Research › Search › Judgment

Andhra High Court · body

2000 DIGILAW 702 (AP)

Kannappan and Anr. v. State

2000-09-11

N.DHINAKAR, R.BALASUBRAMANIAN

body2000
JUDGMENT R. Balasubramanian. J. - Appellants in this appeal are the accused in SC No. 52 of 1990 on the file of the Court of Session, Pudukkottai. First accused was charged and tried for an offence under Section 302 of the Indian Penal Code. Second accused was charged and tried for an offence under Section 302 r/w Section 34 of the Indian Penal Code. Learned Sessions Judge on trial found each one of the accused guilty in respect of the offences referred to above and sentenced them to undergo life imprisonment. The correctness of that judgment is called in question in this appeal by the convicted appellants. Heard Mr. A Natarajan, learned counsel for the appellants and Mr. S. Anbalagan learned Additional Public Prosecutor appearing for the State. 2. The brief facts of the prosecution case can be summarised as hereunder. The deceased in this case is Chellappan. He had a dispute with the father of the first accused in respect of certain lands. The second accused had a son by name Valathan. At 4.30 PM on 3-11-1989 the said Valathan was grazing cattle in the disputed land, referred to above. The deceased also brought his cattle at, that time to the same place. Finding that Valathan was grazing the cattle in the disputed land, the deceased questioned him as to why he is allowing his cattle to graze in the disputed land. This was followed by a wordy quarrel between the two. PW 2 was also grazing his cattle in a close-by place. Hearing the quarrel between the deceased and Valathan, PW 2 came running there. She saw in the disputed land, the first accused sitting on the chest of the deceased and stabbing him. She also saw the second accused holding the legs of the deceased. PW 1 also came running to the scene after hearing the noise and saw the first accused stabbing with a knife on the chest of the accused. He thereafter, pushed aside the first accused from the person of the deceased. Other witnesses also came to the scene of occurrence. PW 1 and Adhimoolam carried the injured to the house of Adhimoolam. While they were on their way, they sprinkled water on the face of the injured and they noticed that the injured was dead. He thereafter, pushed aside the first accused from the person of the deceased. Other witnesses also came to the scene of occurrence. PW 1 and Adhimoolam carried the injured to the house of Adhimoolam. While they were on their way, they sprinkled water on the face of the injured and they noticed that the injured was dead. Thereafter, the body of the deceased was brought by PW 1 and Adhimoolam and laid in the house of Adhimoolan. PWs. 1 and 2 went to PW 5, the Village Administrative Officer at Arimanam village before whom PW 1 gave a statement. PW 5 recorded that statement read it over to PW 1 and then got his signature. PW 2 also signed as a witness. PWs. 1, 2, 5 and the village menial went to the scene of occurrence and thereafter, they also went to the house of Adhimoolam in the village where they observed the dead body of Chellappan. PW 5 thereafter with the help of a petromax light went to the scene of occurrence. He also observed the place where the injured Chellappan was kept in the land and noticed the blood stains with the help of the petromax light. Thereafter, a complaint was laid with PW 8 the Sub-Inspector of Police. Alangudi Police Station by the village menial. PW 8, the Sub-Inspector of Police received Ex. P.1 at 9 PM and registered a case in Cr. No. 379 of 1989 for an offence under Section 302 of the Indian Penal Code. Ex. P. 9 Is the printed first information report. He sent the material records through police Constable Perumal to the Court as well as to the higher officials. At 9.30 PM, the investigating officer who had gone out on some other work came back to the police station to whom was handed over Ex. P.9. On receipt of Ex. P.9 PW 12, the investigating officer went to the scene village at 10.30 PM. He visited the house of Adhimoolam and observed the dead body. Thereafter, he went to the scene of occurrence and in the presence of witnesses prepared Ex. P.6 observation mahazar and drew a rough sketch Ex. P. 16. With the help of the photographer, he caused the body as well as the scene of occurrence to be photographed. MOs. 2, 3 and 19 were recovered by him under a mahazar Ex. Thereafter, he went to the scene of occurrence and in the presence of witnesses prepared Ex. P.6 observation mahazar and drew a rough sketch Ex. P. 16. With the help of the photographer, he caused the body as well as the scene of occurrence to be photographed. MOs. 2, 3 and 19 were recovered by him under a mahazar Ex. P. 7 in the presence of PW 5 and another. Between 11.45 PM and 4 A.M. the investigating officer conducted inquest over the dead body of Chellappan. Ex. P. 17 is the inquest report. At that time, he recovered MOs. 1 and 4 produced by the mother of the first accused under a mahazar EP. P.8 in the presence of witnesses. PW 12 then sent the dead body with a requisition Ex. P.4 through PW 7 for conducting post-mortem. Alongwith the dead body he sent mat pillow and MO 1. He appointed PW 10 as a Special Officer to trace and arrest the accused. 