Judgment :- (Appeal against the judgment dated 17.09.2003 made in S.C.No.285 of 2001 on the file of the Additional Sessions Judge, (Fast Track Court No.III), Chennai.) M. Jeyapaul, J. Accused 1 to 4 in S.C.No.285 of 2001, who suffered a judgment of conviction at the hands of the Additional Sessions Judge, (Fast Track Court No.III), Chennai, move the present appeal. 2. The learned Additional Sessions Judge (Fast Track Court No.III), Chennai convicted the first accused for an offence under Section 341 IPC and imposed a fine of Rs.500/-, in default to undergo simple imprisonment for one month; convicted him for an offence under Section 302 I.P.C and sentenced him to undergo life imprisonment and imposed a fine of Rs.5000/-, in default to undergo simple imprisonment for six months and convicted the second accused for an offence under Section 341 IPC and imposed a fine of Rs.500/-, in default to undergo simple imprisonment for one month; convicted him for an offence under Section 307 IPC and imposed a fine of Rs.2000/-, in default to undergo simple imprisonment for six months; convicted him for an offence under Section 302 r/w 34 IPC and sentenced to undergo life imprisonment and imposed a fine of Rs.3000/-, in default to undergo simple imprisonment for six months and convicted the third accused for an offence under Section 341 IPC and imposed a fine of Rs.500/-, in default to undergo simple imprisonment for one month; convicted him for an offence under Section 307 IPC and imposed a fine of Rs.2000/-, in default to undergo simple imprisonment for six month; convicted him for an offence under Section 302 r/w 34 IPC and sentenced to undergo life imprisonment and imposed a fine of Rs.3000/-, in default to undergo simple imprisonment for six months and convicted the fourth accused for an offence under Section 341 IPC and imposed a fine of Rs.500/-, in default to undergo simple imprisonment for one month; convicted him for an offence under Section 307 IPC and imposed a fine of Rs.2000/-, in default to undergo simple imprisonment for six months and convicted him for an offence under Section 302 r/w 34 IPC and sentenced him to undergo life imprisonment and imposed a fine of Rs.2000/-, in default to undergo simple imprisonment for six months. 3. 3. The charge against the appellant / accused 1 to 4 is that on 06.05.1999 at about 11 p.m, opposite Door No.67, Kothavalchavadi Housing Unit, A1 to A4 wrongfully restrained Govindasamy, since deceased and his brothers Krishnan and Elumalai with an intention to cause their death and thereby committed an offence punishable under Section 341 IPC. During the course of the same transaction, the first accused attacked Govindasamy with knife in furtherance of the common intention of all the accused and caused his death and thereby A1 committed an offence punishable under Section 302 IPC and the accused 2 to 4 committed an offence punishable under Section 302 r/w 34 IPC. During the course of the same transaction in furtherance of the common intention to murder Elumalai, the second, third and fourth accused attacked the said Elumalai and attempted to murder him and thereby they committed an offence punishable under section 307 r/w 34 IPC. 4. The prosecution has examined as many as 10 witnesses and marked 34 documents and 4 material objects to establish their case. On the side of the defence, Photographs with negatives were marked as M.O.1 and M.O.2 5. The case in brief of the prosecution as reflected in the evidence adduced by the prosecution is as follows: (i) Krishnan, P.W.1 and Elumalai, P.W.2 are the brothers of the deceased Govindasamy. On 06.05.1999, at about 10.30 p.m., P.W.1, P.W.2, P.W.3 and the deceased Govindasamy attended marriage reception at Krishna Marriage Hall at Saidapet. (ii) The deceased Govindasamy was serving sambar to the guests, who attended the marriage reception. The first accused Suresh was found in a drunken mood. He questioned about the quality of sambar served by Govindasamy. There was a wordy quarrel between Govindasamy and the first accused Suresh. Thereafter, A1 went out in an angry mood. (iii) P.W.1, P.W.2 and P.W.3 along with the deceased proceeded to their house after the marriage reception was over. At about 11.30 p.m. on 06.05.1999, the first accused accompanied by A2 to A4 came down to a place opposite Door No.67, Housing Board Unit, armed with weapon and having exhorted other accused to commit murder of Govindasamy, attacked him with knife on his right shoulder and as a result of which, the said Govindasamy collapsed