Madras High Court
Selvam, Dharma @ Dharmalingam, ... vs State, By Inspector Of Police on 27 January, 2003
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, A.K. Rajan
JUDGMENT M. Karpagavinayagam, J.
1. A-1 was convicted for the offence under Section 148 I.P.C. and sentenced to pay fine of Rs. 500/-. A-1 and A-2 were convicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment. A-3 was convicted for the offence under Section 341 I.P.C. and sentenced to pay fine of Rs. 300/-. A-4 was convicted for the offence under Section 302 read with 34 read with 109 I.P.C. and sentenced to undergo life imprisonment. A-2 to A-6 were convicted for the offence under Section 147 I.P.C. and sentenced to pay fine of Rs. 250/-. A-4 to A-6 were also convicted for the offence under Section 323 I.P.C. and sentenced to pay fine of Rs. 300/-. Challenging the said conviction and sentence, the appellants/A-1 to A-6 have filed this appeal.
2. The case of the prosecution in brief is as follows:-
(a) The deceased Sridharan is the husband of P.W.1 Geetha. A-1, A-4 and A-6 are brothers. The other accused are associates of A-1, A-4 and A-6. The prosecution party and accused party are residing in Muthalamman Koil Street, Pallavaram.
(b) There used to be frequent quarrel between the family of A-1, A-4 and A-6 and that of P.W.1 whenever P.W.1 took water from the drinking water tap in the Street. Some days prior to the occurrence, P.W.3 Senthilkumar, the cousin brother of P.W.1, and one Thamizharan, eve-teased one Poongodi, the younger sister of A-1. With regard to this, a complaint was filed. P.W.3 and another pleaded guilty before the Court and paid fine. P.W.3 is the close relative of P.W.1.
(c) On 16-12-1994, at about 7 a.m., P.W.1 was fetching water from the drinking water tap in the Street. When the wife of A-1 came there for fetching water, a quarrel ensued between them. In support of A-1's wife, A-6 came and assaulted P.W.1. P.W.1 requested the deceased husband to go and give a complaint to the Police against A-6. However, the deceased advised P.W.1 to be calm and not to complain to the Police, since he was performing pooja for sabarimala pilgrimage during that period.
(d) The fateful occurrence took place next day, i.e. on 17-12-1994. As usual, at about 7.15 a.m., P.W.1 Geetha went to fetch water from the tap in the Street. At that time, P.W.9 Susindiran, another brother of P.W.1, was sitting in the pial of P.W.1's house and preparing for examinations by reading school books.
(e) At that point of time, A-1 came there and asked P.W.9 to come along with him as his mother called him. Accordingly, P.W.9 accompanied A-1 to Muthalamman Koil Street. At the scene, A-2 and A-3 were already present. When P.W.9 came near them, all of them began to beat him. P.W.9 raised alaram.
(f) On hearing the cry from P.W.9, P.W.3 Senthilkumar and the deceased, the husband of P.W.1 came out of the house. At that time, P.W.2 was also present. They all tried to prevent the accused from beating P.W.9. On seeing the deceased coming out of the house, A-4 went near the deceased and caught hold of the hands of the deceased from behind and told the other accused @nghl;Lj; js;S';flh@/ Then, A-1 took out a knife from his wife and stabbed on the right cheek of the deceased. A-2, who was armed with casuarina stick, began to beat with the stick twice on his head. On receipt of injuries, the deceased fell down.
(g) A-5 Murugan beat P.W.1 on her head and kicked on her stomach. A-4 Ramu assaulted P.W.6 with hands. A-6 Manickam beat with brass vessel on the head of P.W.2 Krishnaveni.
(h) Since the condition of the deceased was so serious, P.Ws.6 and 10 took the deceased in an Auto to Government Hospital. P.W.4 Casualty Medical Officer of Government Hospital, Tambaram, admitted the deceased on 17-12-1994 at 7.30 a.m. Then, P.W.4 declared the deceased dead and issued Ex.P-1 accident register.
