Veerappa Gounder and Palaniammal vs State

David Annoussamy, J.—These two appeals are by two accused who stand convicted under S. 302 I.P.C. and sentenced to imprisonment for life. The relationship between the, parties is as follows: The first accused is the husband of the second accused. Chellammal, the deceased, was the wife of P.W.1. P.W.2 is the son of P.W.1. The first accused and P.W.1 are first cousins. There was a land which was owned in common by the first accused to the extent of a half share and P.W.1 to the extent of a one-fourth share. There was also a common well in the above said land. A motor and a pumpset were installed jointly by the first accused and P.W.1, the service connection standing in the name of P.W. 1.

There were several circumstances making the first accused and P.W.1 inimical to each other. The first accused is said to have a wife other than the second accused by name Kaliammal. P.W.1 wanted the first accused to sell away his share to him. But Chellammal, the deceased, succeeded in getting a sale deed in her favour from Kaliammal. The first accused executed an agreement for sale in favour of a third party and that third party was taking steps for having the sale deed executed by Kaliammal cancelled. It appears also that there was some dispute between the first accused and P.W.1 about ten years back regarding the cattle of P.W.1. straying in the land of the first accused and the cattle having been subsequently found dead, when the matter was brought before the panchayatdars, the first accused was directed to pay Rs. 400 to P.W.1 by way of damages.

It also appears that the electricity charges remained unpaid for about 4 years and that they were cleared 6 months prior to the occurrence by P.W.1 paying the entire charges and the first accused refused to meet his share in these charges. On account of such a course of action, the first accused was preventing P.W. 1 from using the pumpset.

While so, on 28-8-1982 at about 2 p.m. accused 1 and 2 were found near the well endeavoring to switch on the motor. Chellammal, upon noticing the fact, rushed to the spot and attempted to prevent accused 1 and 2 from switching on the motor. A wordy quarrel ensued. Thereafter, the first accused stabbed Chellammal with the pen-knife M.O.1 on the face near the right eye, Chellammal fell down. The second accused stabbed her with the crow-bar M.O.3 on the lateral aspect of the right eye. Then accused 1 and 2 took Chellammal, the first accused by hands and second accused by feet and they threw Chellammal, into the well. There was not much of water in the well at that time. The water in the well was then concentrated in the middle portion of the well. Chellammal landed on the portion which was sandy and accused 1 and 2 continued their attack on Chellammal by stoning her.

P.W.1 who heard about the noise arising out of the quarrel between Chellammal on the one side and accused 1 and 2 on the other side, rushed to the scene of occurrence with a crow-bar. He beat the second accused with the crow-bar M.O.2 and the second accused sustained an injury on the left forearm. P.W.2 also was present.

P.W.1, finding Chellammal inside the well, went inside the well and found that she was still alive and then came out of the well and raised an alarm. By that time, accused 1 and 2 ran away. Chellammal was lifted from inside the well and she was still alive. She was given water. Five minutes later she passed away.

P.W.1 went to the nearest Moolanur Police Station and gave the complaint Exhibit P-l at about 4.30 p.m. and a case was registered in Crime No. 86 of 1982 for an offence under S. 302, I.P.C. The second accused also went to the same Police Station at about 7:30 p.m. and filed the complaint Exhibit P-21, the printed First Information Report of which is Exhibit P-22. A case was registered in Crime No. 87 of 1982 for offences under S. 323 and 324, I.P.C. against P.W.1. The second accused was sent to the hospital with the memo Exhibit P-4 at 10 p.m. She was examined by P.W.4.

The second accused was arrested on 7-9-1982 at about 5 p.m. at Kandasamipudur and the first accused on 14-9-1982 at about p.m. at Silukanaickenpatti Vellanai forest. The first accused volunteered a confession, the admissible portion of which is Exhibit P-10 leading to the recoveries of M.Os. 1 and under the cover of mahazar Exhibit P-11.

The investigating officer submitted a report stating that Crime No. 87 of 1982 arising out of the complaint of the second accused was a mistake of fact and that in respect of crime No. 86 of 1982, an offence under S. 302 read with S. 34, I.P.C. appeared to have been committed by accused 1 and 2.

Upon committal, charges were framed by the Sessions Court of Periyar Division against accused 1 and 2 for an offence under S. 302 read with S. 34, I.P.C.

The Prosecution produced the evidence collected in the course of investigation consisting of the testimonies of 15 witnesses, 25 exhibits and 17 material objects.

The accused, when examined in respect of the incriminating circumstances appearing against them under S. 313, Crl.P.C, filed a statement more or less on the lines of the complaint filed by the second accused namely. Exhibit P-21 with the difference, however, that injury to the second accused could have been caused by Chellammal herself whereas as per Ex. P-21, the injury on the second accused was caused by P.W.1, who came later to the scene of occurrence.

