Kathirvel and 12 others vs State

Kanakaraj, J.—The Appellants were accused 1,2 and 4 to 14 before learned Sessions Judge, South Arcot at Cuddalore, in S.C No. 222

of 1985. The third accused before learned Sessions Judge was acquitted and all the other accused who were convicted as per particulars to be

furnished hereafter, have therefore, preferred this appeal. There were as many as 15 charges against the Appellants and he acquitted third accused.

(i) The first charge related to all the accused and charged the accused of having formed an unlawful assembly on 9.5.1985 at 9.00 p.m. at the

Eswaran temple, Pavaikulam village, with the intention of murdering the deceased Dhanavel and causing simple or grievous injuries on the

prosecution witnesses and Ors. who came in support of them armed with deadly weapons and thus committing an offence punishable u/s 148,

I.P.C.

(ii) The second charge was that all the accused were members of an unlawful assembly formed for the purpose of murdering Dhanavel and causing

simple or grievous injuries to the prosecution witnesses and used force and violence, thus committing an offence punishable u/s 147,I.P.C.

(iii) The third charge was directed against the first and the second accused for inflicting injuries on the head of the deceased Dhanavel with the

intention of murdering him, thus committing an offence punishable u/s 302,I.P.C.

(iv) Charges 4 to 10 were directed against the first, fourth, seventh, eighth, ninth, eleventh and fourteenth accused for inflicting simple injuries on

Arumugham (P.W.7), Appadurai (P.W.2), Desingh (P.W.3), Sivasankaran, (P.W.6), Vaithiyalingam (P.W.1) and Thanikkachalam (P.W.5)

respectively with iron pipe, knife or spear, as the case may be, punishable u/s 324, of I.P.C.

(v) Charges 11 and 12 were directed against the fifth and the sixth accused for having caused grievous injury on P. Ws.2 and 3 respectively, with

an iron pipe and with a knife like ''Sillakol'' respectively, punishable u/s 326, I.P.C.

(vi) The thirteenth and fourteenth charges related to the third accused, twelfth accused and the thirteenth accused for causing simple injuries to the

deceased Dhanavel and P.W.I. punishable u/s 323, I.P.C.

(vii) The fifteenth charge related to the action of all the accused in being members of an unlawful assembly in which accused 1 to 3 caused the

death of Dhanavel and therefore, all of them were punishable for an offence of murder u/s 302, I.P.C. read with Section 149, I.P.C.

Learned Sessions Judge found the accused 1,2,4 to 11 and 14 guilty of an offence u/s 148, I.P.C. He also found accused 12 and 13 guilty of an

offence u/s 147, I.P.C. Accused 1 and 2 were found guilty of an offence u/s 302, I.P.C. Accused 4,8,11 and 14 were found guilty of an offence

u/s 324, I.P.C. The fifth accused was found guilty of an offence u/s 326, I.P.C. All the accused except the third accused, Gunasundari, were found

guilty of an offence u/s 302, I.P.C. read with Section 149, I.P.C. and the accused were convicted under the above provisions of the Indian Penal

Code. Learned Sessions Judge imposed the sentence of life imprisonment on the first and the second accused u/s 302, I.P.C. and life

imprisonment on all the other accused except the third accused for the offence u/s 302, I.P.C. read with Section 149, I.P.C. He also imposed a

sentence of one year Rigorous Imprisonment on accused 1,2,4 to 11 and 14 u/s 148, I.P.C. Accused 12 and 13 were sentenced to six months

rigorous imprisonment for the offence u/s 147, I.P.C. Accused 4,8,11 and 14 were sentenced to one year rigorous imprisonment u/s 324, I.P.C.

The fifth accused was sentenced to two years Rigorous Imprisonment u/s 326, I.P.C.

The Appellants are challenging the respective convictions and sentences imposed on them as above. It so happens that the first and the tenth

accused have passed away after the judgment of learned Sessions Judge. Consequently, appeal in respect of the first Appellant and the ninth

Appellant (10th accused) stands abated u/s 394, Code of Criminal Procedure Accused 1,2, 13 and 14 are ''Pankalis''. The third accused who was

acquitted of all the charges, is the wife of the first accused. Accused 8,9,10 and 11 are brother-in-laws of the first accused. Accused 4,6 and 12

are also cousins of the second accused. Therefore, all the accused are closely related. Similarly, P. Ws.2 and 7 are brothers of the deceased

Dhanuvel. P. Ws.3 and 6 are sons of P.W.4. P.W.5 is the brother''s son of P.W.1 P.W.8 is the aunt''s son of P.W.9. Thus, the deceased and

prosecution witnesses are mostly related. It is unfortunate that the entire occurrence is said to have taken place on account of a petty quarrel not

even worth mentioning.