(i) Thereupon, P.W.6 Karthik, who also sustained injuries in the attack, went to Police Station at 9 a.m. and gave Ex.P-4 complaint to P.W.13 Sub-Inspector of Police. He registered a case under Sections 147, 148, 341, 323 and 302 I.P.C. Ex.P-10 is the F.I.R. He sent the complaint and F.I.R. to the Court as well as to his superior officers. He also sent P.Ws.1, 2 and 6, who are the injured witnesses to Government Hospital. P.W.5 Doctor treated P.Ws.1, 2 and 6 and found injuries. She issued Ex.P-2 accident register.
(j) On receipt of message, P.W.14 Inspector of Police came to the Station, took up investigation, went to the spot at about 10.00 a.m. and prepared observation mahazar and rough sketch. He recovered blood stained earth, sample earth and M.O.1 broken knife from the scene. He went to the Hospital and conducted inquest on 17-12-1994 at about 11.30 a.m. Ex.P-13 is the inquest report. He examined the injured witnesses and other eye witnesses. Then he sent the dead body for post-mortem.
(k) P.W.5 Doctor conducted post-mortem at about 3.30 p.m. and found fracture on the head and bleeding injury on the face. He issued Ex.P-3 post-mortem certificate, giving an opinion that the deceased would appear to have died of head injury, multiple stab injury, haemorrhage and shock.
(l) On the same day, i.e. on 17-12-1994, P.W.14 Inspector of Police arrested A-1, A-2, A-4, A-5 and A-6. On the confession of A-2, M.Os.2 and 3, the casuarina sticks were recovered. A-3 surrendered before the Court on 30-12-1994. He sent the material objects recovered in this case to the Court with a requisition to send them for chemical analysis.
(m) After finishing the investigation, P.W.14 Inspector of Police filed the charge sheet against all the accused for the offences referred to above.
3. During the course of trial, P.Ws.1 to 14 were examined, Exs.P-1 to P-17 were filed and M.Os.1 to 11 were marked.
4. When the accused were questioned under Sections 313 Cr.P.C., they pleaded innocence, stating that they did not participate in the occurrence and that a false case had been foisted against them.
5. On the materials available on record, the trial Court convicted A-1 and A-2 for the offence under Section 302 I.P.C. and A-4 for the offence under Sections 302 read with 34 I.P.C. read with 109 I.P.C. and sentenced them to undergo life imprisonment. The conviction against the other accused for the other offences is under Sections 147, 148, 341 and 323 I.P.C. They were sentenced to pay fine thereunder, as stated above. Hence, this appeal.
6. Mr. Sudanthiram, learned counsel appearing for the appellants would make the following contentions:-
(a) The evidence adduced by eye-witnesses, namely P.Ws. 1, 2, 3, 6, 8, 9 and 10 would show that they have given only a parrot-like evidence and as such, their testimony cannot be believed. Furthermore, the prosecution has suppressed the origin of the case, besides the fact that there is no motive for the accused to attack the deceased. Admittedly, the incident of eve-teasing and quarrel while the water was being fetched by P.W.1, had nothing to do with the main occurrence, in which the murder has taken place.
(b) The prosecution has not placed any material to show as to why the accused had to go the house of P.W.1 to take P.W.9 to Muthalamman Koil Street and then to beat the deceased who intervened. The part played by A-4, by catching hold of the deceased while he was attacked, would not constitute the offence under Section 302 read with 34 I.P.C., since he did not have the knowledge that A-1 was having a knife in his waist. As such, it could not be said that he shared the common intention with the other accused in committing the crime.
(c) Even in respect of A-1, in a sudden quarrel, he caused single injury on the face of the deceased. As such, he cannot be convicted for the offence under Section 302 I.P.C.
(d) That apart, P.W.5 Doctor did not state as to the nature of injuries caused by each of the accused.
7. Learned counsel for the appellants cited number of authorities to substantiate the above pleas.
8. We have heard learned Additional Public Prosecutor on the above aspect.
9. On a careful scrutiny of the records and the evidence available on record, we are unable to accept any one of the contentions urged by learned counsel for the appellants.
10. It is the case of the prosecution that there was enmity between the two families. There is no dispute in the fact that some days prior to the date of occurrence, P.W.3, the brother of P.W.1, eve-teased the sister of A-1 and a case was filed against him in the Court. P.W.3 went to the Court and paid fine. Though the case was booked against him, the accused had a grudge over the family of P.Ws.1 and 3, since P.W.3 was let-off with mere fine.