to the ground. At about 11.30 p.m. on 06.05.1999, the first accused accompanied by A2 to A4 came down to a place opposite Door No.67, Housing Board Unit, armed with weapon and having exhorted other accused to commit murder of Govindasamy, attacked him with knife on his right shoulder and as a result of which, the said Govindasamy collapsed to the ground. The second, third and fourth accused attacked Elumalai on his chest, face and stomach with knife and as a result of which, the said Elumalai fell down in a pool of blood. (iv) Thereafter, the injured Govindasamy and Elumalai, P.W.2 were taken to Royapettah Government Hospital through the Auto, driven by Paneerselvam, P.W.8. (v) Dr.Senkathir Selvan, P.W.10 admitted Govindasamy at 00:05 hours on 07.05.1999 and found an incised wound measuring 5 x 2 cm on the right shoulder of Govindasamy. Having found that there was no pulse or heart beat, he has pronounced him dead at 00:25 hours on the said day. The copy of the accident register reflecting the injury found on the person of Govindasamy has been marked as Ex.P.14 through P.W.10. (vi) P.W.10 also admitted Elumalai, P.W.2 for treatment at the same time and found a stab injury over the sternum measuring 4 x 1.5 cm, incised wound measuring 3 x 12 x 12 cm over the left cheek and incised wound measuring 5 x 12 x 12 cm over the left side of chin. P.W.10 was informed that the deceased as well as P.W.2 were attacked by a known persons at about 11 p.m. on 06.05.1999. A copy of the accident register for P.W.2 is marked as Ex.P.15. (vii) P.W.1 has lodged the First Information Report on the way to the Hospital at about 11.30 p.m. itself on 06.05.1999. The Inspector of Police, P.W.12 having received the report Ex.P.1 from P.W.1 registered a case in Cr.No.609/1999 under Sections 341, and 307 IPC. He prepared printed First Information Report, Ex.P.17. (viii) P.W.12 rushed to the scene of occurrence and prepared observation mahazar Ex.P.5 in the presence of Murugan, PW.17. He also drew rough sketch Ex.P.18 reflecting the scene of occurrence. (ix) Blood stained earth and sample earth were recovered under seizure mahazar Ex.P.6 in the presence of Murugan, P.W.7. (x) P.W.12 received death intimation of Govindasamy from Royapettah Government Hospital. (viii) P.W.12 rushed to the scene of occurrence and prepared observation mahazar Ex.P.5 in the presence of Murugan, PW.17. He also drew rough sketch Ex.P.18 reflecting the scene of occurrence. (ix) Blood stained earth and sample earth were recovered under seizure mahazar Ex.P.6 in the presence of Murugan, P.W.7. (x) P.W.12 received death intimation of Govindasamy from Royapettah Government Hospital. There upon, he converted the case into one under Sections 341, 307 and 302 IPC and having prepared the Express Report, Ex.P.19, he despatched the same to the learned Judicial Magistrate. P.W.12 went to the Government Hospital, Chennai and recovered the blood stained shirt and pants of Elumalai, P.W.2 in the presence of Murugan, P.W.7. (xi) On 07.05.1999, he conducted inquest on the dead body of Govindasamy in the presence of Panchayatdars and prepared inquest report, Ex.P.20. (xii) Dr. K.Ravindran, who received a requisition from P.W.12, conducted postmortem examination on the dead body of Govindasamy on 07.05.1999. He found the following injuries : " 1. Slightly oblique cut injury with regular margin in the antero lateral and lower aspect of right side of neck 4 x 1.5 x 9 cms. The upper medial end is situated 5 cms to the right of root of neck. The lower lateral end is situated 6 cms to the left of right shoulder joint. The lower border of the wound is situated 7 cms above the right clavicle. Both ends are acute. O/D The weapon has cut through the muscles and entered in to the right thoracic cavity beneath the clavicle through the first right intercostal space posteriorly and has produced a through and through cut injury in the upper lobe of right lung in its lateral aspect entry wound 2 cms x 1.3 cms. Exit wound 1.5 x 1 cms in the hilum of right lung seen. 0.3 x 0.1 cms cut injury on the right subclavian artery seen. 1000 ml of fluid blood and 70 gms of clotted blood seen in the right thoracic cavity. Right lung is found collapsed. Heart : Chambers contained clotted blood Lungs : Right lung – collapsed. Left lung – c/s congested. Larynx and Trachea : Contained frothy fluid. Hyoid Bone : Intact. Stomach : 500 gms of fully recognisable cooked food particle. No specific smell perceived. Mucosa – Pale. Liver, Spleen and Kidneys : C/S congested. Right lung is found