The trial court, upon perusing the evidence produced by the prosecution and upon hearing the arguments from both sides, came to the conclusion that the charge was fully proved, convicted both the accused and sentenced them to imprisonment for life, by judgment dated 19-9-1983, which is now assailed in these appeals.

Learned counsel appearing for the accused, after taking us through the evidence, attempted first to persuade that the version of the prosecution was entirely false and that accused 1 and 2 were not in any manner connected with the crime. Then realizing the futility of such an attempt, they confined their appeals to the following point: The version of the prosecution that accused 1 and 2 threw Chellammal into the well is not a true one and that, on the contrary, she rolled herself into the well in the course of the scuffle. This will be the main point to be considered by us.

Before taking up for scrutiny this aspect, first we shall just enumerate the essential pieces of evidence on which the case of the prosecution is based. Though 3 eyewitnesses were arrayed, P.W.3 turned hostile and we have got the testimony of P. Ws.1 and 2. Their testimony is in accordance with the case of the prosecution as unfurled in Ex. P1 and is corroborated by the medical evidence, namely, the evidence of P.W.7, who conducted post mortem on the dead body of Chellammal. He found the following external injuries:

Lacerated wound 4" X 3" with the dried blood clot on the left side of back of scalp (which may be due to fall).

Lacerated wound 3" X 2" on the lateral end of right eye-brow with dried blood clot (which may be due to attack with crow-bar as attributed by the prosecution to the second accused).

Lacerated wound 1"x 1/2" on the right cheek. Probe entered into the maxillary sinus, (which may be due to attack with pen-knife as attributed by the prosecution to the first accused) 4. Abrasion 2" x 1" on the right side of chest with dried blood clot (which may be due to fall as attributed by the prosecution).

Abrasion 8" x 6" on the left lateral aspect of chest (which may be due to fall as attributed by the prosecution).

Abrasion 2" x 1" on the left thigh (which may be due to fall as attributed by the prosecution).

Abrasion 3" x 2" on the right thigh above the knee joint (which may be due to fall as attributed by the prosecution).

Lacerated wound 3" x 1" on the left thigh (which may be due to attack with penknife as attributed by the prosecution to the first accused),

Incised wound 6" x 2" x 1/4" spindle shaped on the left fore-arm (which may be due to attack with pen-knife as attributed by the prosecution to the first accused).

Abrasion 5" x 4" with dried blood stain on the left shoulder (which may be due to the fall as attributed by the prosecution).

On internal examination, he found the following injuries;

Dislocation of joints between parietal, temporal and occipital bone on the left side.

Congestion of the brain with blood clot on the left side of the brain.

Fracture of right maxilla.

Fracture of the bone on the right eyebrow. The opinion of the doctor is that the death would appear to have occurred about 20 to 22 hours prior to autopsy due to shock and hemorrhage and his further opinion is that external injury No. l corresponding to internal injury Nos. 1 and 2 and external injury No. 2 corresponding to the internal injury No. 4 were necessarily fatal and that the death would have been instantaneous.

It is also found in this case that the second accused was found injured and that when she was examined by P.W.4, she was having the following injuries:

Left fore-arm deformity present at the elbow joint region. There was punctured wound at the anterior aspect of elbow region. Wound was muscle deep. Diffused contusion all over the left fore-arm. Fracture of left fore-arm bone and dislocation at the left fore-arm elbow level. Patient was referred to Erode Headquarters Hospital for favour of management.

The opinion of the doctor is that the injury could have been caused by an attack with a crow-bar. This corresponds to the version of the prosecution as per which, P.W.1, when he came to the scene of occurrence, attacked the second accused with the crow-bar. This body of evidence was accepted by the trial Court and even now, there is no dispute by the accused that the injuries which are attributed to them were respectively caused by them. The case of the accused is specifically that the fall of Chellammal into the well occurred accidentally when Chellammal on the one side and accused 1 and 2 on the other side were righting. We shall, therefore, turn our attention to this aspect of this case.

The specific case of the prosecution in this respect as deposed by P. Ws.1 and 2 is that after the first accused has attacked Chellammal with pen-knife and inflicted two injuries, injury Nos. 3 and 9, constituting one injury, and the second injury being external injury No. 8; after the second accused administering injury No. 2, they have chosen to seize Chellammal, the first accused by hands and the second accused by feet, and threw her into the well. But the specific case of the second accused at the earliest part of time, that is to say, on the same date about 7. p.m. in Exhibit P-21 is that Chellammal has pulled the second accused by her tuft and thrown her on the ground, that the second accused in her turn pushed her away and then Chellammal rolled on the ground and fell into the well. When the prosecution party and the accused party have given such diametrically opposed versions on this important aspect, the duty of the investigating officer was to find out which of the two versions was true. For this purpose, he should have examined the witnesses, P.W.1 and 2, to find out from which place Chellammal was thrown into the well, where exactly in the well she landed, what was the weight of Chellammal and whether accused 1 and 2 were sufficiently powerful enough to throw her into the well in the way as narrated. But he has not at all adverted to this aspect. He has blindly accepted the version of the prosecution and thrown the version of the accused without any scrutiny, In this connection, it would be useful to restate Cl 588-A. of the Madras Police Standing Orders, which reads as follows:

