Mannan and Thangaraj vs State by Inspector of Police

Raja Elango, J.—This appeal arises out of the judgment made in S.C. No. 115 of 2006 by the learned District and Sessions Judge,

Thiruvannamalai, convicting the first appellant/first accused for an offence u/s 302 IPC., and sentencing him to undergo life imprisonment and also

to pay a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for two years and convicting the 2nd appellant/2nd accused for an

offence u/s 302 r/w 34 IPC., and sentencing him to undergo life imprisonment and also to pay a fine of Rs. 10,000/-, in default, to undergo

rigorous imprisonment for two years.

Brief facts of the prosecution case are as follows:

(i) P.W.1 Ezhumalai''s father Manna Kounder and one Rama Kounder and Ramalingam were brothers. The first appellant/first accused is son of

the Ramalingam and the 2nd appellant/2nd accused is son in law of Ramalingam. The deceased Munusamy is son of the Ramasamy. P.W.1

Ezhumalai and accused having lands in Velananthal Village. 25 days prior to the fateful day, the first accused dug a well in his land and thereafter

bombs were used to blast the rocks. The blast spewed stones and other debris which fell in the well of P.W.1. angered over the same, wordy

quarrel started between them, the deceased intervened and solve the problem. So, the first accused was under the intention that the deceased is in

favour of Ezhumalai. On 18.07.2006 at about 12.30 p.m., the deceased Munusamy was on his way to his field through the land of the 2nd

accused. The wife of the 2nd accused Pachaiammal came from the opposite direction, the deceased questioned her why she is keeping the incident

still in her mind and advised her to be normal and to forget every thing happened in the past. The 2nd accused came to the spot and hearing the

conversation of the accused and Pachaiammal, and questioned the second accused as to why he is teasing her, thereafter he caught hold of the

hands of the deceased, the first accused who was working nearby the field came to the place and beat him repeatedly on the head of the deceased

with Eucalyptus Stick. Deceased was taken to Thiruvannamalai Govt. Hospital and thereafter to Chennai and the deceased succumbed to injuries

on his way to hospital.

(ii). PW1 set the law in motion. On the basis of complaint lodged by PW1 case was registered in Cr. No. 303 of 2006 (Ex.P16) under Sections

294(b) and 302 IPC.

(iii). PW12-Inspector of Police had taken up investigation, he inspected scene of occurrence and prepared Ex.P7-Observation Mahazar and

Ex.P17-Rough Sketch. Blood stained earth and sample earth were seized under Ex.P18-Seizure Mahazar. In the Govt. Hospital Chennai inquest

was held on the body of deceased Munusamy and Ex.P`9 is the inquest report. On requisition from Investigating Officer PW4-Dr.Vedanayagam

had conducted autopsy on the body of deceased and noted depressed communited fracture in the front both temporal parietal region extradural

hemorrhage noted between the fractured site and infra central hemorrhage. A linear fracture was also seen extending from right middle cranial fossa

to left middle cranial fossa. PW4 opined that death was due to head injury and issued Ex.P6-Post Mortem Certificate.

(iv). On 20.07.2006 both accused were arrested by PW12-Investigating Officer. Confession statement of first accused led to recovery of MO1-

Eucalyptus Thadi under Ex.P21-Mahazar. Upon receipt of chemical analysis report and on completion of investigation final report was filed against

the accused for the offences under Sections 294(b) and 302 IPC.

To substantiate charges against the accused, in the trial Court, the prosecution examined P.Ws.1 to 12, Exs.P.1 to P.22 and M.Os.3 were

marked.

When the accused were questioned u/s 313 Cr.P.C., in respect of the incriminating materials appearing against them, they denied the same as

false and pleaded not guilty. Upon analysis of evidence, the trial Judge convicted the first appellant/first accused for the offence u/s 302 I.P.C. and

convicted the 2nd appellant/2nd accused for the offence u/s 302 r/w 34 IPC., and sentenced to imprisonment and imposed fine as aforesaid in

para No. (1).

The learned Counsel appearing for the appellants/accused argued that the trial Court erred in convicting the accused based on the testimony of

PWs.1 and 2 and their presence at the scene of occurrence is highly doubtful and their evidence is unbelievable.

Per contra, the learned Additional Public Prosecutor submitted that the evidence of P.W.1 and 2 and the other witnesses and the medical

evidence clearly establish the case of the prosecution and the learned Sessions Judge rightly convicted the accused for the alleged offences.

About 25 days prior to the occurrence first accused dug a well 10 feet from the well situated in PW1''s fields. PW1 along with his cousin came

and questioned first accused regarding the digging of the well close to the well of PW1. After few days of manual digging of the well, bombs were

used to blast the rocks and blasted stones fell in and around the well of PW1. Once again PW1 along with deceased Munusamy took up the issue

with first accused which caused animosity between both parties. PWs 1 and 2 have cogently spoken about occurrence and animosity. Proof of

motive heightens the probability of prosecution case.

PW1 and PW2-Kanniammal (wife of PW1) have cogently spoken about occurrence on 18.07.2006 as to how deceased Munusamy

volunteered to speak to pachaiammal-wife of second accused. On seeing Munusamy talking to his wife second accused who was in the near by

field came to rescue his wife Pachaiammal which resulted in wordy altercation. First accused rushed to the place and inflicted one hit on the head

of deceased with MO1-Eucalyptus Thadi. Pws1 and 2 have cogently and consistently spoken about manner of attack and occurrence.