On 8.5.1985 at about 7.00 p.m. P.W.10 was in his house at Pavaikulam. Accused 1,2 and 3 came to the house of P.W.10 and abused him on

the ground that P.W.10 and his sister had broken the leg of a goat belonging to the second accused. P.W.10 and his sister denied the said

allegation. P.W.1, the deceased Dhanavel, P.W.6 and P.W.8 were coming that side and heard the abuses of accused 1 to 3. The deceased

Dhanavel told the second accused that compensation can be obtained for the loss of the goat''s leg. The first accused retorted saying that the

deceased Dhanavel had no business to interfere as a Panchayatdar. P.W.1 advised P.W.10 and his sister to go to their houses and all of them

returned back to their houses.

On the date of occurrence namely, 9.5.1985, at about 9.00 p.m., P. Ws.1,5,6,8. and the deceased Dhanavel were gossiping near Eswaran

temple opposite to the house of Singaravel. At that time the second and the fourth accused came from the West each with a knife. The second

accused addressed the deceased Dhanavel in filth language referring to his offer to get compensation for the goat''s leg. At the same time, Accused

1,3 and 5 to 14 came to the place. The first accused was having a knife in his hand. The third accused was armed with a stick, the eighth accused

with a knife, the sixth accused; with Silla Kol (a type of a knife) and the fourteenth accused with a knife. Accused 5,7,9 and 10 were having iron

pipes. The eleventh accused was having a spear. The twelfth and thirteenth accused were armed with sticks. The first accused cut the deceased

Dhanavel on his head with his knife (M.O.1). The second accused cut twice on the head of the deceased with his knife (M.O.2). The third

accused hit the deceased with the stick (M.O.3) on his back. The fourth accused cut Appadurai, P.W.2, on the head. The fifth accused hit P.W.2

with iron pipe (M.O.4) on his right flank. At that time P.W.3 came there. The sixth accused stabbed him on the forehead with knife, M.O.5.

P.W.4, Narayanaswamy, came there running. The eighth accused cut him on the head with his knife. The ninth accused and the tenth accused hit

P.W.4 on his back with iron pipes. The tenth accused used M.O.6 iron pipe. P.W.1 intervened to separate them. ''The eleventh accused stabbed

the head of P.W. 1 with spear. The twelfth accused hit P.W.1 on his left hand with stick. The thirteenth accused hit P.W.1 on his right hand with

stick. P.W.5 came there running and he was cut on the back of right ear by the fourteenth accused with knife. The deceased Dhanavel fell down

on receipt of the injuries. There was a street tube-light burning at the scene of occurrence. One Ganapathy brought a car and all the injured

including the deceased and P.W.1 got into the car and proceeded to Kadambuliyur Police Station. P.W.1 narrated the occurrence to the Head

Constable, Muthuvel there, who is now no more, who recorded the same. On being read over, P.W.1 signed the same, it is Ex.P.l. The Head

Constable gave a memo to the injured persons for treatment at Panruti Government Hospital. He also registered Crime No. 116/85 and Ex.P.23 is

the First Information Report.

P.W.11 was the doctor in attendance in the Panruti Government Hospital. At about 11.25 p.m. she first examined the deceased Dhanavel, then

P. Ws.2,3,5 and P.W.1 and lastly P.W.4 in that order. She referred all of them to Cuddalore Government Head Quarters Hospital for further

treatment. Even as he was waiting to be taken to Cuddalore, Dhanavel died at about 12.15 p.m. Ex.P.2 is the Accident Register copy for the

deceased and Ex.P.3 is the death intimation to the police. Ex.P.4 to P.8 are the copies of Accident Register, so far as the other persons examined

by P.W.11. The injuries on P.W.2 and P.W.3 were grievous. She opined that the injuries could have caused on the respective persons by

weapons like M. Os.1 to 6 and sticks. P.W. 17, Sub-Inspector of Police who was on other duty on the evening of 9.5.1985 returned to the police

station only at about 7.00 a.m. on 10.5.1985. At about 7.45 am. he received the death intimation Ex.P.3 and altered the First Information Report

into Section 302 I.P.C. He sent express First Information Report, Ex.P.24 to the Magistrate and higher authorities. P.W.18, Inspector of Police

received Ex.P.2 at about 8.15 a.m. He proceeded to Panruti Government Hospital and conducted an inquest on the body of the deceased

Dhanavel between 9.30 am. and 1.30 p.m. Ex.P.25 is the inquest report. He examined at the inquest P. Ws. 1,5,6,7,8 and Ors. he sent the body

for post-mortem through P. Ws.16 with requisition, Ex.P.11. He sent the injured P. Ws.6 and 7 to the hospital with a memo.