collapsed. Heart : Chambers contained clotted blood Lungs : Right lung – collapsed. Left lung – c/s congested. Larynx and Trachea : Contained frothy fluid. Hyoid Bone : Intact. Stomach : 500 gms of fully recognisable cooked food particle. No specific smell perceived. Mucosa – Pale. Liver, Spleen and Kidneys : C/S congested. Bladder : Empty Brain : C/S Pale." (xiii) He has opined in his postmortem certificate, Ex.P.34 that the deceased died of shock and Hemorrhage due to external injury No.1 with its corresponding internal injuries. (xiv) The personal apparels found on the dead body of Govindasamy were also recovered under seizure mahazar, Ex.P.21 for the purpose of investigation in this matter. (xv) P.W.12 arrested the third accused Ramesh at Besant Nagar, Eliots Beach on 08.05.1999 in the presence of Periasamy, P.W.5. On the basis of the admissible portion, Ex.P.22, in the confession statement given by the third accused Ramesh, the blood stained knife was recovered near Anjaneyar Temple on VGP Road. Thereafter, the third accused was remanded to Judicial custody. P.W.12 received information that the first accused Suresh, second accused Adaikalam and the fourth accused Suresh surrendered before the learned Judicial Magistrate. P.W.12 having filed necessary application before the learned Judicial Magistrate took police custody of those three accused on 25.05.1999 and examined them in the presence of Selvam, P.W.9. On the basis of the admissible portion, Ex.P.26 in the confession statement given by the first accused Suresh, on the basis of the admissible portion, Ex.P.27 in the confession statement given by the second accused Adaikalam and on the basis of the admissible portion, Ex.P.28 in the confession statement given by the fourth accused Suresh, knives were recovered under relevant seizure mahazars. (xvi) Having completed the investigation, P.W.12 lodged final report as against the accused for offence under Section 341, 302 and 307 r/w 34 IPC on 21.07.1999. 6. The incriminating portion found in the testimony of prosecution witnesses were put to the accused under Section 313 Cr.P.C. The first accused responded saying that he had attacked the deceased Govindasamy in order to defend himself from the assault of the said Govindasamy. Further Accused 2 to 4 have denied their role in the occurrence spoken to by the witnesses examined on the side of the prosecution. 7. Further Accused 2 to 4 have denied their role in the occurrence spoken to by the witnesses examined on the side of the prosecution. 7. The learned trial Judge having relied upon the ocular testimony of P.W.1 to P.W.3 in the background of the medical testimony available on record, has come to the conclusion that the accused wrongfully restrained the deceased and the other prosecution parties with an intention to cause the death of the deceased Govindasamy and Elumalai, P.W.2 and thereby they committed an offence punishable under Section 341 IPC. In furtherance of the common intention of all the accused, the first accused committed murder punishable under Section 302 IPC and other accused 2 to 4 committed offence punishable under Section 307 r/w 34 IPC. The trial court also found that the accused 2 to 4 in furtherance of their common intention to do away with the life of Elumalai, attacked him with lethal weapons and attempted to cause his death, thereby they committed an offence punishable under Section 302 r/w 34 IPC. 8. The learned Senior counsel Mr.R.Shanmugasundaram appearing for the first and second accused would contend that the trivial dispute which took place in the marriage reception hall had culminated in the occurrence, where the first accused had to defend himself from the onslaught of the deceased Govindasamy who was armed with weapon. Referring to the stand taken by the first accused, when he was questioned under Section 313 Cr.P.C, the learned Senior counsel for the first and second accused would submit that the first accused had taken a concrete stand that he attacked Govindasamy exercising his right of private defence. Referring to the distance between the place of occurrence and the marriage hall, where the trivial quarrel erupted, the learned Senior Counsel would submit that the occurrence had taken place in continuance of the quarrel which erupted just few minutes earlier to the occurrence proper. Referring to the seat of injury and the evidence of Jothi, P.W.3, who would state that the deceased Govindasamy was carrying a child on his shoulder at the time of occurrence, the learned Senior Counsel for the first and second accused would submit that the first accused would not have intended to cause the death of Govindasamy, nor would he have intended to cause injury , which would ultimately cause the death of Govindasamy. For the aforesaid reasons, he pleads that A1 and A2 deserve acquittal. 