Full Judgment
1. These criminal appeals are directed against the judgement of the learned Prl. Sessions Judge, Dindigul made in Sessions Case No.64 of 2004, finding both the accused guilty under Section 302 of IPC and imposing punishment of life imprisonment on both the accused along with fine of Rs.1,000/- each, and in default to undergo rigorous imprisonment for three years.
2.The appellant in Crl.Appeal (MD) No.124 of 2005, is the first accused and the appellant in Crl.Appeal (MD) No.112 of 2007, is the second accused. It is brought to the notice of this Court that the appellant in Crl.Appeal (MD) No.124 of 2005, viz., Jayabal, S/o. Muthu Gounder, died on 10.03.2007 in Government Rajaji General Hospital, Madurai and to substantiate the same, the death certificate issued by the Madurai Corporation dated 17.03.2011 has been produced before this Court. Accordingly, by virtue of the death of the first accused, who is the appellant in Crl.Appeal (MD) No.124 of 2005, the said criminal appeal stands abated.
3.As stated above, the second accused has filed Crl.Appeal (MD) No.112 of 2007. The case of the prosecution was as follows:
(a) On 13.04.2003, at about 4.30 pm when the deceased was collecting blackgram dried in front yard of his house and his brother's house and his brother P.Basu, PW.1 was collecting firewood nearby, the accused Nos.1 and 2, came there and the second accused, who is the appellant in Crl.Appeal (MD) No.112 of 2007, saying that the deceased Karanthamalai was available in the front yard of his house, asked the first accused to stab him.
(b) When the said deceased Karanthamalai, was bending and collecting blackgram, the first accused, stabbed him with a knife on his back. Immediately, the second accused caught hold of the hands of the deceased Karanthamalai from his behind, and the first accused stabbed him twice on the chest of the deceased, and the deceased fell down and died on the spot.
(c) Both the accused threatened the PW.1, brother of the deceased and others with dire consequences by showing the knife and fled away. It is stated that, apart from PW.1, PW.2 Ayannan and PW.3 Malar, who were tapping water from the nearby common tap, witnessed the said occurrence.
(d) PW.1, brother of the deceased has preferred a complaint, Ex.P1 with PW.9, Murugan, the Head Constable of Natham Police Station and that was received by PW.9 on 13.04.2003 at 5.15 pm and he registered the said complaint under Sections 341 and 302 IPC and the FIR was marked as Ex.P6.
(e) The Head Constable, PW.8 handed over the FIR to the Judicial Magistrate III, Dindigul at 10.30 pm. The Inspector of Police PW.12, on receipt of information about the crime by wireless about 5.15 pm, came to police station at 5.45 pm and after receiving the FIR, went to the spot and recovered the blood stained earth and sample earth - MO.2 and MO.3 in the presence of witnesses under Mahazer Ex.P3 at 6.30 pm. The post-mortem was done by PW.10 Dr.Selva Rani.
(f) It was the case of the prosecution that both the accused surrendered before the Court and the first accused, who, in the police custody, voluntarily gave confession statement Ex.P.4 to the Inspector on 23.04.2003 at 4.30 pm. Pursuant to that, the blood stained knife MO.1 was recovered by the Investigating Officer from a bush near the bund of Karuppu Koil Odai in Lingavadi village as identified by the first accused.
(g) It was the further case of the prosecution that the wife of the deceased had illicit intimacy with the first accused in respect of which there was a quarrel between the first accused and the deceased one week prior to the occurrence in a public place and that was stated to be the motive to commit the crime. The first accused, joined with the second accused, went to the place of the deceased as stated above and as shown by the second accused, the appellant in Crl.Appeal (MD)No.112 of 2007, the first accused who brought the knife, first hit at the back of the deceased and thereafter, when the deceased was about to stand erect, the second accused, caught his hands behind him and again the first accused stabbed on the chest of the deceased with the knife.
(h) The evidence of PW.1, who happens to be the own brother of the deceased was that, the wife of the deceased was having illegal intimacy with the first accused and there was an altercation in the public place prior to the occurrence between the deceased and the first accused and thereafter, on the date of occurrence, the first accused took the second accused with him and the second accused has shown the deceased and the first accused has stabbed on the back of the deceased and thereafter, the second accused caught hold of the hands of the deceased from behind and the first accused inflicted two stabs on the chest of the deceased, that resulted in the instantaneous death of the deceased.