P.W.12, the Assistant Surgeon at Panruti Government Hospital examined P. Ws.7 and 6 respectively and Exs.P.9 and P.10 are copies of

Accident Register in respect of them. He also opined that the injury on P.W.7 could have been caused by weapon like M.O.11 and those on

P.W.6 by weapon like M.O.4 or M.O.6, P.W.9 took P. Ws.2 to 4 to the Cuddalore Government Hospital and collected their blood stained

clothes and brought them to the Government Hospital, Panruti and handed them over to P.W.18 who seized them under mahazar Ex.P.17 attested

by P.W.15. They are M. Os.7 to l0,12 and 13

At this stage of the chronology we must advert to one important fact. The second accused was admitted in the Government Hospital, Cuddalore

by his wife and brother-in-law, fourth accused and brother Kaliyan at about 5.00 am. on 10.5.1985 with incised wounds, abrasions and

contusions. An intimation was sent to the Kadambuliyur Police. One Constable P.C.1565 was sent and he recorded statement from the second

accused at the hospital. In his statement he has stated that at about 8.00 p.m. On 9.5.1985, he was informed by the first accused that his brother-

in-law Kasinathan (fourth accused) was being beaten. He proceeded to the spot and saw P. Ws 6,8 and 2 were beating the fourth accused. The

second accused tried to separate them. P.W.6 questioned the second accused and went into his house, brought out a knife and cut him on the

fore-head, head and cheek. P.W.8 brought a pickaxe and hit the second accused on the right and left shoulders and his back. The second accused

swooned and dropped down. This complaint in Ex.D.1. It was brought to Kadambuliyur Police Station and it was registered as Crime No. 117/85

under Sections 324 and 307, I.P.C. at 12.45 p.m. on 10.5.1985. Ex.D.2 is the First Information Report.

P.W.18 then proceeded to the scene of occurrence at 2.15 p.m. and prepared observation mahazar Ex.P.18, a rough sketch Ex.P.26. He

recovered M. Os.14 and 15 blood-stained earth and sample earth under Ex.P.19. At about 3.15 p.m. he recovered blood-stained earth and

sample earth from the house of P.W.3 under Ex.P.20. Exs.P. 19 and 20 were attested by P.W.15. He examined P. Ws.10 and 15 on that day. At

6.30 p.m. he arrested the third accused and examined her. She gave a voluntary confession, the admissible portion of which is Ex.P.21. In

pursuance of the confession the third accused took them into her house and produced M. Os. 1-to-6 and 11. They were recovered under

inventory, Ex.P.22 attested by same witnesses. The third accused was sent for remand on the next day. He examined the doctors P. Ws.11 and

13 by snowing M. Os.1 to 6 and 11. He examined P. Ws.2,3,4 and 9. He perused Ex.D.2, First Information Report and investigated the same.

He found the allegations to be false and referred the case and sent notice to the second accused. On 14.5.1985 at 10.30 a.m. the second accused

was arrested at Kadampuliyur Police Station and sent for remand. He sent a requisition Ex.P.13 to the Magistrate for forwarding the incriminating

articles and objects for the purpose of chemical analysis.

10 Ex.P. 14 was the Head Clerk in the Judicial Second Class Magistrate, Panruti. he obtained orders and sent them for chemical analysis under

Ex.P.14. Ex.P.15 is the report of the Chemical Analyst and Ex.P.16 is the report of the Serologist. On completion of the investigation P.W.18 filed

the final report u/s 173(2) Code of Criminal Procedure on 21.10.1985.

On committal by the Judicial Second Class Magistrate, Panruti, learned Sessions Judge, framed the charges as already set out by us and on the

accused pleading ""Not guilty"" examined, 18 witnesses and marked 26 exhibits, besides 17 material objects. On the accused being questioned u/s

313 Code of Criminal Procedure they denied complicity and the second accused filed a written statement u/s 233 Code of Criminal Procedure

along with the wound certificate issued by the doctor at the Government Head Quarters Hospital, Cuddalore. He also filed Exs. D.1 and D.2 but

did not let in any oral evidence. It is on this basis that learned Sessions Judge rendered the conviction and sentences already noticed by us.

