Vasu and Murugesan vs State

N. Dhinakar, J.—C.A. No. 715 of 1991 is by Accused Nos. 2 and 3 and C.A. No. 532 of 1992 is by Accused No. 1 in Sessions Case

No. 137 of 1991 on the file of the IX-Additional Sessions Judge, Chennai. The Appellants in C.A. No. 715 of 1991 and the Appellant in C.A.

No. 532 of 1992 before us will be referred as A.2, A.3 and A.1 respectively.

A.1 to A.3 were charged u/s 341 of I.P.C. by alleging that at about 9.30 p.m. on 14.5.1990 they prevented the deceased Dayalan from moving

in any direction. The first accused was charged under Charge No. 2 for the offence u/s 506(2) of I.P.C., and the allegation against him is that he

threatened the witnesses by showing them a knife. The third charge was framed against the first accused u/s 302 I.P.C. and against A.2 and A.3

u/s 302 read with 34 of I.P.C. The learned Sessions Judge on the evidence adduced, both oral and documentary, accepted the prosecution

version and convicted A.1 to A3 u/s 341 of I.P.C. and sentenced them to suffer simple imprisonment for a period of one month. The first accused

was also convicted u/s 506(2) of I.P.C. and sentenced to undergo rigorous imprisonment for a period of six months. Under charge No. 3, each of

the accused were convicted and sentenced to undergo life imprisonment. Each accused was also directed to pay a sum of Rs. 2500/- as fine and in

default directed to undergo rigorous imprisonment for a period of six months. The sessions court also directed the accused to undergo the

imprisonment concurrently.

Even at the outset, we may say that this Court is at a loss to understand as to how the accused were directed to undergo the simple

imprisonment u/s 341 of I.P.C. simultaneously with life imprisonment imposed upon them u/s 302 of I.P.C. which is always a rigorous

imprisonment.

Be that as it may, the facts which are necessary for the disposal of the above appeals are briefly this:

P.W.2 is the mother of the deceased and P.W.1 is the junior paternal uncle of the deceased. P.W.2 along with the deceased, was residing at

Sivasailam Street and the father of the deceased is a Mason by profession. P.W.2 was selling Flowers. The deceased was also engaged in

construction work and was working as a Mason. At about 9.45 p.m. on 14.6.1990 P.W.2 was waiting in front of a temple. In the mean time,

P.W. 1 a resident of Kamarajarpura, and a Mason by profession, went to a Tea Stall to take tea. The first accused was present near the tea stall.

He asked the deceased to buy him cigarettes and the deceased replied that he has no money. The first accused abused him in filthy language. The

deceased replied that he cannot buy cigarettes saying "" "". The deceased also pushed the first accused down and thereafter all the three accused

chased him and P.W.1 followed them. When the deceased was running near the temple where P.W.2 was standing and A.2 and A.3 over took

him and held him. The deceased started shouting. The first accused took a knife from his waist and stabbed him on the left side of the neck. He

also threatened the witnessed who wanted to help the deceased and the accused ran away. The occurrence was witnessed by P.W.1 to P.W.4.

The injured was placed in an Auto driven by P.W.4 and taken to the Pondy Bazaar Police Station, where the deceased gave a statement to P.W.

17 Sub-Inspector of Police. The said statement is Ex.P.1. On the basis of Ex.P.-1, a case in Crime No. 702 of 1990 was registered. Ex.P-24 is

the printed copy of F.I.R. The injured was sent to Hospital with a memo and produced before P.W. 12 at 10.30 p.m. P.W. 12 examined the

injured and when questioned he was informed that he was stabbed. He found the following injury:

incised wound on left side neck 2 cm x 1 cm.

Ex.P.19 is the Accident Register. Then the injured was admitted in the hospital as in-patient. The deceased was operated by P.W. 13. Ex.P-20 is

the Case sheet.

