Shanmugaiah @ Thindan vs State by Inspector Police, Alankulam

Padmini Jesudurai, J.—These appeals are by A.1 and A.2 respectively in S.C. No. 137 of 1985 on the file of the First Additional Sessions Judge, Tirunelveli. The Appellant in C.A. No. 898 of 1985, who will hereinafter be referred to as the Appellant, has been convicted for an offence u/s 304 Part I read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for a period of seven years, whereas the Appellant in C.A. No. 942 of 1985 has been convicted for an offence u/s 304 Part I of the Indian Penal Code and sentenced to undergo imprisonment for a period of seven years. The Appellant in C.A. No. 942 of 1985 is now dead and the charge against him abates. C.A. No. 898 of 1985, therefore, is taken up for arguments.

The gravamen of the charge against the two accused was that on 9-10-1984 at 9 A.M. in Seeral Kadu they caused the death of the deceased Niraikulathan, aged 70. Both the accused in furtherance of the common intention caused his death, A.2 by hitting with M.O.2 grinder stone on his right leg and A.1 by hitting with the handle portion of the spade M.O.1 on the left leg.

The prosecution case is as follows: The deceased had four daughters and two sons. A.1 had married one daughter and A.2, another daughter. P.W.3 is the son of the deceased, while P.W.4 had married another daughter of the deceased. Udayammal, the wife of the deceased had some properties settled on her by her mother in 1970. She had originally desired that these properties should go to her married daughters. About 5 or 7 months prior to the occurrence, the deceased had persuaded Udayammal to execute a registered will bequeathing the properties to her sons, on the ground that the daughters had been well settled in life. Both the accused were dissatisfied with this will and there was enmity between them and the deceased. They had periodically threatened that the deceased was responsible for the will and he would be done away with.

About seven days prior to the occurrence, the youngest daughter of the deceased who had been married to P.W.4 was due to deliver a child and had been taken to the hospital at Alankulam, from where she was directed to be sent to the Government Hospital, at Tirunelveli. Udayammal, the wife of the deceased had accompanied her daughter and was staying in Tirunelveli hospital. Even four years prior to the occurrence, the deceased and his wife had taken up residence in the garden house in Seevalarkulam, situated in the midst of their lands. When Udayammal left for the hospital, P.W.1, who is the grandson of the elder brother of the deceased and who is also the son-in-law of the Appellant, had been required to stay with the deceased in the garden-house.

On the day of the occurrence, the deceased and P.W.1 were lying in the garden house with the light burning. At 9 P.M. the Appellant accused and the co-accused came there and started abusing the deceased for having been responsible for executing the will in favour of the sons. The deceased had pacified that the matter could be talked over the next morning. Uttering certain threatening words, the Appellant took M.O.1 spade which was lying outside the shed and beat on the left leg of the deceased with the handle portion of M.O.1. The deceased fell down and A.2 took M.O.2, grinder stone which was also lying outside and threw it on the left leg of the deceased. P.W.1 got scared and ran to the village which was 2 K.Ms. away. The deceased raised an alarm and P.W.2 who was living in the neighbouring garden about 40 yards away with his parents, heard the alarm and rushed to the scene. They found the deceased unable to walk and was crawling on his knees from his tomato garden. They lifted the deceased and brought him to the garden shed and made him lie down on a mat. They questioned the deceased as to what happened and the deceased told them that the Appellant beat on his right leg with M.O.1 while A.2 beat with the grinder stone, M.O.2 on his left leg and that this was due to the property dispute between them. Sometime later, P.W.1 returned from the village along with P.W.3, the son of the deceased. There were blood stains between the garden shed and the tomato garden. P.W.1 questioned the deceased as to why there were blood stains and the deceased told him and P.W.3, that after he was beaten the Appellant and A.2 dragged him by his shirt to the tomato garden and left him there. P.Ws.1 and 3 took the deceased in a cart to the police station at Alankulam, where at 1 A.M. on 10-10-1984, the deceased gave Ex.P.1 statement to the Sub-Inspector of Police, P.W.5 who recorded it to the dictation of the deceased and after reading it over to him obtained his thumb impression. P.Ws.1 and 3 attested Ex.P.1. P.W.7 registered Ex.P.1 as Cr. No. 205 of 1984 of Alankulam station for an offence u/s 307 of the Indian Penal Code. The deceased was sent to the Government Hospital, Tirunelveli where P.W.6, the Medical Officer there admitted him at 2.45 A.M. and examined him.