9. The learned Senior Counsel Mr.V.Gopinath appearing for the third and fourth accused would submit that if at all A3 and A4 had intended to cause the death of Elumalai, they would have indiscriminately attacked Elumalai and caused his instantaneous death. It is his submission that as per the prosecution, the first accused exhorted the other accused to attack only Govindasamy, the deceased in this case. The very fact that the third and fourth accused had allegedly attacked P.W.2 would go to show that they would not have shared the common intention of the first accused in causing the death of Govindasamy. Referring to the seat of injury and the nature thereof alleged to have been caused by the third and fourth accused, the learned Senior Counsel for them would submit that they would not have intended to cause the death of Elumalai. 10. The learned Additional Public Prosecutor would submit that the trivial quarrel which erupted at the marriage hall was of course the cause for the subsequent occurrence. But the occurrence proper had taken place at the scene located about 1/2 km away from the marriage reception hall. Further he would submit that there was sufficient time gap between the trivial quarrel and the occurrence proper. The learned Additional Public Prosecutor would submit that there is no evidence to show that the prosecution parties were armed with any weapons. P.W.1 to P.W.3 have categorically spoken to the role of each and every accused and the same was accepted by the trial Judge. There is no need for interference with the well considered judgment, he would further contend. 11. Krishnan, P.W.1, and Elumalai, P.W.2 are none other than the brothers of the deceased Govindasamy. Jothi, P.W.3 is the widow of the deceased Govindasamy. They have spoken to the fact that they have also participated in the marriage reception of their relative. They have deposed in one voice that there was a petty quarrel at the marriage reception hall, where the deceased Govindasamy pushed down the first accused and the first accused went away from the marriage hall in an angry mood. Elumalai, P.W.2 has sustained injury in the occurrence. Though he is the brother of the deceased, we cannot eschew his testimony on account of the fact that he also sustained injury in the occurrence. Elumalai, P.W.2 has sustained injury in the occurrence. Though he is the brother of the deceased, we cannot eschew his testimony on account of the fact that he also sustained injury in the occurrence. It is quite natural for Krishnan, P.W.1, who is the brother of the deceased and Jothi, P.W.3, who is the widow of the deceased to accompany the deceased after attending marriage reception to proceed to their house. Therefore their testimony that they witness the occurrence is found to be convincing and trustworthy. They have deposed before the trial court that while they were proceeding along with their kith and kin to their respective house, all the four accused came with lethal weapons and the first accused having proclaimed to do away with the life of Govindasamy, stabbed him on his right shoulder and caused lethal injury and the other accused 2 to 4 attacked Elumalai, P.W.2 and caused injury on his person. 12. Except the petty quarrel, which took place about 1/2 an hour prior to the occurrence proper, no motive has been of course attributed to the accused. Sometimes, a trivial quarrel is taken to heart by some persons to wreak vengeance. As rightly pointed out by the learned Additional Public Prosecutor, there had been time gap between the trivial quarrel that took place at the marriage hall and the occurrence proper that took place unfolded opposite Door No.67, Kothavalchavadi Housing Unit. If at all occurrence proper had taken place at the marriage reception hall itself, then we can accept the submissions made by the learned Senior Counsel for the first and second accused that in the height of quarrel one party had to attack the other party and in the melee, the first accused who spotted a knife over there attacked Govindasamy and caused injury. Here, in this case, we find from the testimony of P.W.1 to P.W.3 that the first accused had to get out of the marriage hall immediately after the petty quarrel in a very angry mood. It