(PRAYER: These criminal appeals have been preferred under Section 374 Cr.P.C against the judgment dated 27.10.2000 made in S.C.No.256 of 1997 by the IInd Additional Sessions Judge, Tirunelveli.)
Common Judgment (M. Chockalingam, J.)
This judgment shall govern these two appeals filed in C.A.No.9 of 2001 by A.1 and A.3 and C.A.No.243 of 2001 by A.2. These three appellants along with one accused shown as A.4 stood charged and tried by the Second Additional Sessions Judge, Tirunelveli in S.C.No.256 of 1997 for the following charges:
1st charge A.2 u/s.302 I.P.C
2nd charge A.1, A.2 and A.4 u/s.302 r/w 34 I.P.C.
3rd charge A.4 u/s. 323 I.P.C
On trial, A.1 and A.2 were convicted under Sections 302 r/w 34 and awarded life imprisonment along with a fine of Rs.2,000/- each, with a default sentence of one year rigorous imprisonment. A.3 was convicted under Section 302 IPC and awarded life imprisonment along with a fine of Rs.2,000/- with a default sentence of one year rigorous imprisonment. The 4th accused was not found guilty and acquitted of all the charges. Hence the appeals at the instance of A.1 to A.3.
2. The short facts that are necessary for the disposal of this appeal can be stated thus:-
(i) P.W.1 is the son and PW.2 is the brother-in-law of the deceased. The first accused is the younger brother of the deceased while A.2 to A.4 were the sons of A.1. They were all the residents of Kallidaikurichi within the jurisdiction of the respondent police station. A.1 and the deceased were the adjacent land owners. The deceased had no well in his land. Therefore, he desi
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ed to have a bore well. On 10.10.1995, he made arrangements to dig a bore-well and the work was commenced at about 5.00 p.m.,. On seeing the bore well being dug, he raised objections and there was a wordy altercation between the first accused and the deceased. The first accused took a Thoratti Aruval and cut the deceased on his face. Immediately, PW.1, who was standing nearby there, attacked the first accused with a stick. On seeing the same, A.2 to A.4 rushed to the place of occurrence. A.2 took a Thoratti Aruval and attacked the deceased on his left eye-brow, while A.3 took a crow-bar, which was lying nearby the place and attacked him on his head. A.4 snatched the stick from PW.1 and attacked the deceased. The deceased died on the spot. The entire occurrence was witnessed by PW.1 and PW.2. All the accused fled away from the place of the occurrence. (ii) PW.1 and PW.2 proceeded to the respondent police station where PW.9, Head Constable was on duty. PW.1 gave a complaint Ex.P.1. PW.9 registered the case in Crime No.166/1995 under Sections 302 and 323 IPC. F.I.R. Ex.P.20 along with complaint Ex.P.1 was sent to the Court and to the higher officials.(iii) On receipt of copy of the F.I.R., PW.11, the Inspector of Police, took up the investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.2, and a rough sketch Ex.P.8. Further, he enquired some witnesses and recorded their statements. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared an inquest report, which was marked as Ex.P.25. (iv) Following the same, the dead body of the deceased was sent to the Government Hospital, for the purpose of autopsy. P.W.10, the Doctor, attached to Sankarankoil Government Hospital, conducted autopsy on the dead body of the deceased on 11.10.1995 and issued Ex.P.22, the post-mortem certificate wherein she has opined that the deceased would appear to have died of shock and haemorrhage, about 12 to 30 hours prior to autopsy.(v) On the same day, PW.1 was also admitted in the same hospital and he was examined by the same Doctor and he was given treatment. Ex.P.23 was the Wound Certificate issued by the Doctor PW.10 in respect of PW.1.(vi) Pending investigation, on 21.10.1995, the investigator arrested the first accused in the presence of PW.3 and PW.4 and he volunteered to give a confessional statement in the presence of witnesses and the same was recorded in the presence of witnesses. The admissible part of the said confession was marked as Ex.P.26. Pursuant to the confessional statement of A.1, he produced M.O.1 Thoratti Aruval and the same was recovered by the investigator.(vii) In the mean time, A.2 to A.4 were surrendered before the Judicial Magistrate No.4, Tirunelveli. On 27.10.1995, on an application before the said Magistrate, the investigator took them to the police custody. During the investigation, A.2 gave a confessional statement and the same was recorded in the presence of witnesses and the same was recorded in the presence of witnesses and the admissible part of that evidence was marked as Ex.P.28. Pursuant to the confession, he produced Aruval MO.2, which was recovered under the cover of mahazar Ex.P.31. Likewise, A.3 also gave a confessional statement in the presence of witnesses in the course of investigation and the admissible part of that evidence was marked as Ex.P.29. Pursuant to his confession, he produced the crow-bar MO.3, which was recovered under the cover of mahazar Ex.P.32. A.4 also volunteered to give a confessional statement in the presence of witnesses and the same was recorded and the admissible part of that evidence was marked as Ex.P.30. Pursuant to his confession, he produced a stick MO.4, which was recovered under the cover of mahazar Ex.P.33 by the investigator.