In this case we propose to notice the findings of learned Sessions Judge on the important aspects of the case before considering the evidence

and the arguments of learned Counsel for the Appellants. The trial Judge proceeds by stating that the motive ascribed by the prosecution for the

assault on the deceased and the prosecution witnesses with deadly weapons is flimsy. In fact he says that there could not have been any serious

pre-determined motive or intention on the part of the accused to assault the deceased and the others on account of the incident which happened on

the previous day, namely, on 8.5.1985 at about 7.00 p.m. in front of the house of the second accused, in an altercation between the second

accused and P.W.10. It was indeed a quarrel between the second accused and his wife on the one side and P.W.10 and his sister on the other

side. The dispute was about the second accused''s goat''s leg having been broken. P.W.10 and his sister denied that they were responsible for the

same. The deceased, P. Ws.1,6 and 8 who accidentally camp that side watched the altercation and the deceased only said compensation could be

claimed by the second accused and he need not scold P.W.10 in the night. The first accused retorted by saying . Thereafter everybody dispersed.

There was not even the usual threats by the first and the second accused of wreaking vengeance against anybody much less against the deceased

Dhanavel. We are only trying to point out that there was no conspiracy or pre-plan to attack the deceased nor was there any provocation for the

same. In fact there is absolutely no evidence on the side of the prosecution to the above effect. No doubt, there can develop a plan or motive on

the spot. We will deal with that aspect when we deal with the occurrence. Even so, the trial Judge concludes that the occurrence on 9.5.1985 at

9.00 p.m. was because of the said quarrel on 8.5.1985. In our opinion the origin and genesis has not been truthfully unfolded by the prosecution.

There are other reasons for this conclusion to which we will make a reference a little later.

The occurrence is said to have taken place at 9.00 p.m. on 9.5.1985, according to the prosecution witnesses and according to Ex.P.1 given at

10.30 p.m. But when the deceased and the prosecution witnesses P. Ws.1 to 5 were taken to the hospital at 11.25 p.m. P.W.11 the doctor has

recorded the time as given by the deceased and the witnesses as 8.00 p.m. in Exs.P.2 and Exs.P.3 to P.8 being the accident register copies. P.

Ws.6 and 7 who were taken a little later at 12.10 p.m., they gave the time of occurrence as 9.00 p.m. to the doctor, P.W. 12 as seen in Exs.P.9

and P. 10. In Exs.D.1 and D.2 given by the second accused as a complaint against some of the prosecution witnesses, the time of occurrence is

given as 8.00 P.M. on 9.5.1985. On the above evidence, the Trial Judge very rightly concludes that the fight between the accused party and the

prosecution party commenced at 8.00 p.m. itself. He however, unnecessarily adds that the injuries could have been inflicted a little later. We also

fix the time of commencement of the fight at 8.00 p.m. because Exs.P.2, P.4 to P.7 are the earliest documents and the doctor, P.W.11 could not

have any motive for entering incorrect timings. The trial Judge clearly says that the altercation between the two sides commenced at 8.00 am. He

has apparently given credence to the second accused''s complaint and rightly so, because the prosecution has not cared to explain the injuries on

the person of the second accused.

The trial Judge then proceeds to examine the whole case of the second accused, and disbelieves the same as totally improbable. He however,

accepts that the prosecution has failed to explain the injuries on the second accused. But he finds that a street tube-light was burning and there was

no doubt that it is only the accused who had assaulted the deceased and the prosecution witnesses. We also accept the above findings, but we do

not accept the next assumption by learned Sessions Judge that one or more of the prosecution witnesses could have retaliated and the second

accused could have been injured. The trial Judge fails to see that such a finding will lead to the further conclusion that some of the prosecution

witnesses were also armed with deadly weapons.

We now go a little deeper into the actual occurrence. The prosecution case is that the deceased, P.W.1, P.W.5, P.W.6 and P.W.8 were

gossiping near the Eswaran temple at about 9.00 p.m. on 9.5.1985 when the second and the third accused came there each armed with a knife the

second accused scolded the deceased in filthy language with reference to his statement that compensation could be claimed. At the very moment

Accused 1,3 and 5 to 14 also came there each armed with weapons like knife, iron pipe, spear and sticks. The first accused was having a knife.

The first accused cut the deceased on the head with M.O.1, knife. The second accused cut the deceased on the head twice with M.O.2, knife.

The third accused beat the deceased on the back with M.O.3, stick. This attack on the deceased exactly in the above manner is spoken to by P.