is found from the evidence that the fourth accused has come armed with lethal weapon. Of course, there had been some suggestion to the witness examined on the side of the prosecution that the first accused exercised his right of private defence, unable to bear the attack launched by the first accused. It is found from the evidence that the fourth accused has come armed with lethal weapon. Of course, there had been some suggestion to the witness examined on the side of the prosecution that the first accused exercised his right of private defence, unable to bear the attack launched by the first accused. The same stand had been taken by the first accused when he was questioned under Section 313 Cr.P.C. also. We find that there is dearth of materials to show that the prosecution parties were armed with any weapons at the time of occurrence unfolded. The testimony on the side of prosecution would reflect that only the accused were found armed with weapons. Therefore, we are inclined to reject the submission made by the learned Senior Counsel for the first and second accused that the first accused had to exercise his right of private defence, when the deceased Govindasamy started attacking the first accused. 13. Of course, P.W.3 has stated that the occurrence took place when Govindsamy was proceeding taking his child on his shoulder. It is her further version that the child sleeping on the one side of the shoulder caught hold of the other side of the neck of Govindasamy. The postmortem Doctor has deposed that if a child was lying on the shoulder of the deceased catching hold of the other side of the neck of the deceased, there would have been no possibility for causing such an injury on the deceased. All the ocular witnesses have deposed that the first accused having proclaimed to do away with the life of Govindasamy, charged Govindasamy. There is every possibility for Govindasamy on hearing such a noise and observing menacing movement of the first accused to shake off the child involuntarily from its position. The injured witness has also categorically deposed that the first accused stabbed the deceased and caused injury on his right shoulder. The said Govindasamy would not have received the injury when the child was taking a nap on the one side of the shoulder catching hold of the other side of the neck. P.W.3 does not say that when A1 stabbed Govindasamy, the child was kept immobile on his shoulder. 14. Coming to the seat of injury and the nature of injury, we have seen the postmortem Doctor speaking about the gravity of injury. P.W.3 does not say that when A1 stabbed Govindasamy, the child was kept immobile on his shoulder. 14. Coming to the seat of injury and the nature of injury, we have seen the postmortem Doctor speaking about the gravity of injury. The injury was found on the antero lateral and lower aspect of right side of neck measuring 4 x 1.5 x 9 cms. The depth of injury speaks volumes of the vehemence with which the attack was launched by the first accused. The lower border of the wound was found situated 7 cms above the right clavicle. The weapon has cut through the muscles and entered into the right thoracic cavity beneath the clavicle through the first right intercostal space posteriorly and has produced a through and through cut injury in the upper lobe of right lung in its lateral aspect entry wound measuring 2 cms x 1.3 cms. Right lung was found collapsed by the Doctor who conducted the postmortem examination. 15. Unless the accused has intended to cause the death of Govindasamy, he would not have aimed at the shoulder portion of the deceased. The enmity due to petty quarrel which just preceded, the weapon used, the seat of the injury and the depth of the injury would illustrate that the first accused had in fact intended to cause the death of Govindasamy. The question may arise as to why he has not indiscriminately attacked Govindasamy when he had not died at the spot. The ocular testimony would reveal that Govindasamy having received such a fatal injury collapsed to the ground. That might have been the reason why the accused had not aimed again on the person of Govindasamy. We find that the prosecution has established beyond reasonable doubt that the first accused attacked Govindasamy with an intention to cause his death and committed murder punishable under Section 302 IPC. 16. Coming to the role of the other accused, who faced charge under Section 302 r/w 34 IPC, we find from the evidence of P.W.1 to P.W.3 that in spite the fact that the first accused exhorted the other accused to target Govindasamy, the other accused has not minded his exhortation. But they targeted Elumalai, P.W.2. 