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84 paragraphs · 1,990 wordsN. Dhinakar, J.—Criminal Appeal No.591/90 is by accused 1 and 5 and Criminal Appeal No.601/90 is by the second accused in Sessions
Case No. 159/89 on the file of the learned Sessions Judge, Chengalpattu, and in this judgment they will be referred to as the first accused (A1)
fifth accused (A5) and second accused (A2) respectively for the sake of convenience. They were tried along with five other accused who were
acquitted. The acquitted accused will be referred to as A3, A4, A6, A7 and A6 in the manner they were arrayed before the trial court.
Under charge No. l Al to A 8 were charged u/s 147 I.P.C. on an allegation that at 9.45 p.m. on 8.5.1989, all the accused formed themselves
into an unlawful assembly near Muniyandi Vilas Hotel belonging to P.W.1 at Tiruttani, with a common object of causing the death of Ramar, son of
Paramasiva Thevar and under charge No.2 A1 to A8 were charged u/s 302 r/w. 34, I.P.C. on an allegation that in the course of the transaction
and in furtherance of the common intention with each other to commit the murder of Ramar, Al, A2 and A5 beat him each with a casuarina stick on
the left side head, cheek and shoulder, A3 and A4 fisted and held him, while A6, A7 and A8 kicked him as a result of which, the said Ramar died.
The case of the prosecution is this: P.W. 1 was running a non- vegetarian hotel in the name and style of Muniyandi Vilas Hotel at Tiruttani. The
deceased was preparing mixture in a shop which was south east to the shop of P.W. 1 and supplying the same to the shops. Al was running a
cool-drinks shop, which was adjacent to the shop of P.W. 1 P.W.3 is the brodier of P.W. 1 and the deceased is the senior paternal uncle of
P.W.2. All of them were residents of Tiruttani, having come and settled from Madurai.
On 7.5.1989, Al to A3 went to the hotel belonging to P.W.1 and had food for Rs.25/- when P.W.1 asked them to pay, they refused. While
leaving the hotel, they also took six raw eggs from the hotel. A1,A2 and A5 returned to the hotel on 8.5.1989 at 9.00 p.m. and had food for
Rs.26/-. When P.W. 1 questioned, they refused to pay and stated that P.W.1 is after all running the shop only on account of their grace. At that
time, the deceased went there and advised them to pay the amount telling them that both the accused and P.W.1 are living by doing business.
Immediately, Al, A2 and A5 taking M.Os.1,2 and 3, Casuarina sticks, respectively, which were lying there, beat the deceased on the left side of
the head. A3 also beat the deceased on me left shoulder. A5 kicked him. The occurrence was witnessed in the illumination drown by a tube light
which was burning. The deceased fell down and he was administered water but, he died. P.W.1 proceeded to Tiruttani police station, where he
gave a complaint, Ex. P. l to P.W.9 the Sub Inspector of Police, at 11.00 p.m. who on the basis of the said complaint, registered a case in Crime
No.630 of 1989 under sections 147, 323, 506 and I.P.C. by preparing printed First Information Reports. Ex.P.4 is a copy of the same. Express
reports, were sent to the higher officials.
Investigation was taken up by P. W. 10 the Circle Inspector of Police, Tiruttani Circle, P.W. 10 on taking up investigation reached the scene of
occurrence at 0030 hours on the night of 8/9.5.1989 and in the presence of witnesses, prepared an observation mahazar, Ex.P.5 and drew a
rough sketch, Ex.P.6. He also seized M.Os. l to 5 under a mahazar Ex.P.7. The scene of occurrence and the dead body were caused to be
photographed. Between 1.80 a.m. and 3.00 a.m. he conducted inquest over the dead body in the presence of panchayatdars and at the time of
inquest. P.Ws. l to 5 were examined and dieir statements were recorded, Ex. P. 8 is the inquest report. After the inquest, the dead body was sent
through a police constable P.W.7 along with a requisition Ex.P.2 for conducting autopsy.
On receipt of the requisition and the dead body P.W.6 the Civil Assistant Surgeon attached to Government Hospital, Tiruttani conducted
autopsy on the dead body of Ramar at 3.30 p.m. on 9.5.1989, and found the following external injuries on it;
Diffused contusion with ecchymosis around left eye extending below over the left molar region left side face and extending above to the temporal
region of scalp left side about left car.
Lacerated wound 1 cm x 1/2 cm x 1/2 cm in front of the left ear.
Oozing of blood through the left auditory canal of the left ear. Dried blood-stains on the left ear pinna
A linear contusion about 8 cm x 4 cm on the middle of the left arm.
A linear contusion 5 cm x 4 cm on the left side chest wall at the level of the 10th rib costochondral junction.
Abrasion 3 cm x 2 cm posterior aspect of the left below.
Abrasion 3 cm x 2 cm over the right knee. He issued Ex.P.3 the post-mortem certificate with his opinion that the deceased would appear to
have died due to the head injury.
