Muthu @ Durai Pandi @ Muthulingam, Esakkipandi, Velu and Masanam vs State

V.S. Sirpurkar, J.—This appeal is at the instance of the four accused, three of whom have been convicted with the aid of Section 34, I.P.C.,

while the fourth accused - Masanam, has been convicted for an offence punishable u/s 302, I.P.C., simplicitor.

This is a classic example of how our caste system has permeated into the day-to-day life, giving rise to the dastardly crimes.

Meignanapuram is a small hamlet. The members of both the communities, viz., Thevar community and Scheduled Caste community, live there.

While all the accused persons belong to the Thevar community, the deceased Sekar belongs to the Scheduled Caste community. The incident was

conceived on 17.5.1992 when Sekar has called one Narayanan by his name. Taking that to be a great insult, there was a panchayat held, and

there was also a compromise effected at. This was done on 18.5.1992. However, it seems that the accused persons did not brook this insult of

being called by name by a Scheduled Caste member. Therefore, the incident seems to have happened on 20th of May, 1992.

The prosecution story is that the deceased Sekar, along with P.W.1, Sundar alias Rajeswaran and P.W.2 Chinnathambi, were coming back

from the nearby coffee shop after taking coffee. At that time, the accused persons Muthu, Esakki Pandi and Velu Thevar, A1, A2 and A3

respectively, were going. It is at that time, the assault took place at the instance of A4 - Masanam, who, probably, was following these three

accused persons. Finding Sekar and his two associates, A4 - Masanam tried to assault P.W.1 - Sundar alias Rajeswaran, and at that time, that

assault was averted because of the intervention of Thavamani Thevar, and immediately, the assailant A4 - Masanam, changed his direction and

gave aruval (billhook) blows and cut Sekar.

The case of the prosecution is that when Sekar started running away after the initial assault, he was stopped by the accused A1, A2 and A3, so

that he becomes available for further assault by A4 - Masanam, and thereafter, A4 - Masanam further assaulted Sekar, who, probably, died on

the spot. All these took place between 7.45 to 8.00 am. Thereafter, the report of this incident was made by P.W.1 - Sundar alias Rajeswaran and

PW.2 - Chinnathambi in Authikadu, within the jurisdiction of Meignanapuram, the small hamlet.

The Investigating Officer registered the case in the afternoon and then visited the spot immediately. It seems that the inquest report was prepared

somewhere in the afternoon, and the body was sent to post-mortem immediately at about 4 O'' Clock. The post-mortem report - Ex.P7 suggested

that the deceased had died due to the assault and hemorrhage, and because of the injuries in the vital parts, resulting in shock. The accused

persons came to be arrested in another two days. On the basis of the report of the Investigating Officer after completion of investigation and filing

of charge sheet and after the committal proceedings were over, the matter was made over to the Sessions Judge.

Before the Sessions Judge, the defence was that, in fact, due to the prevailing enmity between the two communities, the said Sekar was done to

death by somebody and it was only due to suspicion, the accused persons were roped in. A further defence haltingly taken was that of the private

enmity. However, the defence does not prevail and the accused persons came to be convicted as under.

Before the Sessions Court, the prosecution examined two eye-witnesses P.W.1 and P.W.2 and the other two witnesses, they being P.W.3 -

Selvakumar and P.W.4 - John alias Thangadurai, in support of their case. It was also pointed out by the prosecution that during the investigation,

the fourth accused had discovered the place where the aruval (billhook) was hidden by him and that the aruval (billhook) was blood-stained. It

was also sought to be proved that there was a motive of previous enmity between the accused persons and the deceased. It was on this basis that

the learned Sessions Judge thus came to the conclusion that the offence of murder punishable u/s 302, I.P.C. was proved as against the fourth

accused, while, the other three accused, they being accused-1 to 3, shared the common intention to commit the murder. Feeling aggrieved by this

verdict, the present appeal is filed before us.

The learned counsel took us through the evidence of eye-witnesses as also the documentary evidences, such as the port-mortem report and the

first information report. The whole thrust of arguments was that the prosecution had miserably failed to prove beyond reasonable doubt that the

four accused persons were perpetrators of the crime. The learned counsel took us through the evidence of P.Ws.1 and 2 to begin with, to suggest

that in fact there was a caste background to the whole crime inasmuch as Sekar, the deceased had called Narayanan by his name and that was felt

as an insult, because of which, there was a panchayat held and the matters were actually solved. The learned counsel tried to suggest that if the

matters were solved in the panchayat, then there was nothing for the accused again to assault the said deceased and/or his party. Thus, the

gravamen of the contention is that there was hardly any motive available to the accused persons to commit the above crime. The question of motive

has to be put behind, once there is a direct testimony available. Unfortunately, for the accused persons in this case, such direct testimony was

available in the evidence of P.W.1 and P.W.2.