P.W.6 found the following injuries on the deceased.

A lacerated wound on the left leg 1 1/2" x1/2."

Lacerated wound above the wound No. 1 1/2"x1/2."

Lacerated wound below the left knee 1/2"x1/2"

Abrasion 1/2"x1/2" above the left knee on the thigh.

Lacerated wound 1/2"x1/2" below the right knee.

Lacerated wound 1" x 1/2"in the right leg below wound No. 5.

Lacerated wound in the right palm between the little and ring finger11/2x1/2

Abrasion 1" x 1" on the right buttock. X-ray:

Patient is conscious. G.C. Good. Admitted in accident ward". Ex.P.5 is the wound certificate.

Meantime, on receipt of information about the case, P.W.5 took up investigation and visited the scene of occurrence and at 6.30 A.M. prepared an observation mahazar, Ex.P.15 and thereafter, seized M.O.1 spade, M.O.2 grinder stone and M.Os.8 and 9 blood stained earth and electric bulb, under Ex.P.16 and 17, mahazar. At the scene, he examined P.W.2 and others. The deceased was treated in the hospital and at 7.15 A.M., the same day he died. On receipt of the death intimation, the Section was altered to one u/s 302 of the Indian Penal Code and on receipt of the Indian Penal Code and on receipt of the altered F.I.R, P.W.15 went to the hospital and held inquest. He examined the other witnesses, searched for the accused and found them absconding. P.W.10, the tutor of the Forensic Medicine, Tirunelveli Medical College conducted the postmortem on the dead body of the deceased on 11-10-1984 at 10 A.M. and found on the body the following symptoms and injuries :

Appearances found at the post mortem well nourished male body with early decomposition changes seen.

Injuries noted: 1. A defence cut injury between ring finger and little finger of right hand. It was bone deep.

Abrasions seen over the upper part of the right arm, front of right leg and front of left leg and left thigh.

Lacerated punctured injury measuring 3x2 cms in front of right leg. On exploration, commuted fracture of both bones namely tibia and fibula in middle seen. The area was covered with blood clots.

A lacerated injury 4x2 cms. on the front of lower 1/3 of left leg. On dissection, it was muscle-deep.

OTHER FINDINGS: a) Heart: All chambers were empty. Coronaries: Patent, with early atheromatous changes, b) Lungs: Pale, c) Stomach contained 300 m.l. of partly digested food material, d) Liver, spleen, kidneys and brain: Pale. Bladder: Empty.

Ex.P.10 is the postmortem certificate. According to P.W.10, the death was due to shock and haemorrhage due to the comminuted fracture of the right leg. The injuries could have been caused by M.Os.1 and 2 at the time alleged and injury No. 1 could have been caused while warding off the beating with a spade like M.O.1.

On 12-10-1984, the Appellant and the co-accused surrendered before the Judicial Second Class Magistrate, Koilpatti. P.W.15 finished the rest of the investigation and laid charge sheet against the Appellant and the co-accused for offences u/s 302 read with 34 of the Indian Penal Code.

During trial on behalf of the prosecution, P.Ws.1 to 15 were examined and Ex.P.1 to P.21 were marked. M.Os.1 to 9 were produced. The accused when questioned u/s 313 of the Code of Criminal Procedure, denied having taken part in any such occurrence. They had no any evidence, oral or documentary. The learned Sessions Judge found that the prosecution had proved its case, but that the offence committed by A.2 would fall only u/s 304 Part I of the Indian Penal Code and convicted him for the above offence and convicted the Appellant for the offence u/s 304 Part II read with 34 of the Indian Panel Code. Challenging the conviction and sentence, the accused had preferred these appeals.