(viii) All the material objects recovered from the place of occurrence, from the dead body of the deceased and the Material Objects recovered from the accused, were placed before the Court and the same were subjected to chemical analysis by the Forensic Department, which resulted in Chemical analysis report, Ex.P.18, the Serologist report Ex.P.19. (ix) On completion of the investigation, the Investigating Officer filed a final report before the Judicial Magistrate Court No.4, Tirunelveli, which in turn committed the case to the court of sessions and necessary charges were framed.3. In order to substantiate the charges, at the time of trial, the prosecution examined 11 witnesses and relied on 33 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. On the side of the defence, neither witness was examined nor document was marked. After hearing the arguments of the counsel and looking into the material available meticulously, the lower court, took the view that the prosecution has proved its case insofar as A.1 to A.3 were concerned and awarded life imprisonment and, insofar as A4, he was not found guilty of the charges and he was acquitted of all the charges. Hence the appeal at the instance of A.1 to A.3/appellants. 4. Advancing their arguments on behalf of the appellants, Mr. V.Gopinath, learned Senior Counsel in his sincere attempt in assailing the judgment of the lower Court, would make the following submissions:-(i) In the instant case, the prosecution has miserably failed to prove its case and without believing the same evidence, the lower Court has acquitted A.4 and the same reasons are equally applicable to A.1 to A.3 also.(ii) PW.1 and PW.2 were marched as the eye- witnesses. PW.1 is the son of the deceased. PW.2 is the brother-in-law of the deceased. A.1 and the deceased had got adjacent lands and they were on inimical terms in the past also. Even as per the evidence of PW.1 and PW.2, there were discrepancies in the attribution of the overt-acts.(iii) The medical evidence did not support the case of the prosecution.(iv) The recovery of the weapon of the crime as alleged by the prosecution pursuant to the confessional statement was nothing but subsequent invention and introduction to strengthen the case of the prosecution if possible.(v) If the evidence of the witnesses for the alleged arrest, confession and recovery of MO.1 from A.1 and the evidence of the witnesses for the alleged confession and recovery of Material Objects from A.2 to A.4, were carefully scrutinised, would go to show that they are nothing but false. Thus, the prosecution has not proved the case beyond reasonable doubts.(vi) Added further the learned Senior Counsel, even assuming that the prosecution has proved the fact that the deceased died out of injuries caused by the accused as put-forth by the prosecution, there was nothing to indicate that they got a common intention to share with the crime. Even as per the prosecution, there was an altercation between A.1 and the deceased. The same has also been spoken to by PW.1 and PW.2. In the process of altercation, A.1 attacked the deceased with Thoratti Aruval MO.1, which was used for the purpose of plucking leaves from the trees and the injury was caused on the left eye-brow. At the same time, PW.1 attacked A.1. On seeing the father being attacked, A.2 to A.4 rushed to the spot unarmed. A.2 and A.3 were provoked by the act of the deceased and PW.1. Thereby, A.2 took Thoratti aruval, which was lying there and A.3 took a crow-bar, which was also lying there. The fact that the accused A.2 to A.4 came to the spot unarmed and took the weapon of the crime on the spot would indicate that they had no common intention to share with the crime. If to be so, they have got to be evaluated for their respective individual overt-acts. Therefore, the act of the accused was neither intentional nor premeditation. This legal aspect has got to be taken into consideration while passing the judgment of this Court.5. The Court heard the learned Additional Public Prosecutor on the above contentions.6. The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire materials available on record. 7. It is not a fact in controversy that one Chellathurai, the father of PW.1 was done to death in the incident that took place at about 5.00 p.m., on 10.10.1995 by homicidal violence. Following the inquest made by the investigator PW.11, the dead body was subjected to post-mortem by Doctor PW.10 wherein she has clearly opined that the deceased would appear to have died of shock and haemorrhage due to injury No.2, which was caused on the head, 18 - 30 hours prior to post-mortem. Thus, there was sufficient evidence on record to show that the deceased died out of homicidal violence.8. In order to substantiate the accusations made against these appellants, the prosecution has marched two witnesses as the occurrence witnesses. True, it is, PW.1 is the son of the deceased and PW.2 is the brother-in-law of the deceased. Merely on the ground of relationship, their evidence can not be discorded. Under the circumstances, the Court has to exercise the test of careful scrutiny. Despite the application of the test of careful scrutiny, the Court is of the considered opinion that their evidence has got to be accepted. Both PW.1 and PW.2 have deposed in one voice that at the time when the work of digging bore-well commenced, there was a wordy