11. Coupled with the above fact, it may be noticed that one day prior to the date of occurrence, i.e. on 16-12-1994, at about 7.15 a.m., there was a quarrel between P.W.1 and the wife of A-1 near the water tap, while P.W.1 was fetching water from the tap. At that point of time, A-6, brother of A-1, came and joined A-1's wife in quarrelling with P.W.1. A-6 assaulted P.W.1. At that juncture, A-6 Manickam threatened P.W.1 that they would see her off tomorrow. P.W.1 and others though prepared a complaint against A-1's wife and A-6 with reference to the said incident to the Police, they did not lodge the complaint on the advice of the deceased. Next day morning, i.e. on 17-12-1994 at about 7.15 a.m., P.W.1 went to the water tap and was fetching water. Again quarrel ensued between them. At that time, A-1 came there and told P.W.9, who was sitting in the pial of P.W.1's house and preparing for examination, that his mother was calling. Accordingly, P.W.9 accompanied A-1 to Muthalamman Koil Street. At that point of time, the other accused were present there with casuarina sticks.
12. When P.W.9 came near them, the accused persons surrounded him and began to beat him. P.W.9 cried aloud and on hearing the noise, the deceased and P.W.3 Senthilkumar who were inside the house, came out and objected to their beating. At this juncture, A-4 came near the deceased and caught hold of his hands from behind and told other accused that he is the person responsible for all these happenings and instigated them to attack him saying @nghl;Lj; js;S';flh@/ The moment he caught hold of the hands of the deceased from behind, A-1 took up the knife from his waist and stabbed on his face. Then, A-2, with casuarina stick which he had already carried, beat the deceased on the head of the deceased twice. On receipt of these injuries, the deceased fell down. Then, the other witnesses--P.Ws.1, 6 and 2 who intervened were also attacked. P.Ws.6 and 10 arranged an Auto and took the victim deceased to Hospital where P.W.5 Doctor declared him dead. Thereafter, P.W.6 went to Police Station and gave a complaint. P.W.5 Doctor conducted post-mortem on the body of the deceased and found fractured injures on the skull, as also injuries on the face. In Ex.P-3 post-mortem certificate, P.W.5 Doctor has opined that the death was due to head injury, multiple stab injury, haemorrhage and shock.
13. The details of the occurrence, as narrated earlier, have been clearly spoken to by P.W.6, the first informant and the other injured witnesses, P.Ws.1, 2, 3, 8, 9 and 10. Admittedly, these witnesses are neighbours residing in the same Street. It is also seen from the evidence that they gave clear details of the overt acts attributed against each of the accused, as mentioned in Ex.P-1 complaint. Therefore, there is no difficulty in accepting their version with regard to the manner of the occurrence.
14. It is contended that the genesis of the occurrence had been suppressed. We are unable to accept the same, since there was enmity between the two families, and P.W.3 and another were let off with mere fine in a case where the sister of A-1 was eve-teased on the same day and there was also quarrel between P.W.1 and the wife of A-1 on 16-12-1994.
15. Since the accused party developed grudge against P.W.1's family, they planned to attack the person concerned who was responsible for these acts. The deceased is the husband of P.W.1. So, in that context, on the date of occurrence, i.e., on 17-12-1994, P.W.9 was brought to the middle of the Street and was attempted to be attacked by the accused. On witnessing the same, the deceased came and intervened. At this juncture, A-4 came and caught hold of the deceased and asked others to attack him. The uniform version given by all the witnesses is that most of the accused came with casuarina sticks in their hands. As a matter of fact, after the arrest of A-2 and A-3, M.Os.2 and 3, the casuarina sticks were recovered.
16. Immediately after the signal given by A-4, A-1 who had got the grudge against P.W.1's family, took out the knife concealed in his waist, aimed at the head of the deceased and caused injury on the face of the deceased. According to P.W.5 Doctor, the injury sustained by the deceased was stabbed wound about 5 cm x 3 cm x 3 cm depth, extending from right ear to ankle of the mouth right side and profused bleeding comes out through the injury.
17. Not satisfied with that, another accused (A-2) with casuarina stick, beat the deceased on the head. According to Doctor, this injury is a fracture. In Ex.P-3, it is stated by P.W.5 Doctor that on dissection of skull, he found fracture parietal bone and blood clots of about 50 ml inside the brain. Ultimately, the Doctor has given an opinion that the death was due to head injury, multiple stab injury, haemorrhage and shock.