4.The learned Sessions Judge, has found that PW.1, PW.2 and PW.3, who were the eye witnesses, are belonging to the same community, viz., Kallar community in Nadu Theru, while accused 1 and 2 belong to Gounder community living on the North Street and the occurrence took place in Nadu Theru and therefore, other than Kallar community, no other person can be expected to be a witness and believing the evidence of the eye witnesses and taking note of the medical evidence as given by PW.10 Dr.Selva Rani, as it corroborates the version of the eye witnesses, and also considering the fact that the Investigating Officer before whom the first accused was stated to have given confession statement, was able to recover the knife (MO.1) used for committing the offence as shown by the first accused, and having come to the conclusion that there has been motive on the part of the first accused, and that there was no motive attributable to the second accused, however, on the ground that the eye witnesses and the circumstances have proved that it was the second accused who instigated the first accused, found both of them guilty under Section 302 IPC and imposed the punishment of life imprisonment with fine as stated above.
5.It is the main contention of Mr.K.Jeganathan, learned counsel for appellant in Crl.Appeal (MD)No.112 of 2007, who is the second accused, that there was a finding that no motive can be attributable to the second accused, and simply because he caught hold of the hands of the deceased, it cannot be said that he would have intended for any further stab stated to have been caused by the first accused, causing the death of the deceased and therefore, there is no intention on the part of the second accused in killing the deceased even though he caught hold of the hands of the deceased from the behind. It is also his submission that no motive or intention can be attributed to the second accused for the reason that in an altercation regarding the illicit intimacy of first accused with the wife of the deceased, stated to have occurred between the deceased and the first accused and even as per the prosecution, the second accused was not present and therefore, there cannot be any intention on the part of the second accused to kill the deceased. Further, admittedly the prosecution itself has not attributed any overt act against the second accused. He would also submit that when the occurrence took place on 13.04.2003, at 4.30 pm, the compliant was given at 5.15 pm, and though the Investigating Officer is stated to have handed over the FIR immediately to the Head Constable, to be sent to the Court, the FIR reached the Court only at 10.30 pm and therefore, according to him, between 6 pm to 10.30 pm, there is possibility for the Investigating Officer to have inserted the name of the second accused deliberately. Therefore, he has pleaded for setting aside the conviction against the second accused. He would rely upon the judgement of the Supreme Court in Ramashish Yadav and others vs. State of Bihar(1999 (8) SCC 555), wherein it was held that merely because two persons had held the deceased, while the other two gave blow, it cannot be said that there was common intention for those who caught hold of the deceased to commit murder. He would also rely upon the judgements in Harbans Nonia and another vs. State of Bihar (1992 Crl. L.J. 105) and Ram Sarup Singh and another vs. State of Bihar (1971 (3) SCC 262).
6. On the other hand, the learned Additional Public Prosecutor Mr.R.Ramachandran, has vehemently contended that there is cogent evidence of PWs.1 to 3, who were the eye witnesses and the facts have clearly elicited that the second accused was instrumental in showing the deceased and but for his catching hold of the hands of the deceased from his behind, the occurrence would not have happened and therefore, according to him, there is a common intention in committing the crime. He would also rely upon the post mortem certificate Ex.P.8, given by PW.10, showing multiple injuries, which were confirmed by the evidence of PW.1 with regard to the stabbing stated to have been made by the first accused, and therefore, he would submit that there is nothing warranting to interfere with the impugned judgement.
7. PW.1, who has given the complaint, marked as Ex.P1, in which it is clearly stated that his brother's wife Ratnam, was having illicit intimacy with Jayabal, S/o. Muthu Gounder, first accused, for the past one year and on the deceased accusing her of the said conduct, she went to her mother's house six months back and the deceased was living there along with his children. In the said complaint PW.1 has further stated that, it was the first accused who was having the knife in his hands, which is as follows:
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8. Even though one Periyasamy, who was stated to be present at the scene of occurrence was not examined, yet one Ayannan PW.2, was examined as eye witness. Further, PW.1, who is the author of Ex.P.1, in his evidence has reiterated as follows:
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He has also stated during the cross examination that he knows Malar, who was examined as PW.3. Simply because he has stated that he was not aware as to whether police have recovered the grams and the blood stained stick, that cannot, in our view, impeach the credibility of the evidence of PW.1.
9. Likewise, PW.2 Ayannan, has also, while speaking about the occurrence, stated as follows:
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10. Likewise, PW.3 Malar, who is stated to have been drawing water in a tap nearby has stated that on hearing the cry, she saw that the deceased having injury on the backside and when he stood straight, the second accused caught hold of the hands of the deceased from his behind and the first accused stabbed him on the chest of the deceased. The relevant portion of the evidence of PW.3, is as follows:
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11. In addition to that, Ex.P.6 FIR also confirms the said occurrence. Ex.P8 post mortem certificate confirms the stab injuries in addition to some other abrasions which would have taken place while the body of the deceased was lying down after the occurrence. The evidence of PW.10, the post mortem Doctor has clearly confirmed that the injuries No.1 and 2 are sufficient for causing death and the other injuries may be caused due to the reason that the body of the deceased was dragged or due to the movement of the body of the deceased after the occurrence.