Thiru. N.T. Vanamamalai, learned Senior counsel for the Appellant urged that the evidence of P.W.1 had to be rejected since he should have been in all probability in the Kodai festival in the village, that there was nothing in Ex.P.15, the observation mahazar to show that the deceased and his wife were living in the garden shed, that the presence of P.W.1 is not spoken to by P.W.2, that the defence cut injury found on the deceased has not been spoken to by P.W.1 and as such, the evidence of P.W.1 had to be rejected. Commenting upon Ex.P.1, dying declaration made by the deceased and the F.I.R. in the case, the learned senior counsel would urge that Ex.P.1 had reached the Court only at 4 P.M. on 10-10-1984 after a delay of 17 hours and the explanation of P.W.13 to cover the delay of 17 hours was false. While P.Ws.1 and 3 refer only of one left thumb impression of the deceased, the F.I.R. contains many, and as such, Ex.P.1 had to be rejected. The learned senior counsel would also urge, that the motive to do away with the deceased is remote and was not established, but on the contrary, there was only motive for false implication and that P.W.2 belonging to the minority community there, had been pressurised to give evidence and the grinder stone (M.O.2) was not blood stained and all the documents including Ex.P.1 ought to have been prepared only after the deceased had died.

Per contra, the learned Public Prosecutor by relying upon the salient features of the prosecution case, sought to sustain the conviction and sentence.

The only question that arises for consideration is whether the prosecution has proved its case against the Appellant for an offence u/s 304, Part II read with Section 34 of the Indian Penal Code.

The motive part of the case has been spoken to by P.Ws.1, 3 and 4. Ex.P.3 is the gift deed in favour of Udayammal and Ex.P.2 is the registered will executed by Udayammal in favour of her sons. Ex.P.2 is dated 27-2-1984, i.e. 7 1/2 months prior to the occurrence. A.1 and A.2 are the sons-in-law of the deceased. There is no reason why the evidence of P.Ws.1, 3 and 4 should be disbelieved. P.W.4 is also a son-in-law of the deceased and he has stated that the Appellant and A.2 were disgruntled over Ex.P.2 and wanted him also to join them in opposing Ex.P.2. P.W.4 had refused. Though the learned senior counsel for the Appellant would suggest that the deceased, should have indulged in sale of illicit liquor and could have got himself injured in drunken brawl in the Kodai festival, there is no basis for such a suggestion. The observation mahazar Ex.P.15 shows and it has also been spoken to by P.Ws.1 and 3, that there were blood stains in between the garden shed and the tomato garden. The deceased was put on the mat in front of the garden shed. The blood stained earth has been seized. All these would show that the occurrence had really happened in front of the garden shed and the version of the deceased that he was dragged and left in the tomato garden from where he was crawling, when P.W.2 and party reached the scene and put him on a mat, is amply corroborated.

The question would be whether the Appellant had committed the crime. No doubt there is only the evidence of P.W.1 alone giving evidence as an eye witness. The wife of the deceased, was away in Tirunelveli to look after the youngest daughter. Merely because there was a Kodai festival in the village, it does not mean that P.W.1 should have been present at the Kodai. He had been specifically required to stay with the deceased and as such, P.W.1 could nave stayed with the deceased who was aged about 70. He is the son-in-law of the Appellant and is also related to the deceased. He has taken the deceased to the police station and attested Ex.P.1. Under these circumstances, merely because P.W.2 does not refer to P.W.1, the evidence of P.W.1 would not stand discredited. P.W.1 was aged about 24. His evidence is that as A.2 was talking with his father-in-law, he went towards the east of the garden shed. On seeing the attack on the deceased by A.2, he became panicky, and fled to inform P.W.3. In fact P.W.2 came to the garden of the deceased, after hearing the alarm of the deceased, who had already been dragged to the tomato garden. The Appellant and A.2 had already left the scene and the deceased was crawling to his garden shed. It is only at that stage P.W.2 arrived at the garden of the deceased. In the meantime, P.W.1 had run away. The evidence of P.W.1, therefore, does not stand discredited. It is not seriously challenged that P.W.2 and his parents lived in the Sival field. P.W.2 is not an eye witness and he arrives at the scene, on hearing the alarm after the Appellant and A.2 had left. He does not even know about the presence of the Appellant and A.2 and his evidence, therefore, cannot be rejected merely on the ground that he belongs to a minority community and could have been pressurised to give evidence. He is totally an independent witness and impresses as a truthful witness.

Further, in Ex.P.1, the deceased had stated that on hearing his alarm, Chelliah and his sons who were living 50 yards away in the Maruthaiya Servai land came there and they lifted him and took him to the garden shed. Hence, the evidence of P.W.2 has not been discredited in any manner. His evidence cannot be rejected merely because, he has stated that he does not know about the Kodai festival.