3. PW 4, the Medical Officer had conducted post-mortem on the dead body of the deceased at 11 AM on 4-11-1989. Ex. P. 5 is the post-mortem certificate. PW 4 noticed the following symptoms on the body of the deceased: "External Iryuries: 1. A punctured wound at the left side of chest just below the nipple of 2 cm x 1/2 cm. Oval shaped. Surrounding portion of the wound is covered with clotted blood. 2. 6 cm above the 1st injury and lateral to left nipple interrupted abrasions noticed. 3. 3 cm above the 2nd wound abrasion of 1/2 cm. 4. Abrasion of 6 cm x 4 cm on the back at right scapula and close to the spinal cord. On dissection of the first wound corresponding punctured wound piercing the 5th intercostal space left side chest with clotted blood surrounding on opening the thorax corresponding punctured wound traversing the edge of the lower lobe of left lungs. Corresponding punctured wound at the left auricle, at its middle end pericardium. The thoracic cavity contains of about 2 mitres of dark coloured fluid blood. The pericordium and heart soaked with altered dark coloured fluid blood. Internal Examination Hyoid bone Intact. Heart weight 200 gms. Pale: Chambers empty, Lungs right 500 Gms. Left 450 gms. Pale. Stomach with partially digisted (rice) food particles, Liver 1500 Gms. Pale. Spleen 180 Gms. Pale, Kidnyes, right and left 180 Gms. The pericordium and heart soaked with altered dark coloured fluid blood. Internal Examination Hyoid bone Intact. Heart weight 200 gms. Pale: Chambers empty, Lungs right 500 Gms. Left 450 gms. Pale. Stomach with partially digisted (rice) food particles, Liver 1500 Gms. Pale. Spleen 180 Gms. Pale, Kidnyes, right and left 180 Gms. Small and large intestines, distended with Gas. Bladder empty pale Skull bone intact. Brain and its coverings intact. 1500 Gms. Weights, Spinal cord intact. " PW 4 was of the opinion that the deceased would appear to have died due to shock and haemorrhage due to penetrating of left auricle of the heart about 18 hours prior to post-mortem. P.W. 7 after completion of post-mortem, recovered MOs 11 to 14 from the dead body and handed over the same at the police station. On 8-11-1989 PW 10 produced the accused before PW 12. At that time, the first accused was examined in the presence of witnesses. MOs. 15 and 16 from the first accused was recovered under Form 95. The second accused was examined and MOs. 17 and 18 were also recovered. At that time, the first accused complained that he received an injury during the course of the occurrence and he was sent to PW 3, the Medical Officer. PW 3, the Medical Officer examined the first accused and issued Ex. P.3, wound certificate. The Doctor noticed a healed abrasion over the inner side of left pinna, scab seen over the wound. The Doctor was of the opinion that the injury is, simple in nature. The accused was thereafter sent for judicial remand. The case properties were requested to be sent for chemical examination by the investigating officer by his request Ex. P.10. A requisition was given to the Magistrate to record the statements of PWs. 1 2 and 3 under Section 164 of the Code of Criminal Procedure. After examining the medical witness as well as other witnesses and completing the investigation the investigating officer filed his final report against the accused for the offences referred to earlier. 4. When the accused were questioned under Section 313 of the Code of Criminal Procedure they denied their complicity in the crime. They also added that the witnesses are giving false evidence. 4. When the accused were questioned under Section 313 of the Code of Criminal Procedure they denied their complicity in the crime. They also added that the witnesses are giving false evidence. Each one of the accused have filed a written statement in addition to their answers in the statement recorded under Section 313 of the Code of Criminal Procedure. The sum and substance of their respective statement is as follows: "The deceased was stabbed by his sisters husband Mudhaliappan and he died only on account of that injuries. Adhimoolam Konar, in whose house the occurrence took place informed the accused about the dead body being, kept in his house. The accused were shocked "On receiving that news. Adhimoolam went to the police station and brought the police. At 9.30 PM, the police arrived and they observed the dead body. The Panchayat, Board President and the past Panchayat Board President and all others, who were inimical towards the family of the accused, were called together and there was a deliberation among them selves in the presence of police. The accused were asked to stay in their house. Thereafter, the accused were taken to the police station at 3 A.M. on the following morning and they were told that it is they who killed the deceased Chellappan and that they must accept the same. The accused denied. They were kept at the police station till 8-11-1998 and then produced before the Court. The accused are innocent and they have nothing to do with the offence. 