18. So, the attack had been made only after A-4 caught hold of the deceased from behind, asking the other accused to attack the deceased. Under those circumstances, it cannot be contended that the accused did not have the intention to cause the death of the deceased.
19. Mr. Sudanthiram, learned counsel for the appellants would cite the decisions of the Supreme Court in CHAND VS. STATE OF U.P. (1972 Crl.L.J. 590) and MER DHANA SIDA VS. STATE OF GUJARAT (1985 SCC (CRL) 54), in order to substantiate his plea that the offence would fall under Section 304 (Part II) I.P.C. and not under Section 302 I.P.C. He would also cite a decision of the Supreme Court in AYAY SHARMA VS. STATE OF RAJASTHAN (1999 SCC (Crl) 74) to show that the person who caught hold of the deceased while the other accused attacked the deceased, would be convicted for the lesser offence and not under Section 302 I.P.C. The above said decisions, in our view, would not be applicable to the present facts of the case.
20. In this case, as stated above, the accused persons came to the scene with casuarina sticks. Two sticks were recovered from A-2 and A-3. As per Ex.P-4 complaint and from the evidence of the injured witnesses, they were having casuarina sticks in their hands. This would indicate that they came for the purpose of attacking the person in the family of P.W.1. Furthermore, Ex.P-6 mahazar would show that the broken knife was found in the scene. According to P.W.6 in the complaint as well as in the evidence given by the other eye-witnesses, the accused persons left the knife at the scene itself as it was broken into two pieces, and fled away from the scene with the casuarina sticks that they were carrying in their hands.
21. The very fact that the knife was broken into two pieces, would indicate the ferocity with which A-1 stabbed and inflicted injury on the face of the deceased. Apart from that, Ex.P-8 mahazar under which the casuarina sticks were recovered, would show that M.Os.2 and 3, the casuarina sticks, are weighty weapons, containing the length of 33-1/2 inches to 34 inches.
22. These materials would show that the weapons which had been used by A-1 and A-2 were dangerous and they were brought for the purpose of causing danger to the life of the person concerned. Under those circumstances, we are unable to hold that A-1 to A-3 are liable to be punished only for the lesser offence.
23. As a matter of fact, the Supreme Court in NANDU RASTOGI @ NANDJI RASTOGI AND ANOTHERS VS. STATE OF BIHAR (2002 (7) SUPREME 73), as pointed out by learned Additional Public Prosecutor, would hold that the existence of a common intention of the persons involved in the incident, is a question of fact in each case, to be proved mainly as a matter of inference from the circumstances of the case. The Supreme Court would further hold in the said decision that Section 34 I.P.C. recognises the principle of vicarious liability of criminal jurisprudence. It makes the person liable for action of an offence not committed by him, but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The Section gives statutory recognition to the common-sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. Common intention can be formed previously or in the course of occurrence and on the spur of the moment.
24. The above said observations of the Supreme Court would support our view to hold that from the present facts of the case, it can be inferred that A-4 also had a common intention with A-1 and A-2 in causing injuries which resulted in the death of the deceased.
25. Therefore, the conclusion arrived at by the trial Court in convicting the accused, cannot be said to be wrong and consequently, the same is liable to be confirmed.
26. However, as pointed out by Mr. Sudanthiram, learned counsel for the appellants, the nature of each injury sustained by the deceased was not elicited from P.W.5 Doctor. According to the Doctor, both the injuries found on the face as well as the fracture on the head, are the reasons for death of the deceased.
27. Under those circumstances, instead of convicting A-1 and A-2 for the offence under Section 302 I.P.C. simpliciter, it would be appropriate to convict both A-1 and A-2 for the offence under Section 302 read with 34 I.P.C. for having caused injuries on the deceased, which resulted in his death.
28. In fine, A-1 and A-2 are convicted for the offence under Section 302 read with 34 I.P.C. and sentenced to undergo life imprisonment. In other respects, the conviction and sentence imposed upon the other accused by the trial Court are confirmed. The trial Court is directed to take steps to secure the custody of A-1 and A-4, who are on bail, to undergo the remaining period of sentence.
29. With the above modification, the appeal is dismissed.