P.W. 10 in the meantime, searched for the accused; but he could not trace mem, A3, A4, A5 and A8 were arrested during the course of his
investigation at 6.30 p.m. on 9.5.1989 at Tiruttani Hills. They were brought to the police station and locked up. Al, A2, A6 and A7 were arrested
at 11.00 p.m. on 10.5.1989 at Kannihapuram in Tiruttani. They were also sent to the court for remand. The material objects seized in the case
were forwarded to the court with a request to send them for analysis. P.W. 10 went on leave and the Circle Inspector of Police (Crimes) took up
investigation and after verifying the investigation conducted by P.W. 10 he laid a final report against the accused on 25.5.1989.
When questioned u/s 313 Cr.P.C. the accused have denied their complicity and stated that they were taken from their houses and the case was
foisted upon mem. On the evidence adduced, the learned Sessions Judge, held that Al to A8 have to be acquitted under charge No. 1 framed u/s
147 I.P.C. and accordingly, acquitted them. Under charge No.2 while he acquitted A3, A4, A6, A7 and A8, he convicted A1, A2 and A5 u/s
302 r/w. 34 IPC. and sentenced them to imprisonment for life. Hence, the above two appeals.
It is the case of the prosecution mat the occurrence took place at about 9.45 p.m. on 8.5.1989 and that the deceased was beaten to death by
the accused with casuarina sticks. The learned Sessions Judge finding contradictions in the evidence of the witnesses as regards the part played by
A3, A4 and A6 to A8, acquitted them while he held that the witnesses were consistent as regards the part played by Al,A2 and A5.
The prosecution before the trial court examined five witnesses as eye-witnesses and they are P.Ws. 1 to 5. P.W.1 is the owner of the hotel
where the occurrence took place and P.W.2 is the nephew of the deceased. P.W.3 is the brother of P.W.1, P.Ws.4 and 5 are the neighbours.
According to P.W.1 on 7.5.1989, Al to A3 went to the shop of P.W.1 and took food but did not pay. They also took six raw eggs from the hotel
of P.W.1. On 8.5.1989, Al, A2 and A5 went to the hotel of P.W.1 and had food and when asked for money, they refused to pay. The deceased,
who was preparing and supplying mixture to the shops, reached there and questioned the accused. Thereafter, Al, A2 and A5 took a casuarina
stick each, which were lying there, and beat him. The evidence of the prosecution witnesses as regards Al, A2 and A5 is consistent. All, of them
have stated that A1, A2 and A5 had beaten the deceased with sticks. Therefore, there can be no doubt that the deceased was beaten with sticks
by Al, A2, A5. The post- mortem doctor, P.W.6 who conducted autopsy and issued Ex.P.3 the postmortem certificate, has also opined that the
deceased died on account of the head injury sustained by him and that the injury could have been caused by the sticks, MOs. 1 to 3. On the
evidence, there can be no doubt in our mind that Al, A2 and A5 have caused the injuries on the deceased.
The next question that is left to be decided by us, is the nature of the offence committed by Al, A2 and A5. Learned counsels appearing for Al,
and A5 in bom die appeals strenuously contend that the occurrence had taken place in a sudden fight without any pre- meditation as admitted by
P.W.1 in cross-examination. P. W. 1 has, in his cross-examination, stated that at 9.00 p.m. on 8.5.1989, there was a quarrel between himself and
Al. He further stated that at 9.30 p.m., the occurrence took place and thereafter, altered his version by saying that at 10.00 p.m., there was a
quarrel and in the quarrel, all the three accused beat the deceased. It is also the admitted case that the accused had no motive against the
deceased. There was an altercation between P.W.1 on the one side and Al, A2 and A5 on the other. The deceased, who came there questioned
and advised them to pay. He was beaten. Al, A2 and A5 admittedly were not armed at the time of incident. They took the sticks, which were lying
at the scene and beat the deceased. The facts indicate that Al, A2 and A5 had beaten the deceased upon a sudden fight in the heat of passion
without any premeditation. The post-mortem doctor, P.W.6 also found only'' one injury on the head and according to him, the said injury with its
corresponding internal injury is fatal. The witnesses have stated that Al, A2, and A5 and have beaten the deceased on the head. According to the
prosecution, three people had beaten the deceased on the head; but only one injury was noticed by the post-mortem doctor. On the evidence, we
are not able to attribute the fatal injury to any one of the three accused since the evidence is not definite as to who caused the fatal injury. As there
was no common intention among the accused to cause the murder and in the absence of any definite evidence as to who caused that fatal injury,
we are left with no their alternative except to convict all the appellants/A 1, A2 and A5 u/s 324 r/w. 34 I.P.C.
In that view of the matter, the conviction of Al, A2 and A5 u/s 302 r/w. 34 I.P.C. is set aside and instead they are now convicted u/s 324 r/w.
34 I.P.C. and for the said conviction each of diem is sentenced to suffer rigorous imprisonment for a period of 3 three years) and also, each of
them is directed to pay a fine of Rs. 10,000/-(Rupees ten thousand only). In default of payment of fine, each of them will suffer rigorous
imprisonment for a period of 9 (nine) months.
It is submitted on behalf of the appellants Al, A2 and A5 that the fine amounts will be paid within 2 (two) months from today and accordingly,
they are directed to pay the fine amounts in the court of the Judicial Magistrate No. II, Tiruttani.
The appeals are dismissed with the above modifications in conviction and sentence. The learned Sessions Judge will take steps to commit Al,
A2 and A5 to jail to undergo the remaining period of sentence.