In Re: Vadivelu

Janarthanam, J.—Of accused 1 to 4, who faced trial for various offences in Sessions Case No. 85 of 1981 on the file of Court of Sessions,

Trichy, accused 1 and 4 were convicted and sentenced to imprisonment for life for the offence under S. 302 read with S. 34, I.P.C. while accused

2 and 3 were acquitted of all the offences in respect of which they stood charged, and accused 1 and 4 were acquitted in respect of other charges.

Aggrieved by the conviction and sentence, accused 1 alone preferred appeal. While hearing the appeal, we entertained a doubt as respects the

correctness of the finding given by the Court below against accused 4. Therefore, suo motu revision is taken up on his behalf so as to see that no

prejudice is caused to the cause of justice.

Accused 1 and 4 are the residents of Thavittupatti, within the jurisdiction of Tharaiyur police station. Accused 2 to 4 are the sons of accused 1,

Palaniyandi (since deceased) and accused 1 are brothers. P.Ws. 1 and 2 are the sons of the deceased. The deceased and his sons, P.Ws. 1 and

2, who were away at Malaysia for quite sometime returned to India in the year 1970 once and for all with all their earnings they had in the foreign

soil. Accused 1 demanded from the deceased a share in his earnings to which course, the deceased was not amenable. Due to this accused 1 also

refused to give to the deceased a share in the family properties. Consequently, the deceased filed a suit in sub-Court. Trichy for partition.

Thereafter, want of cordial relationship between the two families came to prevail. The civil proceedings got terminated in favour of the deceased in

giving him 1/3rd share in the lands and other properties of the family.

On 22-11-1960 at about 6.00 or 6.30 a.m. the deceased P.Ws. 1 and 2 went to the lands taking with them the baling apparatus and their bulls

for irrigating the lands - P.Ws. 3 and 4, neighbouring land owners likewise were available in their lands for the purpose of irrigating the fields. While

the deceased and P.Ws. 1 and 2 were making necessary arrangements for baling out water from the well, accused 1 to 4 emerged there and

objected to the drawing of the water from the well. A wordy alteration arose between the accused on the one hand and the deceased and P.Ws. 1

and 2 on the other. The wordy alteration led to a scuffle resulting in injuries being caused to the deceased, P.Ws. 1 and 2 and accused 2 and 4.

Accused ran away from there.

P.Ws. 1 and 2 and the deceased went to Thuraiyur police station at 9 a.m. P.W. 1 gave Exhibit P-1 complaint to P.W. 15 the Sub-Inspector of

Police, who in turn registered the case in crime No. 425/80 under sections 324, 325 and 326, I.P.C., P.W. 15 referred the injured P.Ws. 1 and 2

and the deceased to the Government Hospital, Thuraiyur for treatment.

P.W. 12, the doctor attached to the Government Hospital at Thuraiyur treated the deceased for the injuries sustained by him and referred him to

the Government Headquarters Hospital, Trichy for further treatment. Exhibit P-10 is the wound certificate. He also examined and treated P.Ws. 1

and 2 for their injuries. Exhibits P-11 and P-12 are respectively the wound certificates issued to P.Ws. 1 and 2.

P.W. 15 went to the scene at 10.30 a.m. and prepared Exhibit P-3 observation mahazar attested by P.W. 6. He seized incriminating articles

from the scene. He also drew a rough sketch Exhibit P-17 of the scene of occurrence. At 2.30 p.m., he received a message regarding the death of

the deceased in hospital. Immediately he altered the case into one u/s 302, I.P.C. and sent express reports to the concerned officials.

P.W. 16 Inspector of Police, on receipt of the express F.I.R. took up further investigation in the case. Between 5 and 7 p.m., he held inquest

over the body of the deceased in the Government Hospital at Trichy. During inquest, he examined P.Ws. 1, 3 and others. Exhibit P-18 is the

inquest report. He despatched the body of the deceased through the Constable P.W. 13 along with the requisition Exhibit P-6 for purpose of

autopsy. He searched for the accused and they were absconding.