Ws.1 to 6,8 and 9. The trial court has accepted this evidence on the ground that it has not been shaken in cross-examination. He however,

disbelieves the presence of the third accused and the overt acts attributed to her on the ground that it was no place for a woman. Even though it is

a case of two wearing groups and even though the origin and genesis of the commencement of the fight between the two groups has not been

truthfully brought out by the prosecution, we have no materials to disbelieve the assertion of all the witnesses P. Ws.1 to 6, 8 and 9 that the first

and the second accused cut the deceased on the head with knives M. Os.1 and 2. It has to be remembered that the presence of most of the

prosecution witnesses and the injuries caused to them as also mentioned in the First Information Report Ex.P.1 recorded at about 10.30 p.m. at

the Kadampuliyur Police Station. It has to be remembered that P.W.6 was a law student studying at Bangalore. He had already completed B.A.

Degree examination. It may be that the accused party had no specific motive to attack the deceased because the goat''s leg was only broken by

P.W.10 and his sister. It is hard to believe that a person who suggested the claim of compensation in a very casual manner could be chosen as the

target for the ventilation of anger of the accused party. There is evidence to show that there has been a long-standing misunderstanding and mistrust

between the two groups for some reason or other. For instance, P.W.1 has admitted that there was a case in the year 1980 relating to the assault

by the first accused, seventh accused and the brother of the first accused on the person of P.W.1 and the Judicial Magistrate ultimately acquitted

the case. About two months prior to the occurrence P.W.1''s brother Govindasamy had given a complaint against the first accused and the same

was pending enquiry before the Judicial Magistrate, Panruti. In Ex.D.1, the second accused had made a complaint that he was informed by the first

accused that his brother-in-law Kasinathan, fourth accused, was being beaten, he rushed to the place and saw P.W.6, P.W.8 and P.W.2 were

beating the fourth accused. When he tried to separate P.W.6, went into his house brought a ''koduva kathi'' and stabbed the second accused on

the forehead, head and cheek. P.W.8 brought a pickaxe and hit the second accused on the right and left shoulder as well as on his back. At the

risk of repetition we have to state that the prosecution has not cared to explain the injuries found on the second accused which cannot be denied

because of the wound certificate given by the Doctor at the Government Hospital, Cuddalore. It is worthwhile at this stage to look into the wound

certificate. The injuries found on the second accused at 5.20 a.m. on 10.5.1985 are as follows:

An incised wound 4x1x1 cms. over the right parietal fractured region Blood staining.

An abrasion lxl/2 cm. over the fore-head right side.

An abrasion lxl/2 cm. over the Zygomah region with right side. 3 cm. below and lateral to right lower eyelid.

A contusion 4x2 cm. with abrasion 1/2 x 1/4 cm. over the back of right elbow.

A linear contusion oblique in directs 9x1 1/2 cms. over the back starting from right side in the upper part and crossing the midline and ending at

the left side. Red in colour.

A contusion 5x2 cm. On the value of the right shoulder without discolouration.

The Doctor has also recorded that the injuries were caused at 8.15 p.m. on 9.5.1985 by a ''Koduval'' and ''Kadapparai'' at Nadu Street of

Pavaikulam village. Though the injuries are categorised as simple we cannot forget the fact that the first injury was an incised wound on the parietal

fractured region. Abrasion and contusions were also found on the person of the second accused. These injuries indicate the use of weapons like

''Koduval'', Kadapparai and sticks. According to the prosecution, there was a tube-light burning on the street. Therefore, it cannot be assumed

that the second accused suffered the injuries on account of some mistaken identity in the free fight that was going on. However, we have to keep in

mind the fact that only the second accused is said to have been injured among all the accused and their supporters. In other words, it is quite

possible that one or two of the prosecution witnesses had been armed with weapons and in retaliation they could only attack one of the accused

party namely, the second accused. But the prosecution cannot leave the Court guessing on such important matters. P.W.5 has admitted that after

he received injuries from the 14th accused he saw that the second accused had received injuries on his head, but he conveniently says that he did

not know as to how the injuries were caused on the second accused. Except this witness no other witness has spoken to the injuries on the head of

the second accused. The possibility of a free fight with the accused party being the aggressors, appears to be the only conclusion which the Court

can draw from the evidence on record. As rightly pointed out by the learned Public Prosecutor the deceased and the prosecution witnesses viz., P.