5. Mr. A. Natarajan, learned counsel appearing for the appellants contends that on the proved and established facts, the conviction of the second accused for an offence including an offence punishable under Section 302. IPC r/w Section 34. IPC cannot be made out at all. In Ex. P.1 it is stated that the second accused was only near the side of Chellappan when the fatal act was attributed tow the first accused. Further, at the end of Ex. P. 1 it is found stated that PW 2 informed later on to the informant (PW 1) that the second accused caught hold of the legs of the deceased. P.1 it is stated that the second accused was only near the side of Chellappan when the fatal act was attributed tow the first accused. Further, at the end of Ex. P. 1 it is found stated that PW 2 informed later on to the informant (PW 1) that the second accused caught hold of the legs of the deceased. Learned counsel also contends that there appears to be a quarrel immediately preceding the fatal attack by the first accused on the deceased and therefore, assuming that the prosecution case is true as reflected in the oral evidence that the second accused caught hold of the legs of the deceased and thereafter, he facilitated the first accused to commit the fatal act, yet, it cannot be said that the second accused with the intention and in order to enable the first accused caught hold of the legs of the deceased since admittedly, there was a quarrel. As far as first accused is concerned, the submission of the learned counsel is that there was a sudden quarrel between the son of the second accused and the deceased in this case regarding the son of the second accused grazing the cattle in the disputed land. Itis on record that the deceased and the father of the first accused had a quarrel over the land in dispute. Therefore, the prosecution evidence in toto shows that there was a quarrel between the son of the second accused and the deceased immediately preceding the occurrence in this case. Therefore, it cannot be said that the first accused had pre-meditated the murder and at best, it can be said that in a sudden quarrel, the first accused had took a weapon and caused the fatal act. Therefore, the conviction under Section 302 IPC cannot be sustained. We heard learned Additional Public Prosecutor on these points. 6. In the light of the arguments advanced by the learned counsel on either side, we perused the records. Second accused is the junior paternal uncle of the first accused. PW 2 is eye-witness to the occurrence. PW 1 claims to have reached the scene of occurrence after hearing the noise of the wordy quarrel between the deceased and the son of the second accused. On reaching the scene of occurrence he saw the first accused sitting on the chest of the deceased with the weapon of offence. PW 2 is eye-witness to the occurrence. PW 1 claims to have reached the scene of occurrence after hearing the noise of the wordy quarrel between the deceased and the son of the second accused. On reaching the scene of occurrence he saw the first accused sitting on the chest of the deceased with the weapon of offence. Therefore, the entire occurrence, as far as the fatal act is concerned, is spoken to only by PW 2. The evidence of PW2 shows that she was grazing her cattle in a nearby area. Her evidence further shows the following: "The deceased also brought his cattle to the land where the son of the second accused was also grazing the cattle the deceased asked Valathan, son of the second accused as to why he is allowing his cattle to graze there. Valathan asserted that he will do only like that immediately. Chellappan telling Valathan to chase the cattle out of that land, pushed Valathan, Valathan raised a noise. On hearing his noise, the second accused and his wife came to the scene of occurrence. Both of them asked the deceased as to why he is pushing Valathan, Valathan and the second accused were involved in a scuffle, each pushing the other. Ex. P.1 is laid by PW 1. It shows the following: "At about 4.30 PM between Valathan and the deceased there was a wordy quarrel in the disputed land, on hearing the commotion, he reached the scene of occurrence, he also saw PW 2 there, first accused was sitting on the chest of the deceased with a knife and he pushed the first accused aside, the second accused was by the side at that time, PW 2 told later on that the second accused caught hold of the legs." PW 1 s evidence is also more or less on the same lines. Therefore, the materials noticed by us above clinchingly establish that immediately preceding the fatal attack on the deceased in this case by the first accused, there was a wordy quarrel between the deceased and Valathan, son of