Evidence of Pws1 and 2 is assailed on the ground that they being related to Munusamy or as partisan of witnesses and their evidence is

unreilable. Merely because a person is related to the deceased that witness cannot be termed as partisan and unreliable witness. Evidence of

witness is not to be disbelieved simply because he is related to the deceased. Evidence of PWs 1 and 2 is to be weighed whether at the time of

occurrence whether they were present or not and whether they are telling the truth or not. By perusal or Pws.1 and 2 we find that despite lengthy

cross-examination nothing substantial was elicited to shake their testimony. Evidence of PWs 1 and 2 is unimpeachable and credit worthy.

Evidence of PWs 1 and 2 is also strengthened by the objective finding during investigation. In our considered view upon analysis of evidence Trial

Court rightly concluded that prosecution has established that first accused has caused fatal injury to the deceased.

The perusal of the entire evidence and the exhibits marked in the trial Court, P.W.1 & 2 not only related to the deceased but also to the

accused and their evidence is co-gent and they deposed the presence manner of attack and other circumstances in the trial Court, which is un

assailable and highly natural.

The learned Counsel appearing for the appellants/accused further contend that no independent witnesses were examined in this case.

Admittedly, the entire occurrence took place in the fields belonging to the accused as well as the deceased. While so, the possibility of independent

witnesses highly impossible and the learned trial Judge also discussed the presence of the independent witnesses and the reasons for the non

examination elaborately.

The learned Counsel appearing for the appellants/accused further submits that the non recovery of blood stained clothes by the investigating

officer would prove that P.W.1 & 2 were not present in the scene of occurrence. When ocular evidence adduced by the witnesses are cogent and

reliable the failure to recover the blood stained clothes of the witnesses is not fatal to the case of the prosecution.

The learned Counsel appearing for the appellants/accused further argued that taking into consideration the entire evidence adduced by the

prosecution, the offence committed by the accused would not attract the offence u/s 302 I.P.C. but it will fall only u/s 304 (ii) I.P.C. It is further

submitted by the learned Counsel appearing for the appellants/accused that the 2nd appellant/second accused cannot be claimed to be shared the

common intention with first accused.

We able to see some force in the argument of learned Counsel appearing for the appellants that the offence committed by the accused would

not attract the offence u/s 302 I.P.C., the facts of the case of the prosecution and the manner of attack by first accused on the deceased and

having regard to the trivial nature of the origin of the dispute. The first accused acted in a sudden quarrel due to sudden provocation and there is no

pre-meditation to commit the crime.

The last submission made by Appellant/Accused is that the entire evidence adduced by prosecution would not attract an offence u/s 300 IPC,

but it would fall u/s 300 Exception IV. Now, the question before us is, whether the act of the accused would attract Exception IV to Section 300

IPC.

Exception 4 to Section 300 IPC reads as follows:

Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden

quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender''s having

taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within

Exception 4 all the ingredients mentioned in it must be found. It must further be shown that the offender has not taken undue advantage or acted in

cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''.

Deceased Munusamy accosted Pachaiammal and which brought second accused to question the deceased. On seeing the wordy altercation

between deceased, Pachaiammal and second accused, first accused rushed to the place after picking MO1-Eucalyptus Thadi and inflicted one hit

on the head of the deceased. The entire incident was unexpected and in a sudden quarrel.

The learned Counsel appearing for the appellants/accused further submitted that the weapon used by the first accused is only a eucalyptus

stick, which is not a lethal weapon. By giving one blow to the deceased, it cannot be said that first accused had taken undue advantage of the

situation. So, we safely arrive at the conclusion that the act of the first accused would fall only u/s 304 Part II IPC, but not u/s 302 IPC.

The evidence of prosecution clearly shows that the second accused caught hold of the hands of the deceased even prior to the arrival of the

first accused with a stick to the place of occurrence. Therefore, even if there is intention to commit murder of the deceased by the first accused

would not have known to the second accused. The mere knowledge of the first accused that his act may cause the death of the deceased without

any intention to commit the murder, will fall only u/s 304 (II) IPC. The common intention shall be based on pre-mediation and meeting of minds or

which can also be formed on the spot. But in the instant case, there is no evidence to show that there was sharing of common intention or prior

meeting of minds or intention formed on the spot where the occurrence took place. Hence in our view, the second accused cannot be said to have

shared the common intention to sustain the conviction u/s 302 r/w 34 I.P.C.

In the result, the appeal is allowed in respect of second accused/second appellant and the judgment under challenge is set aside. The second

appellant/second accused is found not guilty of the offences for which he was charged, tried and convicted and accordingly, he is acquitted. Fine

amount paid by him is ordered to be refunded to him.

(ii) Insofar as the first appellant/first accused is concerned, this appeal is allowed in part. The first appellant/first accused is found guilty of the

offence u/s 304 (II) IPC, instead of Section 302 IPC. Accordingly, the sentence of life imprisonment imposed u/s 302 IPC is modified and the first

appellant/first accused is sentenced to undergo Rigorous Imprisonment for a period of five years for the offence u/s 304 (II) IPC. The fine amount

of Rs. 10,000/= imposed by the trial Court for the offence u/s 302 IPC, shall be treated as the fine imposed by this Court for the offence u/s 304

(II) IPC.