The next piece of evidence is Ex.P.1, the dying declaration made by the deceased, which is the first information report, in the case. Learned senior counsel for the Appellant would attack Ex.P.1 on the ground that while P.Ws.1 and 3 referred only to one thumb impression of the deceased being taken, but, the First Information Report contains more and also on the ground that Ex.P.1 has reached the Court of the Judicial Second Class Magistrate, Tenkasi only at 4 P.M. on 10-10-1984. The deceased had sustained injuries only on the leg, and they are grievous injuries. They would not prevent him from making a statement and that did not make him unconscious. Ex.P.1 cannot be stated to be unduly lengthy. The assailants are none others than his sons-in-law and there is also evidence that a light was burning in the garden shed. There had also been some conversation between the assailants and the deceased. All these would have made it possible for the deceased, to know the identity of the assailants, it is true that Ex.P.1 contains more than one thumb impression of the deceased and P.Ws.1 and 3 say that only one impression was obtained. As far as P.Ws.1 and 3 are concerned, the number of impressions taken would be an insignificant detail. They would never have adverted their mind to this aspect. It is quite possible that they would not have noted as to how many impressions were taken. In the cross-examination of P.W.5, it has been elicited that P.Ws.1 and 3 left for engaging a taxi at the time when he obtained the thumb impressions of the deceased on the First Information Report. Whatever that be, this would not shake the genuineness of Ex.P.1. Nor would the fact that Ex.P.1 has reached the Court only at 4 P.M. that day, be a serious infirmity, since the evidence of P.W.13 gives the details and circumstances, which resulted in the delay in taking Ex.P.1 to the Court. There is no reason why P.W.13 should be disbelieved. There is, therefore, no basis for the suggestion that even Ex.P.1 should have come into existence only after the death of the deceased. Under these circumstances, Ex.P.1 being a dying declaration reduced to writing, is entitled to its due weight. Ex.P.1 does not stand in isolation. It has been preceded by an early dying declaration to P.W.2 and another dying declaration to P.W3. Even P.W.8, the Medical Officer who had treated the deceased, has stated that the deceased was conscious and was able to talk though he was in a state of shock.

I, therefore, accept the evidence of P.W.1 and also the dying declarations made to P.Ws.2 and 3 and also Ex.P.1. The trial Court, therefore, was not in error in finding that the occurrence had taken place in the manner put forward by the prosecution.

The question that still would remain is whether the Appellant could be convicted for an offence u/s 304 Part II of the Indian Penal Code invoking Section 34. The Appellant inflicted on the deceased only one blow and that too with the handle portion of M.O.1 spade. The resultant injury on the deceased is injury No. 4 under Ex.P.10, post-mortem certificate. It is a lacerated injury, 4 c.m x 2 c.m. on the front of lower 1/3rd of left leg. On dissection it is found that it was muscle deep. The injury is a simple injury and will attract only Section 324 of the Indian Penal Code, if Section 34 of the Indian Penal Code could not be invoked.

Even according to the prosecution, the Appellant and A.2 when they came were unarmed. There had, therefore, been no common intention at that stage to commit any offence. Both M.Os.1 and 2 had been found lying outside the garden shed and the Appellant and A.2 had taken them up at random and had used them. The Appellant had used only the handle portion of M.O.1 which clearly showed, that he never intended to cause any serious injury on the deceased. He had used M.O.1 only once and that too not on a vital part, viz., leg. A.2 had taken up the grinder stone which is generally not a weapon of offence and had beaten the leg of the deceased with it. The Appellant could not have anticipated that A.2 would take the grinder stone and beat the deceased. I am unable to hold that there was any common intention between the Appellant and A.2. They had questioned the deceased and since they were not satisfied with what the deceased had stated, each picked up a weapon lying there and had assaulted the deceased on the non-vital parts. Under these circumstances, Section 34 of the Indian Penal Code cannot be invoked against the Appellant. He can be convicted only for the offence u/s 324 of the Indian Penal Code.

The conviction of the Appellant for the offence u/s 304 Part II read with Section 34 of the Indian Penal Code and the sentence of seven years are set aside. The Appellant is convicted for an offence u/s 324 of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him. In the result, C.A. No. 898 of 1985 is dismissed with these modifications. C.A. No. 942 of 1985 is dismissed as charge having been abated.