 and A-5 u/s 302

read with Section 34 I.P.C. as an alternative to the charge u/s 302 read with Section 149 I.P.C. although his discussion in Para. 21 of his judgment

proceeds on that airy assumption.

We confirm the conviction of A-1 u/s 302 I.P.C. and also the sentence of imprisonment for life. We also confirm his conviction u/s 326 I.P.C.

and the sentence of rigorous imprisonment for two years. We direct the sentences to run concurrently.

We set aside the conviction of A-2 for an offence punishable u/s 326 I.P.C. and acquit him. His bail bonds shall stand cancelled.

Save for the acquittal of A-2, the Appeal is dismissed.

Before parting with this case, I am constrained to observe that the form of the judgment is not satisfactory. The learned trial Judge must take up

charge after charge, collate the entire evidence under the particular charge, give reasons for his acceptance or rejection of the prosecution evidence

and record a definite finding under each of the charges. Even under each charge the learned trial Judge ought to discuss the relevant and material

evidence pertaining to the presence, part and overt Act of each of the accused. This judgment falls short of the expected standard of the proper

treatment at the level of a court of Session in cases of rioting, unlawful assembly, hurt, grievous hurt and murder.