P.W. 9, the doctor attached to the Government Headquarters Hospital, Trichy commenced autopsy over the body of the deceased at 12 noon

on 23-11-1980. Exhibit P-7 is the post-mortem certificate. The doctor opined that injuries Nos. 1 and 4 could have been caused by a single blow

with a stick like M.O. 2; and that the incised injuries could have been caused by a sharp edged weapon like an aruval. He would further opine that

the deceased would appear to have died of shock and haemorrhage due to injuries sustained by him about 20 to 26 hours prior to autopsy.

On 25-11-1980, P.W. 16 arrested accused 2 and 4 at Kalingamudaiyampatti Road. Accused 2 gave a confessional statement, the admissible

portion of which is Exhibit P-4. Accused 4 also gave a confession, the admissible portion of which is Exhibit P-19. Pursuant to the confession

statements of accused 2 and 4, the weapons were recovered. On 27-11-1980, he arrested accused 1 near sivankoil at Thavittupatti. Accused 1

also gave a confessional statement, the admissible portion of which is Exhibit P-20. Pursuant to the confession, the weapon was recovered. He

sent the incriminating articles through Court to the Chemical Examiner for the purpose of analysis. Exhibits P-15 and 16 are the reports of the

Chemical Examiner and Serologist respectively.

After completing the formalities of the investigation, P.W. 16 laid a report u/s 173, Cr.P.C. before Court on 28-2-1981 for offences u/s 302

read with Sections 34, 324, 325, 352 and 506, Part I, I.P.C. appeared to have been committed by the accused.

Upon committal, the learned Sessions Judge framed various charges against the accused as detailed below : Firstly, against accused 1 and 4

u/s 302 read with S. 34, I.P.C.; Secondly, against accused 2 u/s 324, I.P.C.; Thirdly, against accused 3 u/s 325, I.P.C.; Fourthly, against accused

3 u/s 325, I.P.C.; Fifthly, against accused 4 u/s 352, I.P.C.; Sixthly against accused 1 u/s 506(1), I.P.C.; and Lastly against accused 4 u/s 506(1),

I.P.C. The accused when questioned as respects the charges framed against them, denied the same and claimed to be tried.

The prosecution in proof of the said charges examined P.Ws. 1 to 16, filed Exhibits P-1 to P-21 and marked M.Os. 1 to 19.

The accused when questioned u/s 313, Cr.P.C. as regards the incriminating circumstances appearing in evidence against them, denied their

complicity in the crime. They did not choose to examine any witness on their side. They however chose to mark Exhibit D-1.

The learned Sessions Judge, on perusal of the materials placed before him and after hearing the arguments of the learned counsel for the

defence and the learned public prosecutor found accused 1 and 4 alone guilty u/s 302 read with Section 34, I.P.C., convicted and sentenced them

to imprisonment for life while acquitting them and other accused (accused 2 and 3) in respect of the other charges. Hence the appeal and suo motu

revision.

Learned counsel appearing for the appellant (accused 1) would submit that even assuming for argument''s sake that the evidence available on

record in proof of the over acts attributed to accused 1 is taken for granted to be true, his act by no stretch of imagination amounted to an offence

u/s 302 read with S. 34, I.P.C. and if at all his act, in the circumstances of the case, would amount to an offence u/s 326, I.P.C.

The argument thus reflected above would imply that there is no dispute as regards the overt acts of the accused 1 in inflicting the injuries to the

deceased. Accused 1 was said to be arming with an aruval M.O. 4 at the time of occurrence. Despite possession of such lethal weapon, he did not

opt to wield and use the same for inflicting injuries on the person of the deceased. He threw away M.O. 4 and seized M.O. 2 wooden frame lying

there and inflicted certain injuries on the deceased. His act of throwing the lethal weapon, an aruval and seizing a wooden frame readily available in

the scene is indicative of his intention in not doing away with the deceased. His overt act in inflicting injuries on the deceased with the use of M.O.