On being informed about the registration of the crime, P.W. 18 Inspector, Law and Order, Pondy Bazaar Police Station took up the

investigation and went to the hospital where he questioned the deceased and recorded his statement. M.O.1 is the blood stained cloth recovered

under Mahazar Ex.P.5. He also questioned P.W.1 to P.W.5 and recorded their statements. He had the scene caused to be photographed. Rough

sketch is Ex.P-25 and Ex.P-6 is the Observation Mahazar. The accused when searched were found absconding. In the meantime, the injured, who

was undergoing treatment in the hospital, died and the death intimation Ex.P-21 was sent to the police. On receipt of the death intimation, the crime

was altered into one u/s 302 of I.P.C. Ex.P.26 is the Express First Information Report. He sent the same to the higher officials. On 15.6.1990,

P.W. 18 conducted inquest on the body of the deceased between 1.00 p.m. to 3.00 p.m. in the presence of witnesses and panchayatdars.

Ex.P.27 is the Inquest Report. After inquest, requisition was issued to the Medical officer for conducting autopsy. On receipt of the requisition,

P.W. 15, Assistant Professor in Forensic Medicine, Government General Hospital conducted autopsy on the body of the deceased Dayalan and

found the following injuries:

(1) A transverse sutured wound present over upper part of left side of neck 7 x 1 x 1 cm (sutured with black silk) 4 sutures present. The wound is

situated 50 ms below and to left of symphysis menti.

2) An oblique sutured wound present over left side of middle of neck 7 x 1 x 3.5 cm with a branching in its upper part and posteriorly 5 x 1 x 2.5

cm sutured with black silk (6 sutures present found intact) situated below and 7 cms from left mastoid process.

On further dissection, infiltration of blood present in the muscles and underlying tissues of left side of neck. The storno collide-most old muscles,

carotid sheath, internal jugular veni, vagus nerve and prevertebral muscles found sutured, and all sutures were intact. Clots of blood present lying in

the intermuscular planes about the injured site, Ooddma of the glottis present, Hold eyenosis of all fingers present. Thin frothy fluid blood present in

the trachea.

HEART: Both chambers contained fluid blood. Myocardium appears normal. Both cerenaries are patent.

LUNGS: Congestion and oodoma present.

STOMACH: Contained 500 gms of partly digested brownish chymo present. No definite smell. Mucosa-pale.

LIVERKIDNEYS SPLEEN: Cut section: Pale.

He also issued Ex.P.-23 Post-mortem Certificates, with his opinion that the deceased died on account of complications of stab injury to the neck.

P.W. 18 searched for the accused and arrested the first accused at about 8.00 p.m. on 15.6.1990. The first accused took the police party to a

fence at the near Corporation Park and produced M.O.2 and the same was seized under a Mahazar Ex.P.9. A2 and A.3 were arrested on the

same right. Material objects were sent to the court with a request to send them for chemical analysis and after completing investigation final report

was field against the accused on 9.8.1990.

When the accused were questioned by the trial court u/s 313 of Code of Criminal Procedure on the incriminating circumstances available against

them, they denied and stated that it is a false case.

The accused did not dispute that the deceased Dayalan died on account of the injuries sustained by him. P.W. 15 who conducted autopsy found

injury on the deceased and has issued Ex.P.23, Post-mortem certificate, with his opinion that the deceased died on account of complications of

stab injury to the neck. We, on the medical evidence, therefore, hold that Dayalan died on account of homicidal violence.

Prosecution before the trial court examined P.W.1 to P.W.5 as eye-witnesses to speak about the incident. P.W.1 and P.W.5 did not support

the prosecution version and hence they were treated hostile. The prosecution before the trial court, therefore relied upon P.W.2 to P.W.4. Apart

from Ex.P-1 the statement given by the deceased before P.W. 17, Sub-Inspector, which is admissible u/s 32 of the evidence Act as the statement

of the deceased regarding, the cause of his death. P.W.2 is the mother of the deceased. P.W.3 and P.W.4 are independent witnesses. P.W.2 in

her evidence had stated that she was waiting for the arrival of her son and at that time she saw her son being chased by accused 1 to 5. According

to her, A.2 and A.3 overtook her son and held him and the first accused, who came later, took a knife from his waist and inflicted a stab injury on

the neck. This evidence of P.W.2 is supported by P.W.3 who was proceeding by the side of scene of occurrence and by P.W.4 the Auto Driver.

In fact, in the Auto P.W.4 the injured was placed and taken to the police station and produced before P.W.17 Sub-Inspector of Police P.W.3 and

P.W.4 in their evidence stated that the first accused stabbed the deceased and that P.W.4, further stated that after incident he took the injured to

the police station and where a complaint was lodged.