P.W.1, in his evidence, has given a graphic description of the background. He has referred to the incidents of 17.5.1992 and 18.5.1992. He

has also referred to the fact that on 18.5.1992, Sekar was obstructed by the fourth accused, and on his threat that his head will be severed, Sekar

had taken the aid of his brother. P.W.1 has also deposed that he had told this to P.W.4 - John alias Thangadurai, on which, P.W.1 and P.W.4 -

John alias Thangadurai again met the elderly persons of Thevar community and again settled the matter. P.W.1 refers to the incident of 20th May

1992 that while he and P.W.2 Chinnathambi, as also Sekar, were returning from the coffee shop, A1 to A3 obstructed them and A4 - Masanam

attempted to cut P.W.1.

When we go closely through the evidence of P.W.1, it would be seen that he had stated in the Court that the assault was made by A4 -

Masanam, not on the deceased, but on himself. He points out that when A4 - Masanam tried to assault him, Thavamani Thevar, who was present,

thwarted that attack. It is only thereafter that he refers to the assault by the fourth accused on Sekar. It is very significant to note here that P.W.1,

till then, did not refer to the accused persons A1, A2 and A3. It cannot also be made out from his evidence that all the four accused came

together. It is obvious from the evidence that the first three accused were ahead, while the fourth accused was behind them. The witness then goes

on to graphically describe the assault on Sekar and suggests that, sensing the assault and being injured, Sekar then started running helter and

skelter; but he was stopped by the other three accused, A1, A2 and A3, so that he becomes available for further assault by A4 - Masanam.

The learned counsel suggests, and in our opinion, rightly, that the witness has not told in what manner was Sekar stopped. The words used in

Tamil ""Xltplhky; tHpkwpj;jdh;"", meaning stopped or prevented from running. However, it is to be noted that the witness is completely silent in the

manner in which the other three accused persons stopped Sekar. Again, it is very difficult to accept that, after being assaulted in a very serious

manner by the fourth accused, how Sekar would be in a position to run hither and thither. Therefore, this part of the story appears to be unnatural,

and the story of subsequent assault by the fourth accused appears to be less natural. When we go through the cross examination of this witness,

there is hardly any cross examination on the main incident of assault. On the other hand, there are some suicidal suggestions given, which establish

the presence, not only of the fourth accused on the spot, but also of this witness, along with the other witness P.W.2, namely, Chinnathambi. The

suggestions also establish the presence of the other accused persons. However, the question would be whether their mere presence would, by

itself, be sufficient to convict them with the aid of Section 34, I.P.C. We propose to examine this question in the later part of this judgment when

we appreciate the evidence of P.W.2, who is the only other eye-witness.

Be that as it may, there has been little or no cross-examination of P.W.1 on the question of assault. The evidence witnessed insofar as the

assault is concerned, appears to be less natural. He has not exaggerated the evidence in any manner and his presence on the spot can also not be

doubted, when it is corroborated by the evidence of P.W.2. That apart, it is clear that it is only this witness who has gone and reported the matter

to the police station almost immediately. It could be seen that the police station was 8 kms away from the spot. According to the learned defence

counsel, it was 6 kms. It could be seen that this discrepancy of 2 Kms. clearly makes no difference, when the matter remains that it was this

witness and P.W.2 who went to the police station, which is also corroborated by the evidence of P.W.10-Ganapathy, who refers to both P.Ws.1

and 2. There is no cross-examination to P.W.10 on this issue. Therefore, the evidence of P.W.1 can be safely accepted at least in so far as the

assault is concerned.

It was tried to be stated that there are some discrepancies in the matter of First Information Report. While according to P.W.1, he had written

the First Information Report himself, according to P.W.2, he had dictated it and then some other person had written it. That, again, is completely

immaterial so long as the First Information Report has been proved properly. It was, therefore, suggested that the First Information Report was not

proved properly and that there were some discrepancies in the initials of P.W.2 - Chinnathambi. All these could have been put to P.W.10 in the

cross examination, but his evidence has not been challenged by any cross-examination. Therefore, it cannot be disputed that P.Ws.1 and 2

reached the police station to make a report.

In his further cross-examination, P.W.1 has given some fantastic suggestions that it was Sekar who wanted to assault Narayanan, but

unfortunately, it is not the case of the accused persons in their examination u/s 313, Cr.P.C. That apart, the story of Narayanan being present on

the spot appears to be completely a myth, not established in the cross-examination in any manner. That only suggests the truthfulness of the

prosecution story.

The learned counsel also made a serious criticism that Thavamani Thevar was not examined by the prosecution. True it is, that he could have

been examined by the prosecution. However, his non-examination would be of no consequence, particularly because the prosecution has safely

and completely relied upon the evidence of these two witnesses, who were not shaken in their cross examination at all.