the second accused with reference to grazing of the cattle by Valathan in the disputed land. Therefore, the materials noticed by us above clinchingly establish that immediately preceding the fatal attack on the deceased in this case by the first accused, there was a wordy quarrel between the deceased and Valathan, son of the second accused with reference to grazing of the cattle by Valathan in the disputed land. The external injuries noticed on the body of the deceased in the post-mortem certificate are four in number out of which injury No. 1 is a punctured wound and injury No. 2 is just above injury No. 1, injury No. 3 is also above injury No. 2 and injury No. 4 is only an abrasion. The Doctor who conducted post-mortem in this case would state even in the chief-examination that injury Nos. 2 and 3 on the body of the deceased could have been possible in a scuffle and injury No. 4 is possible by the fall of the body in a rough surface. Injury No. 1 is possible by a weapon like MO 1. Therefore, it is clear from the above that there appears to be only one fatal attack attributed to first accused with reference to the deceased and it, is established by the medical evidence as well. 7. The evidence of PW 2 clearly establishes that it is the first accused who caused the fatal attack on the deceased. The medical evidence of the Doctor, PW 4 read in the context of Ex. P.5 the post-mortem certificate, clinchingly establishes the cause of the death in this case as due to homicidal violence. Therefore, there cannot be any doubt that the deceased in this case has been done to death and the fatal injury is caused by the first accused. 8. On the admitted facts noticed above, the question that falls for consideration is whether the first accused could be convicted for the offence of murder and the second could be convicted for sharing the common intention of the first accused in committing the murder. In this context, learned counsel appearing for the appellants brought to our notice a judgment of this Court in Rqja Asari and another v. State1 wherein it had been held as follows: "This appeal arose out of the conviction of appellants 1 & 2 under Section 302 and Sections 302/149, IPC respectively. In this context, learned counsel appearing for the appellants brought to our notice a judgment of this Court in Rqja Asari and another v. State1 wherein it had been held as follows: "This appeal arose out of the conviction of appellants 1 & 2 under Section 302 and Sections 302/149, IPC respectively. The case of the prosecution was that the accused No. 1 caused the death of P during a scuffle after an altercation between P and A1, by stabbing P with his pen knife while A2 (Als father) was holding p and Al and A2. Held: It is not the case of the prosecution that the deceased was armed with any weapon at the time of scuffle. Therefore an inference has to be drawn to the effect that the first injury on the person of the first accused should have been caused during his attempt to stab the deceased. It is not the case of the prosecution that the first accused came to the scene of occurrence armed with any deadly weapon. It is the case of the prosecution that the first accused took out the pen knife attached to a key-chain from his waist and after opening it gave the stabs to the deceased. There is no evidence on behalf of the prosecution that the deceased was armed with any weapon with which he attempted to attack the accused. On the other hand it shows that the first accused has committed the offence during the course of the scuffle with the deceased. The scuffle between the accused on the one hand and the deceased on the other, the falling down of the first accused, the manner in which he had taken out the knife from his waist and stabbed the deceased after opening it, all go to show that the first accused has caused the stab injuries on p which resulted in his death without any premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the first accused having taken undue advantage or acted in a cruel or unusual manner. On a consideration of the materials placed before us, we come to the conclusion that the conviction of the first accused under Section 302. IPC is liable to be set-aside and he has to be convicted under Section 304. (Part II) IPC." 9. On a consideration of the materials placed before us, we come to the conclusion that the conviction of the first accused under Section 302. IPC is liable to be set-aside and he has to be convicted under Section 304. (Part II) IPC." 9. In this case also, as brought to our notice by the learned counsel for the appellants, the fatal attack on the deceased was preceded by a quarrel between Valathan (son of the second accused) and the deceased. This wordy quarrel was followed by the deceased and Valathan involved in a scuffle, each pushing the other and thereby trying to overpower. The evidence shows that the second accused and his wife rushed to the scene of occurrence and questioned the deceased as to why he is