2 consists of his giving a hit on the left forehead besides his beating on the hip and thigh of the deceased. The evidence available on record in the

shape of P.Ws. 1 and 2 clinches the issue of the overt acts of accused 1 in this regard.

Perhaps the beating was not that much severe as to cause the resultant injury on the portion of the hip and thigh of the deceased and that was

the reason why the medical testimony available on record in the shape of the evidence of the doctor P.W. 9 did not disclose any injury on those

portions of the body of the deceased. The doctor however found two contusions on the left eye brow and eye lid and the other on the left frontal

areas of the scalp. These two injuries are described in Exhibit P-7 post-mortem certificate thus :

(1) A contusion on the left eye brow and eye lid 6 cm. x 6 cm.;

(4) A contusion 4 cm. x 4 cm. over the left frontal areas of the scalp.

The doctor would opine that these two injuries could have been caused by a single assault with a stick like M.O. 2. Though he would not give any

opinion as regards the nature of these injuries, yet he would say that the cumulative effect of the injuries Nos. 3, 4 and 6 is fatal. From this it is

crystal clear that though these two injuries 1 and 4 are only contusions partaking the character of simple injuries, yet it cannot be stated that these

two injuries are not endangering the life of the deceased. The weapon of offence, namely, M.O. 2 wooden frame, though by appearance,

appeared to be innocuous, is capable of being used as dangerous weapon likely to cause the death. In such circumstances, though it cannot be

stated that in furtherance of common intention he did commit the murder of the deceased by intentionally causing his death by assaulting him with

the wooden frame M.O. 2 yet his act would squarely fall under Clause 8 of S. 320, I.P.C., in the sense of causing hurt which endangered the life of

the deceased punishable u/s 326, I.P.C.

Coming to accused 4 (revision petitioner), the evidence of P.Ws. 1 and 2 would reveal that he was responsible for causing injury No. 8 as

described in Exhibit P-7, namely.

An incised injury 5 cm. x 3 cm. x exposing bone over the lower third of posterior aspect of left leg near the ankle.

No doubt, this injury had been caused with M.O. 5 aruval. The doctor P.W. 9 of course did not give any opinion regarding the nature of this

injury. He would however give the features of the injury on internal examination, which reveal the tendons nerves; cutting of blood vessels and

exposing of left calcaneal bone. From the internal description given above, we can very well come to the conclusion that this injury is of grievous

nature in the sense of falling under Clause 8 of S. 120, I.P.C., endangering human life. In such circumstances, the overt act of accused 4 in causing

this injury on the left leg near the ankle cannot be stated to be one done in furtherance of common intention of murdering the deceased by

intentionally causing death by inflicting a cut with an aruval on the left ankle and if at all it may be stated that he had voluntarily caused grievous hurt

meriting penal consequences for such action.

In view of the discussion as above, the conviction of accused 1 and 4 for the offence of murder in furtherance of common intention u/s 302

read with S. 34, I.P.C. and sentence of imprisonment for life imposed by the Court below deserve to be set aside and instead they are liable to be

punished only for the offence u/s 326, I.P.C.

Coming to the question of sentence, accused 1 and 4 had been in prison on and from the date of their conviction, that is 18-10-1982. As such,

they have already undergone a sentence of imprisonment for more than six years four months. In the circumstances of the case, we feel that the

ends of justice would be squarely met with by sentencing them to the period of imprisonment already undergone.

In the results, the conviction u/s 302 read with S. 34, I.P.C. and sentence of life imprisonment imposed on accused 1 and 4 by the Courts

below are set aside and instead they are found guilty u/s 326, I.P.C., convicted thereunder and sentenced to imprisonment to the period already

undergone.

Subject to the above modification, the appeal and revision are dismissed.

Order accordingly.