altercation between the deceased and the first accused. In that process, the first accused took Thoratti Aruval MO.1 and attacked him on the forehead of the deceased. On seeing PW.1 attacking the first accused, A.2 to A.4 rushed to the spot unarmed. A.2 took a Thoratti Aruval and attacked the deceased and A.3 took a crow-bar lying there and attacked the deceased and A.4 attacked the deceased with a stick.9. The lower Court was not prepared to accept this evidence insofar as A.4 is concerned and in the considered opinion of the Court rightly too. Insofar as A.1 to A.3 is concerned, the evidence adduced by PW.1 and PW.2, has fully corroborated with the other evidence and remain unshaken despite the cross-examination.10. Apart from that, the ocular testimony projected by the prosecution through PW.1 and PW.2 stood in full corroboration with the medical evidence. The injuries sustained and found on the dead body of the deceased have been clearly spoken to by PW.1 and PW.2.11. Added further, insofar as A.1 is concerned, the weapon of the crime was recovered, pursuant to the confession made by him to the investigator on his arrest. Insofar as A.2 to A.4 were concerned, pursuant to the confession when they were in police custody, the weapons of the crime were recovered by the investigator. That part of evidence would indicate the nexus of the crime with the accused.12. Therefore, in the considered opinion of the Court, all the contentions put-forth by the learned counsel do not merit acceptance and they are liable to be rejected and accordingly rejected.13. Insofar as the second line of argument, the Court is able to see force. Even as per the evidence of PW.1, at the time of occurrence, there was a wordy altercation between his father the deceased and the first accused. In that process, the first accused had taken a Thoratti Aruval, which was used for the purpose of plucking leaves from trees and the seat of injury as could be seen was actually on the left eye-brow and also simple injury. From the nature of the weapon used and the seat of injury, it would be quite clear that the first accused would not have the intention of causing the death of the deceased. In that process, PW.1 attacked the first accused. On seeing this, A.2 to A.4, who were standing nearby there, got provoked and immediately, they rushed to the spot. When they came to the spot, they were all unarmed. A.2 took a Thoratti Aruval lying nearby there and attacked the deceased and caused simple injury. A.3 took a crow-bar lying nearby there and attacked the deceased on the head. From the evidence canvassed through PW.10 Doctor, the injury sustained on the head was fatal. From the evidence of PW.10, it would be quite clear that it was caused by A.3 out of provocation. From the facts and circumstances, there was nothing to indicate or infer that they have common intention to share with the crime. It is well settled proposition of law that when the prosecution is unable to prove that there is common intention shared by the accused, there is no provision in law to find the accused guilty for the same. Thus, it can be held that there is no common intention in the instant case. The accused should be dealt with individually in respect of the overt-acts attributed on them. 14. Considering the factual background, insofar as A.1 and A.2 are concerned, this Court is of the considered opinion that it would be appropriate to convict them under section 324 IPC, and to set aside the judgment of the lower Court finding them guilty under Section 302 r/w 34 of I.P.C and the punishment awarded. Accordingly, the judgment of the lower Court is set aside, and instead, A.1 and A.2 are convicted under Section 324 IPC, and awarded three years rigorous imprisonment. The fine amount with default sentence imposed under Section 302 r/w 34 IPC shall be treated as the one imposed under Section 324 IPC. 15. Insofar as A.3/appellant is concerned, he had attacked the deceased with the crow-bar on the head and caused fatal injury, which was caused due to provocation lingering in his mind on seeing his father being attacked in the wordy altercation between A.1 and the deceased and in such circumstances, A.3 has acted so and hence the act of A.3 would not fall within the ambit of murder; but, in view of the mitigating circumstances, the act of the accused would fall within the Exception to Section 300 of I.P.C.,. This Court is of the considered opinion that A.3 can be found guilty under Section 304 (Part I) IPC and awarding 7 years rigorous imprisonment would meet the ends of justice. Accordingly, A.3 is convicted under Section 304 (Part I) of I.P.C. and awarded 7 years rigorous imprisonment. The fine with default sentence imposed under Section 302 IPC shall be treated as the one imposed under Section 304 (Part I) IPC. The judgment of the trial Court finding him guilty under Section 302 IPC and awarding the punishment is set aside. The period of sentence already undergone by the accused/appellants shall be given set off. 16. It is reported that the accused/appellants are on bail. The bail bonds executed by the accused/appellants stand terminated. The Court concerned is directed to secure the presence of the accused/appellants and commit them to prison to undergo the remaining period of sentence. 17. With the above modification in conviction and sentence, this Criminal Appeal is dismissed.