Ws.l, 5, 6 and 8 were talking at a place very near Easwaran Koil when the accused party entered the scene of occurrence. According to Ex.D.1,

the fourth accused was being beaten by P. Ws.2,6 and 8 and then only the first and the second accused appeared at the scene. We are therefore,

unable to accept the theory of the accused party forming themselves into an unlawful assembly and that they came there with the intention of

causing murder of the deceased. It may be that they assembled without any unlawful ideas, but subsequently became an unlawful assembly only for

the purpose of rioting and not for committing any other offence. While on this aspect of the case we can as well discuss the prosecution case that

the common object of the unlawful assembly was to cause the murder of the deceased Dhanavel. There is absolutely no evidence to support his

case of the prosecution. In fact, we have already pointed out that there could not have been any grievance for the accused party against the

deceased Dhanavel on account of the quarrel relating to the loss of the goat''s leg belonging to the second accused. The facile assumption by the

trial Judge that merely because accused 4 to 14 were present in the scene of occurrence and the first and the second accused had caused the

murder of Dhanavel, it must be presumed that accused 4 to 14 had also participated in the common object of murdering the deceased Dhanavel,

though it was carried out by two of the members of the unlawful assembly. We are of the opinion that on the facts and circumstances of the case

the maximum that one can deduce from the evidence of the prosecution witnesses is that the assembly at the scene of occurrence became unlawful

only for the limited purpose of using force and violence with deadly weapons. In other words, if at all, an offence punishable u/s 148, I.P.C. has

alone been made out by the prosecution. There is absolutely no evidence for invoking Section 149, I.P.C. and holding that the fourth accused to

14th accused are also responsible for the action of the first and the second accused, in cutting the head of the deceased Dhanavel with knives M.

Os.1 and 2. In coming to this conclusion we are also impelled by the overt acts attributed to each of the accused of beating one or other of the

prosecution witnesses and causing mostly simple injuries. We are unable to decipher any identity of purpose in the various attacks of the respective

accused.

So far as the overt acts attributed to the first and the second accused, there is absolutely no doubt, that both of them armed with knives and the

first accused cut the head of the deceased Dhanavel with M.O.1 and the second accused cut the head of the deceased twice with M.O.2. These

overt acts attributed to the first and the second accused have been uniformly spoken to by P. Ws.l to 6,8 and 9. No doubt, it is argued by the

Appellants that their evidence is parrot like and in a case of two warring groups it would be unsafe to rely on such an evidence. We do not accept

this argument because whatever be the enmity between the two groups, no witness will go to the extent of swearing that the fatal cuts were given

by one of other of the accused. Nothing has been elicited in cross-examination as to why the prosecution witnesses should choose the first and the

second accused alone for attributing the overt acts on the deceased. Absolutely, nothing has been elicited to suggest that the prosecution witnesses

were biased against the first and the second accused among the entire group of accused numbering 14. It when especially, there is the further

evidence that others were also wielding knives like the accused 8,6 and 14. We have therefore, absolutely, no doubt in our mind, that the first and

the second accused caused those injuries as spoken to by the prosecution witnesses.

However, learned Senior Counsel, for the Appellant, Mr. N.T. Vanamamalai laid considerable stress on the evidence of the Doctor, P.W.11

to create a suspicion on the theory that the first and the second accused caused the head injuries. The argument is that P.W.11 who examined the

deceased Dhanavel at 11.25 p.m. on 9.5.1985 at the Government Hospital, Panruti, has stated in his evidence that the injuries were ""alleged to

have been caused by three known males with knife, pipe, spear at about 8.00 p.m. on 9.5.1985."" If three known males had caused the injuries as

above stated, each of them could have been in possession of only one weapon referred to by P.W. 11. In other words, according to Mr. N.T.

Vanamamalai, learned Senior Counsel, one male was having a knife, one male was having a pipe and the third male was having a spear and it is

only these three persons who attacked the deceased. In the absence of any evidence to show which of the accused between the first and the

second accused who had caused the fatal injuries, it is suggested that the benefit of doubt must go to the only surviving accused namely, the second

accused. We have already referred to the fact that the first accused is no more. No doubt, there was no motive for P.W.11 who have made those

entities in the Accident Register, Ex.P.2. We have also perused Ex.P.2 and the same entries are contained in the said document. We have given

our anxious consideration to the argument of learned Senior Counsel Mr. N.T. Vanamamalai. When we go through the entire evidence of P.W.11,

we feel that the argument of the defence counsel falls to the ground. This is because between 11.25 p.m. and 12.15 a.m. that is within a period of