pushing their son. Second accused is the paternal uncle of the first accused. The first accused immediately came there with the weapon of offence in his hand and caused the injury on the deceased. As far as the overt act attributed to the second accused that he caught hold of the legs of the deceased when the first accused caused the fatal attack on the deceased is not free from doubt. In Ex. P1 it is stated that the, first accused was sitting on the chest of the deceased with the weapon of offence. It is no doubt true that PW 2 in her evidence would state that the second accused caught hold of the legs of the deceased and thereafter, the first accused sitting on the chest of the deceased in this case caused the fatal attack. We have already noticed that there was a scuffle between the deceased and the son of the second accused and they were pushing each other in order to over power. Under these circumstances, the deceased falling to the ground cannot be ruled out totally. It could be noticed in this context that in Ex. P.1 there is a, statement that PW 2 told later on to PW 1 (informant) that the second accused caught hold of the legs. Even then, there is no clear averment in Ex. P.1 as to whether the first accused stabbed the deceased only after the second accused caught hold of the legs of the deceased or he caught hold of the legs later on. In the context of the omission in Ex. Even then, there is no clear averment in Ex. P.1 as to whether the first accused stabbed the deceased only after the second accused caught hold of the legs of the deceased or he caught hold of the legs later on. In the context of the omission in Ex. P.1 on this vital information we are of the opinion that it would be unsafe to accept the evidence of PW 2 for the first time in Court that the second accused caught hold of the legs of the deceased and thereafter, the first accused stabbed the deceased Whatever it may be, there appears to be a sudden quarrel between the deceased and Valathan followed by scuffle, as already noticed. In the context of the above facts, it is not possible to conclusively hold that the second accused, intentionally aided the first accused in committing the murder of the deceased in this case. To that effect, there is a judgment of our High Court referred to earlier. Under these circumstances, we are of the considered opinion that on the scanty material available in this case the conviction of the second accused for the offence under Section 302 r/w 34 IPC cannot be sustained and accordingly, the second accused is entitled to be acquitted and he is acquitted of the offence for which he was tried and convicted. 10. Coming to the offence with which the first accused can be convicted, we are of the considered opinion that the judgment referred to earlier also equally applies to the case on hand. In the case on hand, we have already noticed that the fatal attack by the first accused was preceded by a sudden quarrel, we noticed that the second accused alongwith his wife on hearing the noise came there and questioned the deceased as to why he is pushing their son. Therefore, we are in a position to visualize the situation in which the first accused could have appeared at the scene of occurrence especially when he is closely related to the second accused as well as to Valathan when he caused the fatal attack. In other words, the fatal attack on deceased was in the course of a sudden quarrel and there appears to be no pre-meditation at all. He had caused only one injury which of course, turned to be fatal. In other words, the fatal attack on deceased was in the course of a sudden quarrel and there appears to be no pre-meditation at all. He had caused only one injury which of course, turned to be fatal. Under these circumstances, we are of the opinion that the first accused cannot be convicted for the offence of murder. However, he is liable to be convicted for an offence punishable under Section 304-1 of the Indian Penal Code. Accordingly, while acquitting the second accused of the charge under Section 302 of the Indian Penal Code r/w. 34 IPC and setting aside the judgment of the learned Sessions Judge in regard thereto totally, we convict the first accused only for the offence under Section 304-1 of the Indian: Penal Code instead of the offence under. Section 302 IPC for which he stands convicted by the Court of Sessions. For the offence under Section 304 (l) IPC. for which A-1 is found guilty by us, he would stand sentenced to a rigorous imprisonment for a period of seven years together with a fine of Rs. 1,000/payable within eight weeks from the date of the receipt of a copy of this order in default to undergo rigorous imprisonment for a period of six months. Of course the sentence of imprisonment shall run concurrently. 11. This appeal is allowed in so far as the second accused is concerned and partly allowed in so far as the first accused is concerned on the lines indicated above. Appeal allowed accordingly. 1. 1995-I LW (Crl.) 325.