P.W.2 has supported the version of P.W.1. He has also tried to tell the same story in so far as the three accused persons are concerned. Even

insofar as accused No.4 is concerned, he has given a completely corroborating version of the assault. He has also tried to say that after the assault

on Sekar, Sekar tried to run away, when he was stopped by the other three accused persons; but beyond this, no role is attributed by P.W.2 to

the presence of the first three accused. It is also very significant that during the investigation there was no attempt made to collect the clothes of

accused Nos.1, 2 and 3. It cannot be imagined that if the accused persons prevented sekar or stopped him from running, they would have come in

contact with the blood of deceased, as it is stated that Sekar was profusely bleeding because of the aruval - billhook blows. Any such evidence

regarding the blood-stained clothes of the first three accused persons could have given some clue. But in the absence of any such corroborating

evidence and the sketchy role that has been given to them by merely preventing Sekar from running away, it is difficult to hold that the first three

accused actually had the murder in mind. We will come to the question of intention on the part of the accused persons in the later part of the

judgment. However, it cannot be said that the evidence of these two witnesses, could be shaken in any manner, in their cross-examination.

If the ocular testimony of these two witnesses is accepted, as has been done by the learned Sessions Judge, there would really be no necessity

of any other evidence, to convict at least the fourth accused. In addition, we have the evidence of P.W.3 Selvakumar, Village Administrative

Officer. He is also a witness on the discovery statement made. The fourth accused had, in his statement, while filing Ex.P2, has taken the police

party to a thorny shrub, taken an aruval (billhook) and handed it over to the Inspector of Police. Eventually, this aruval (billhook) was sent for

chemical examination and the presence of human blood was then found to be belonging to ""AB"" Group. The result of the chemical examination of

the clothes of the deceased only shows that the blood group of the deceased was ""AB"". Therefore, it is obvious that the aruval (billhook) contained

blood stains for which no explanation is coming forth from the fourth accused. The discovery evidence was tried to be assailed by the learned

counsel by suggesting that the discovery was of farcical nature. Considering the evidence of P.W.3 and the evidence of investigating officer, we do

not think so. The further fact that the discovered aruval - billhook had ""AB"" Group blood and the fact that both the witnesses have described the

assailant to be with an aruval (billhook) would go to suggest that that was the aruval (billhook) which was used in the crime. There is no other

explanation coming forth from the accused in this behalf.

Besides this, we have the evidence of P.W.4 - John alias Thangadurai, who spoke about the previous day''s incident, with which, really we are

not concerned particularly in view of the ocular testimony of P.W.1 and P.W.2. It is therefore obvious that it is proved beyond reasonable doubt

that the assault was made on Sekar by the fourth accused with an aruval (billhook), and as a result of that assault, Sekar died an instantaneous

death.

The learned counsel for the defence took us through the post-mortem report and tried to point out that from the evidence of the doctor, it

could be established that the death was much earlier than the time, claimed by the witness. We see from the post mortem report that the opinion of

the doctor is that the death could have occurred six hours prior to the port mortem examination. The post mortem examination was held at 4 O''

clock in the afternoon. The doctor suggested that the death could have occurred six hours prior to post mortem. Hence, there was a possibility of

death at 10 O'' clock in the forenoon. However, the doctor has also indicated a four hours'' margin. Therefore, the death could have occurred

between 6 O'' Clock and 10 O'' Clock. But the learned counsel also points out that there was undigested food in the stomach of the deceased,

and that therefore, the death must have occurred three hours after food was consumed which could be by 9 O'' Clock or 10 O'' Clock in the night.

If the undigested food stuff was found in the stomach, then the death would have occurred much earlier to 6 '' O Clock. The learned counsel

submitted that it was for the prosecution to apprise as to when the deceased had his last supper or food, as the case may be. All these are not

necessary. The fact remains that the deceased was seen alive by the two witnesses at 7.45 a.m. and their testimony could not be demolished. Not

only this, but the suggestions also make it clear that it was the deceased who himself tried to assault A4 - Masanam. If it is suggested by the

defence that Sekar was alive even at 7.45 a.m., that would knock out the case that Sekar died somewhere prior to 6 O'' Clock. We are of the

clear opinion that the prosecution has been able to establish by the evidence of P.Ws.1 and 2 that the death has occurred in between 6 O'' Clock

to 10 O'' Clock, and more particularly, by 8 O'' Clock in the morning. This brings us to the question of the offences against the accused-1 to 3.