The evidence of P.W.2 to P.W.4 stand unshaken. We find no material in the cross-examination to hold that their evidence cannot be accepted.

Their evidence is also supported by the statement made by the witnesses to the Doctor P.W.12. When he asked for the cause of injuries, he was

informed that the injury was on account of stab with a knife by three persons. Apart from this statement made by the Doctor P.W. 12, the

deceased also made a statement before P.W.17 Sub- Inspector of Police, even before he was removed to the hospital. The said statement

contains details and the deceased has mentioned that the first accused stabbed him with a knife. We have no reason to reject Ex.P-1 or the

evidence of ocular witnesses. We accept their evidence and hold that A.1 caused the injury which resulted the death. Therefore, the conviction of

first accused u/s 302 of I.P.C and the sentence imposed on him are confirmed.

It had come out in evidence that after the incident, the first accused threatened the witnesses by showing them a knife. Therefore, the

conviction, of the first accused u/s 506(2) of I.P.C. and sentenced imposed on him are also confirmed.

As regards the charge No. 1 framed against the first accused u/s 341 of I.P.C. we are of the view that he is entitled for acquittal. The evidence

did not indicate the first accused actually held the deceased and prevented him from moving in any direction. Therefore, the conviction of the first

accused u/s 341 of I.P.C., under charge No. 1 is set side and he is acquitted of the said charge.

In the result, the conviction of the first accused u/s 506(2) and Section 302 I.P.C. are confirmed. He is acquitted of the charge u/s 341 of

I.P.C. C.A. No. 532 of 1992 filed by A.1 is accordingly disposed of.

We will now take the case of A2 and A3, who are Appellants in C.A. No. 715 of 1991. The learned Counsel appearing for the Accused 2

and 5 submits that the materials do not indicate that A2 and A3 shared the common intention of the first accused and, therefore, the conviction u/s

302, I.P.C. read with Section 34 I.P.C. and the sentence imposed upon them have to be set aside. We see some force in the said contention. It is

the evidence of all the eyewitnesses that after the deceased refused to buy cigarettes for the first accused, he pushed him down and ran away. The

accused chased him and the accused 2 and 3 held him. On being held, the deceased started shouting. The first accused arrived at the scene and

thereafter took a knife from his waist and inflicted one stab injury on the neck and ran way. Under the above circumstance, it is difficult for us to

hold in the absence of any definite evidence that A2 and A3 had knowledge about the deceased will be stabbed by A1 and A2 and A3 shared the

common intention of A1. It is possible that A2 and A2 might have not known the intention and motive for A1 to stab the deceased. The evidence

also shows that the first accused on immediately reaching the place where the deceased was standing took a knife from his waist and inflicted one

stab and ran away. A2 and A3 did not also utter any words to indicate their intention at the deceased. Under the above circumstance, we are

unable to hold that A2 and A3 shared the common intention of A1 in causing the death of deceased Dayalan. We therefore acquit A2 and A3

from the charge u/s 302 read with Section 34 of I.P.C.

As regards the charge No. 1 u/s 341 of I.P.C. the evidence of all the eye-witnesses is cogent. A2 and A3 chased the deceased and held him

by their hands, which means the deceased was prevented from moving in any direction and therefore they are liable to be convicted u/s 341 of

I.P.C.

As regards the sentence imposed upon A2 and A3 for their conviction u/s 341 of I.P.C. since the occurrence has taken place in 1990, we feel

that the sentence imposed on them can be converted into one of fine. We accordingly direct A2 and A3 to pay a fine of Rs. 500/- each and in

default to pay the fine amount to suffer simple imprisonment for a period of one week each.

In the result, A2 and A3 are acquitted of the charges u/s 302 read with 34 I.P.C. and their conviction u/s 341 I.P.C. is confirmed but the

sentence is modified from one of imprisonment to one of fine. With the above modification, C.A. No. 715 of 1991 is disposed of in the matter

indicated above.

The learned Sessions Judge is directed to secure A1 and commit him to prison to suffer the remaining period of imprisonment.

Learned Counsel for A2 and A5 submits that they had already deposited a sum of Rs. 2500/- each and therefore after deducting the fine

amount now imposed the balance amount may be returned to them. The trial court is directed to return the balance amount to A2 and A3 after

deducting Rs. 500/- towards the fine imposed upon them each u/s 341 of I.P.C.