50 minutes P.W.11 had examined the deceased, P.W.2, P.W.3, P.W.5, P.W.1 and P.W.4 and had noted down the injuries in Ex.P.2 and P.4 to

P.8. As against each person P.W.11 says that the injuries were said to have been inflicted by three known males or two known male or four

known males with pipe, knife and stick. Certainly, we cannot impute the Doctor, P.W.11 with any mathematical accuracy in making the entries and

thus pin him down to such entries for the purpose of falsifying the prosecution case. In our opinion, it would be like ""missing the wood for the

trees."" We therefore, reject this argument of learned Senior Counsel and the consequent inference that is, sought to be drawn to the effect that only

the first or second accused could have used the knife on the head of the deceased. There is no other circumstance which would enable us to hold

that the first and the second accused were not responsible for the injuries inflicted by them on the head of the deceased with M. Os.1 and 2. The

first three injuries found on the deceased are incised wounds on the head of the deceased and they are clearly relatable to the overt acts of the first

and the second accused. The Doctor, P.W.13 who conducted the post-mortem on the deceased has opined that the deceased would appear to

have died of shock and hemorrhage due to head injury. The Doctor has also opined that Injury Nos. 1 and 3 could have been caused by a

weapon like MO.2 and Injury No. 2 could have been caused by a weapon like M.O.1. We therefore, strongly feel that the first and the second

accused cannot escape the consequence of their cutting the head of the deceased with M. Os. 1 and 2.

However, the question still remains as to whether the offence made out is punishable u/s 302 I.P.C. or 304 I.P.C. The trial Judge has assumed

that the injuries were caused with the intention to murdering the deceased Dhanavel. Similarly, the trial Judge has also held that all the other

accused namely accused 4 to 14 are also liable for the murder of the deceased Dhanavel by virtue of Section 149, I.P.C.

In this connection it is worthwhile to keep in mind certain decisions cited on behalf of the Appellants. In Dharman Vs. State of Punjab, the facts

were more or less similar. In that case, the accused party demolished a lime crushing machine, when two women intervened and that they were

assaulted by the accused. One M person seeing the occurrence ran to the place where the deceased was working and informed him. The

deceased arrived at the scene with two others. It is at that time that a fight ensued and in the course of the fight the deceased received fatal injuries.

The Supreme Court upheld the findings of the Sessions Judge and the High Court to the extent that the injuries on the deceased and two others

were not inflicted in furtherance of a common object. Observed the Supreme Court:

The result of this conclusion was that so far as the second incident is concerned, each of the accused was responsible for his own act and nothing

more.

The Supreme Court proceeded to hold that the Exception 4 to Section 300 I.P.C. would come to the rescue of the accused inasmuch as there

was no pre-meditation and the injury not the deceased caused in a sudden fight. In Lakshmi Singh and Others Vs. State of Bihar, the Apex Court

has criticized the courts below for not making the necessary inference for the non-explanation of the injuries sustained by the accused. It would be

otherwise, if the injuries were superficial and minor. We have already extracted the wound certificate relating to the second accused and we are

not inclined to hold that the injuries were superficial or minor. In Surinder Kumar Vs. Union Territory, Chandigarh, there was a heated argument

between the accused party and the deceased party. One of the persons is said to have showered filthy abuses. The accused thereupon went to the

kitchen returned with a knife and inflicted one blow on the neck of one of the witnesses. There was a melee in which the accused inflect three knife

blows on another who succumbed to the injuries. On the above facts, the Apex Court held that the accused was entitled to the benefit of

Exception 4 to Section 300 I.P.C. The decision in Bachan Singh and others Vs. State of Punjab, is more appropriate so far as the formation of an

unlawful assembly and the consequences of an offence committed by such an assembly. That was also a case of one of the parties calling another

by bad name. Within five or ten minutes a number of persons gathered armed with weapons. One of the persons caused the blow with a spear to

the deceased. Others intervened to rescue the deceased and more injuries were inflicted on some of the prosecution witnesses. The Apex Court

notices the fact that some of the party belonging to the accused group had also sustained injuries and he only conclusion that could be arrived at

that there was a free fight between the two groups. Observed the Supreme Court:

It is the settled law that in a free fight each accused will be liable for the individual act attributed to the particular accused.

Ultimately, the Apex Court gave the benefit of Exception 2 to Section 300 I.P.C. and held him liable for punishment u/s 304 Part-1 I.P.C.