16. Coming to the role of the other accused, who faced charge under Section 302 r/w 34 IPC, we find from the evidence of P.W.1 to P.W.3 that in spite the fact that the first accused exhorted the other accused to target Govindasamy, the other accused has not minded his exhortation. But they targeted Elumalai, P.W.2. If at all other accused had shared the common intention of first accused to liquidate only Govindasamy, the other accused also would have pounced on Govindasamy and would not have directed their ire towards Elumalai. 17. Therefore, we find that A2 to A4 had not shared the common intention to murder Govindasamy, as rightly submitted by the learned Senior Counsel for the third and fourth accused. Therefore, the charge under Section 302 r/w 34 IPC stands not proved as against A2 to A4. 18. P.W.1 to P.W.3 have categorically deposed that A2 to A4 armed with knife, attacked Elumalai and caused injury on the lateral portion of the chest, left cheek and lower jaw portion. A copy of the accident register, Ex.P.15 reflects the nature of injuries sustained by Elumalai, P.W.2. 19. The opinion expressed by P.W.10 was marked through the investigating officer. The defence has lost an opportunity to cross examine the Doctor, who expressed his opinion found in Ex.P.33, marked through investigating officer in this case. Therefore, Ex.P.33 cannot be relied upon by this Court. 20. But considering the weapon of offence, the seat of injury and the depth noted down by Dr.Senkathir Selvan, P.W.10, who treated P.W.2, we find that A2 to A4 had aimed the head and chest of P.W.2, with a common intention to cause the death of Elumalai, P.W.2. Of course, the injury found on the chest of Elumalai was caused by the second accused. We find that the other accused had followed the second accused and attempted on the face and chest of P.W.2. We find that A2 to A4 having shared the common intention made an attempt to cause the death of Elumalai and thereby they committed an offence punishable under Section 307 r/w 34 IPC. 21. There is lack of evidence to establish that the accused restrained the prosecution parties for the purpose of committing their offence. Therefore, we disagree with the findings recorded by the learned trial Judge that the accused 1 to 4 committed an offence punishable under Section 341 IPC also. 22. 21. There is lack of evidence to establish that the accused restrained the prosecution parties for the purpose of committing their offence. Therefore, we disagree with the findings recorded by the learned trial Judge that the accused 1 to 4 committed an offence punishable under Section 341 IPC also. 22. The trial Court has sentenced A2 to A4 to six years of Rigorous Imprisonment and to pay a fine of Rs.2000/-, for offence under Section 307 r/w 34 IPC. It is submitted by the learned Senior Counsel for A2, A3 and A4 that they had already undergone more than 3 years Rigorous Imprisonment. 23. Considering the nature of injuries caused by A2 to A4 and the sentence already undergone by them, we find that the interest of the justice would be best served, if we sentence A2 to A4 to the period already undergone and direct them to pay an additional fine amount of Rs.10,000/- each and to disburse the same on recovery as compensation to Elumalai, P.W.2, who sustained injury in the occurrence. 24. The appeal is therefore disposed of as here under : The conviction and sentence passed as against A1 to A4 for offence under Section 341 and the conviction and sentence passed as against A2 to A4 for offence under Section 302 r/w 34 IPC stand set aside. The conviction and sentence for offence under Section 302 IPC passed as against the first accused stands confirmed. As regards the conviction and sentence for offence under Section 307 IPC as against A2 to A4, we modify the same and convict the accused A2 to A4 for offence under Section 307 r/w 34 IPC and sentence them to the period already undergone and direct them to pay an additional fine amount of Rs.10,000/- each and to disburse the same on recovery as compensation to Elumalai, P.W.2, who sustained injury in the occurrence. The fine amount if any paid by A1 to A4 for offence under Section 341 IPC and A2 to A4 for offence under Section 302 r/w 34 IPC are directed to be refunded forthwith. The fine amount imposed by this Court on A2 to A4 is directed to be paid within four weeks from the date of receipt of a copy of this Judgment.