The learned counsel contended that there was nothing to suggest that there was a meeting of minds on the part of the three accused, A1, A2

and A3 on the one hand and A4 - Masanam on the other. He also pointed out that it was not as if when A4 - Masanam was brandishing his aruval

(billhook) so that the other accused persons knew that A4 - Masanam was armed with the deadly weapon like aruval (billhook). The learned

counsel, therefore, contends that in view of the fact that the sudden assault was made by A4 - Masanam, even if that is taken to be established,

there is nothing to suggest that A1 to A3 shared the same common intention. The learned counsel contends, and in our opinion, rightly, that the

evidence suggests that all the accused did not come together. On the other hand, there is an evidence on record that the three accused persons A1,

A2 and A3 were in one group, whereas, A4 - Masanam followed them. The learned counsel is undoubtedly right in saying that the prosecution did

not collect or present any evidence regarding the previous meeting of minds of the accused persons and regarding the place where those four

persons were, before the incident of assault took place.

The learned public prosecutor, however, suggests that the intention could develop even at the spot. He suggests that the act on the part of the

first three accused persons in stopping or preventing Sekar from running away, by itself, speaks volumes about the intention on the part of the

accused persons. He suggests that if they had not been able to stop Sekar, may be, Sekar could have escaped the death. Considering the injuries

on Sekar, that does not seem so.

When we go through the evidence of the doctor, it is seen that Sekar had suffered as many as twelve injuries. The description of Injury No.1 is

stated to be an irregularly shaped lacerated injury extending from left cheek to right angle of mandible passing through muscles, nerves, vessels,

oesophagus, trachea ,brain and in between upper and lower jaw 21 cms. depth and 8cms. breadth. It is obvious that the injury was made with

extreme force. The second injury is also stated to be a cut injury extending from right side of nose up to root to the right side of chin. The third

injury is stated to be an elliptical cut injury extending from front of right humorus to lower border of scapula 24 cm X 5 cm X bone deep. The

fourth injury is stated to be a vertical cut passing between right middle and ring finger 4 cm x 3 cm. X bone deep. The fifth injury is stated to be an

incised wound of 1/2 cm. X 1/2 cm x skin deep over middle phalanges of right index finger. The sixth injury is stated to be an elliptical wound over

dorsal aspect of middle of kruckle of all the fingers of left hand except thumb and are hanging. The seventh injury is stated to be an eleptically cut

wound over left shoulder extending from left clavicle upto 7 cm. below 7cm x 3 cm. X skin deep. The eighth injury is stated to be an eleptically cut

wound of 2 cm. X 1/2 cm x skin deep just below the right knee. The ninth injury is stated to be an eleptically incised wound over dorsum of foot 5

cm x 3 cm x 1 cm. The tenth injury is stated to be a vertically cut wound passing between 3rd and 4th toe up to medical mallgous completely cut

and hanging by skin over dorsal aspect. The eleventh injury is stated to be an abrasion of 1 cm x 1/2 cm. X skin deep of elliptical shape and the

twelfth injury is stated to be an incised wound over parietal region 4 cm. X 4 cm. X bone deep. The injuries other than injury Nos.1 and 2, upto

injury No.11, appear to be relatively small but not less serious, more particularly, injury No.7, which is a cut wound over the left shoulder,

extending from left clavicle upto 7 cm. below 7cm x 3 cm. X skin deep. So also injury Nos.10 and 12 are of extremely serious nature, injury

No.10 being a vertically cut wound passing between 3rd and 4th toe upto medical mallgous completely cut and hanging by skin over dorsal aspect

and the twelfth injury being an incised wound over parietal region 4 cm. X 4 cm. X bone deep. Under such circumstances, it is difficult to imagine

that after an assault, Sekar had actually tried to run away. It is again not clear as to what exactly was done by A1, A2 and A3 against which part

of the body of Sekar. Merely suggesting that they stopped him from running away is too general, in our opinion. The witnesses are expected to

give exactly the nature of the act on the part of each accused. That, unfortunately, has not been done. The benefit should go to the accused. We

are of the clear opinion that the prosecution has not been able to establish that accused Nos.1, 2 and 3 shared the same common intention of

murdering, with the fourth accused. Insofar as the intention of the fourth accused is concerned, it is clear that it comes within the third limb of

Section 300 I.P.C., that those criminal acts were sufficient to cause the death and we have no doubt that the fourth accused intended to cause

those injuries. Therefore, the finding of the Sessions Judge was absolutely right to convict the fourth accused for the offence u/s 302, I.P.C.

However, we do not agree with the Sessions Judge in convicting the first three accused also. In our opinion, the first three accused would be

entitled for acquittal. Therefore, insofar as the first three accused are concerned, the appeal is hereby allowed. The sentence imposed on the first

three accused is set aside and they are directed to be set free, unless they are wanted in any other offence. The appeal of the fourth accused,

however, is dismissed and the verdict, version and the resultant sentence are confirmed.

With this, we dispose of the criminal appeal as stated above.