On an analysis of the above judgments in juxtaposition with the facts of the present case we have no doubt in our mind that it was a case of

free fight after the infliction of the injures by the first and the second accused or after P. Ws.2,6, and 8 caused injuries on the fourth accused and on

the second accused when he intervened to separate them by using knife and pickaxe. Therefore, following the judgments of the Supreme Court

each of the accused should be held liable only for the individual overt acts attributed to them. It is in this sense that we hold that the first and the

second accused alone are responsible for the murder of the deceased Dhanavel. Equally, we find all the other accused are responsible only for the

injuries inflicted by them on one or other of the prosecution witnesses.

The next question is the first and the second accused are liable for conviction u/s 302 I.P.C. or whether they are entitled to the benefit of either

Exception 2 or Exception 4 of Section 300 I.P.C. We have already adverted to two Supreme Court judgments where in one case Exception 4

was held applicable and in another case Exception 2 was held applicable on almost similar facts. In this case admittedly, one of the accused party

had suffered injuries and that is the second accused. Therefore, restricting ourselves to the case of the second accused we have no doubt in our

mind that the prosecution case had failed to explain injuries on him and consequently we have to give credence to the wound certificates Exs.D.1

and D.2. In this sense the case of the second accused is that he was told by the second accused that his brother-in-law, the fourth accused, was

being beaten by P. Ws.2,6 and 8. Therefore, he went to intervene and save his brother-in-law, the fourth accused. In the bargain P.W.6 cut him

with a knife and P.W.8 hit him with a pickaxe. Under such circumstances, certainly he had a right of private defence to save himself. But he had

gone to the extent of inflicting two injuries on the head of the deceased which were undoubtedly injuries caused with the knowledge that they were

likely to cause the death of the person. In other words, we are inclined to accept the argument of learned Senior Counsel, Mr. N.T. Vanamamalai

that if at all the second accused can be said to have exceeded the right of private defence, because the second accused had in exercise of good

faith of defending himself and the fourth accused cause the death of Dhanavel, by exceeding his right of private defence. Alternatively, we have

already held that there was no premeditation to cause the death of the deceased Dhanavel and it was only during the sudden fight which ensued

and in the heat of passion the second accused had inflicted the fatal injuries. It cannot be said that the second accused had taken undue advantage

or acted in a cruel or unusual manner. Therefore, as in the cases decided by the Supreme Court, we have also given the benefit of Exceptions 2

and 4 to Section 300 I.P.C. to the second accused and held him liable for culpable homicide not amounting to murder punishable u/s 304 Part I,

I.P.C.

So, far as the charges against the other accused for having caused simple injuries on the prosecution witnesses punishable u/s 324 I.P.C. and

the charge against the fifth accused and the sixth accused for having caused grievous injuries u/s 326 I.P.C, we find that the trial Judge has referred

to their separate overt acts and the medical evidence and concluded that the offences had been made out. Since no serious argument was

advanced questioning those findings we do not propose to go through the same once over again and affirm the findings of the trial Judge.

In fine, we set aside the conviction and sentence on all the accused/appellants u/s 302, I.P.C. read with Section 149, I.P.C. We hold the

second accused guilty of an offence punishable u/s 304, Part-11. P.C. and impose on him a sentence of seven years Rigorous Imprisonment. The

conviction of the fourth accused under Sections 234 and 148, I.P.C. as well as the punishment of one year Rigorous Imprisonment respectively is

confirmed. The conviction and sentence imposed on the fifth accused for an offence under Sections 326 and 148, I.P.C. for two years and one

year Rigorous Imprisonment are confirmed. The conviction and the sentence imposed on the seventh accused for the offence punishable u/s 148

I.P.C. and the sentence of one year Rigorous Imprisonment are confirmed. The conviction and the sentence imposed on the seventh accused for

the offence punishable u/s 148 I.P.C. and the sentence of one year Rigorous Imprisonment are confirmed. The conviction on the ninth accused

under Sections 324 and Section 148, I.P.C. and the sentence of one year Rigorous Imprisonment are confirmed. The conviction on the ninth

accused u/s 148 I.P.C. and the sentence of one year Rigorous Imprisonment are confirmed. The conviction and the sentence imposed on the 12th

and the 13th accused for an offence punishable u/s 147 I.P.C. and the sentence of six months Rigorous Imprisonment are confirmed. The

conviction and the sentence imposed on 14th accused for an offence punishable under Sections 326 and 148 I.P.C. and the sentence of one year

Rigorous Imprisonment each, are confirmed. The appeal as against the first Appellant (first accused) and the ninth Appellant (10th accused) shall

abate u/s 394 Code of Criminal Procedure The appeal is partly allowed as above.