Charge-sheets in cases and counter cases:-In a complaint and counter complaint obviously arising out of the same transaction the investigating officer should enquire into both of them and adopt one or the other of the two courses viz., (I) to charge the case where the accused were the aggressors or (2) to refer both the cases if he should find them untrue. When the investigating officer proceeds on the basis of the complaint it is his duty to exhibit the counter complaint in the court and also to prove medical certificates of persons wounded on the opposite side. He should place before the court a definite case which he asks it to accept. The investigating officer in such cases should not accept in toto one complaint and examine only witnesses who support it and give no explanation at all for the injuries caused to the other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the court to enable it to arrive at the truth and a just decision,

If the investigating officer finds that the choice of either course is difficult, viz., to charge one of the two cases or to throw out both, he should seek the opinion of the Public Prosecutor of the district and act accordingly. A final report should be sent in respect of the case referred as mistake of law and the complainant or the counter complainant, as the case may be should be advised about the disposal by a notice in F.96 and to seek remedy before the specified Magistrate, if he is aggrieved by the disposal of the case by the Police

It appears that the investigating officer has completely lost sight of this important clause of the Madras Police Standing orders. If he had acted in accordance with the abovesaid provisions, then this Court would be in a position to know what exactly had happened.

In the case as presented before the Court, we are left only with the deposition of P. Ws.1 and 2, who are interested witnesses and whose testimony, though acceptable as far as the stabs are concerned, cannot "be accepted in toto with regard to other details of that criminal transaction, which is said to have taken place. When we look al the other elements of evidence, we find that the witnesses uniformly stated that there was no parapet wall to the well, that the ground where the fight took place was slanting and that there was every possibility for any one of the fighters to roll into the well. It is also in evidence, that Chellammal was a strong and sturdy woman who could not have been so easily overpowered. It is not also in the evidence of P. Ws. 1 and 2 that after the injuries inflicted on her, she became so powerless as it was easy to catch hold of her and to throw her into the well. It is also hard to understand why accused 1 and 2, who were possessed with arms and who have attacked Chellammal with their arms, have all on a sudden changed their course of action and chosen to throw her into the well. If the purpose of throwing her into the well was to kill her, it is also hard to understand why after having taken such a course, after which normally they will fly away, they continued to be present there and were stoning. There is no medical evidence also in respect of any injuries caused by such stoning, though P. Ws. 1 and 2 would say that they were aiming accurately at Chellammal. Such being the other pieces of evidence, we find that the version of the second accused in Exhibit P-21 is more acceptable than the version of the prosecution. At any rate, it cannot be said that the prosecution has proved beyond reasonable doubt that accused 1 and 2 have thrown Chellammal into the well voluntarily and with the criminal intention. Therefore, the second accused would be answerable only to external injury No. 2 corresponding to internal injury No. 4 and the first accused will be answerable only to external injury Nos. 3, 8 and 9. The doctor has opined that injury No. 2 has caused the fracture of lateral end of the right eye-brow and was a grievous one. He had also opined that injuries Nos. 3 and 9 was one and the same and that it has caused the fracture of the right maxilla and was a grievous one. As far as the cause of death is concerned, the opinion of the doctor is that external injuries Nos. 1 and 2 corresponding to internal injury Nos. l, 2 and 4 were necessarily fatal. But it is not his evidence that external injury Nos. 1 and 2 would have been independently fatal. Since no such evidence is on record, we have necessarily to conclude that they both taken together have caused the death. As held above, external injury No. 1 is attributable, as per the prosecution, to the fall into the well. Therefore it cannot be held that the second accused has caused the death of Chellammal nor can it be said that the first accused has caused the death of Chellammal or had any common intention in that respect. The only conclusion that can be drawn from the record is that accused 1 and 2 are each guilty of a separate offence punishable under S. 326, I.P.C.

It is represented by the learned counsel for the accused that they have been in jail from the time of their conviction and sentence by the Sessions Judge and for a duration of four months pending trial and in total 5 years and 3 months. We find that such a period of imprisonment is an adequate sentence for the offences that they are found to have committed.

In the result, the appeals are allowed in part. The conviction and sentence awarded to accused 1 and 2 appellants under S. 302 read with S. 34, I.P.C. are set aside and they are found guilty for the offence punishable under S. 326, I.P.C. and convicted thereunder and sentenced to undergo imprisonment for the period already undergone.