12.It is also seen that blood stained knife M.O.1 has been recovered by the Inspector of Police at the instance of the accused in the presence of P.W.6 and one other witness. Merely because P.W.6 happens to be the Village Administrative Officer, his evidence cannot be discarded, especially when it has led to the recovery of blood stained knife M.O.1 used for commission of offence. There are cogent and coherent evidence in respect of occurrence and involvement of the accused in the commission of the offence. In such circumstances, the delay of nearly four hours in handing over the FIR to Court by the Investigating Officer cannot be considered to be a period used for the purpose of inserting the name of the second accused. The presence of the second accused in the scene of occurrence and his act of showing the deceased to the first accused and catching hold of the hands of the deceased are all the facts which have been proved beyond reasonable doubt and therefore, we are of the considered view that the judgement of the learned Sessions Judge finding the second accused guilty, who is the appellant in Crl.Appeal (MD)No.112 of 2007, cannot be set aside.
13. Now, coming to the question, as to whether the offence committed by the second accused would attract Section 302 IPC, as it is stated above, the first accused committed the overt act with the weapon which was brought by him and the second accused was admittedly not having any weapon and as found by the learned Sessions Judge, no motive can be attributable to the second accused, however, both of the accused were awarded life imprisonment. It is in evidence that at the time of prior occurrence stated to have taken place in a public place wherein there was an altercation between the deceased and the first accused, the second accused was not present and therefore, there cannot be any motive or intention attributable to him in respect of the offence, which has subsequently taken place. There is evidence that on the date of occurrence, the second accused has accompanied the first accused and shown the deceased person and also caught hold of the hands of the deceased after the first accused has given the first stab on the backside of the deceased. That conduct of catching hold of the deceased would certainly show that the second accused had knowledge that the stab by the first accused would cause death. But the action of the second accused cannot be said that he had any intention to cause death or likely to cause death. There was no overt act committed by the second accused. Even though it cannot be held that there was possibility of inserting his name in the FIR as stated above, it remains the fact that the prosecution has not proved that either there has been any motive or intention on the part of the second accused causing death or likely to cause death of the deceased.
14. Almost under similar circumstances, it was held by the Hon'ble Apex Court in Ramashish Yadav and others vs. State of Bihar (1999 (8) SCC 555), that the common intention implies acting in concert which requires the existence of pre-arranged plan which has to be proved either from the circumstances or from incriminating factors. It was, of course, acquitting the said persons who had caught hold of the deceased, the Supreme Court observed as follows: This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav.....
15. Again, under almost similar circumstances, the Supreme Court in Harbans Nonia and another vs. State of Bihar (1992 Crl.L.J. 105), has held as follows:
3. .... The various circumstances attending the prosecution which we have pointed out above show that these two appellants did not have any intention to participate with Shyambali Nonia to cause the death of the deceased. At the same time it is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injury which was facilitated by their catching hold of the deceased when Shaymbali Nonia was inflicting the stab wound. Hence, there is no escape for the conclusion on the evidence available that these two appellants shares at least the common intention with Shyambali Nonia to cause grievous hurt punishable under Section 326 read with Section 34, I.P.C. videState of Uttar Pradesh v. Ram Kishun, (1976) 3 SCC 449 :(1976 Cri.LJ 1559). For all the reasons stated above, we set aside the conviction of these two appellants under Sec.302 read with Section 34, I.P.C. and the sentence of imprisonment for life, instead convict them under Sec.326 read with Section 34, I.P.C.
16. Under these circumstances, we are of the view that in so far as it relates to the second accused, who is the appellant in Crl.Appeal(MD)No.112 of 2007, no intention to cause death has been proved by evidence and therefore, the second accused can be brought under Section 304 Part II IPC, since on proof it is clear that there was knowledge on the part of the second accused, but there was no intention to cause death. Therefore, the said accused is liable to be convicted only under Section 304 Part II IPC, instead of under Section 302 IPC.
17. Accordingly, the conviction and sentence of life given to the second accused stands modified and the second accused is convicted under Section 304 Part II IPC instead of under Section 302 IPC and sentenced to undergo RI for two years with fine of Rs.10,000/-, in default to undergo RI for 6 months. The period of sentence already undergone by the second accused is ordered to be given set off. Accordingly, while Crl.Appeal(MD)No.124 of 2005 stands abated, due to the death of the first accused, Crl.Appeal(MD)No.112 of 2007, stands dismissed with the modification in the conviction and sentence as stated above.