David Annoussamy, J.@mdashThis is an appeal by the convicted accused. Originally there were seven accused. The first accused is the maternal uncle of the accused 2 to 5. The sixth accused is an employee under the second accused, and the seventh accused is an employee under the first accused,
2. Among the prosecution party, P.W.1 is the elder sister of the deceased Muthuperuma. P.W.2, aged 13, is the daughter of P.W.1, and P.W.5 is the husband of the deceased Muthuperuma.
3. The occurrence is said to have taken place on 17th June, 1981, at about 11 A.M. at Nenmani village, 3 K M. away from Erukkankudi Outpost Police Station. The accused and the prosecution party, residents of the same village, belong to the same caste; but they are not related. The case of the prosecution as disclosed by P.W.1 would be as follows: P.W.5 has taken on lease a piece of land from one Narayanan and has sowed cucumber and avuri. A month prior to the occurrence, the cattle belonging to the sister of the first accused had grazed the cucumber plants of P.W.5 who has complained about the same to the first accused. On the day prior to the occurrence, again, the cattle of the accused party grazed in P W.5''s laud. P.W.5 again questioned the first accused about the matter. The first accused replied in an impertinent manner. A quarrel arose, and one Perumal and Muthuram pacified both. On the day of occurrence, that is to say, on 17-6-1981, P.W.5 and his wife (deceased) went to their lands. They found the first accused taking bath in the river. The first accused on seeing P.W.5 and the deceased again shouted "Look, what I shall do". But, P.W.5 and the deceased did not pay attention and went away. At about 11 A.M. when P.W 5 and the deceased were plucking avuri in the field, accused 1, 2, 3, 4, and 6 armed with velsticks and accused 5 and 7 armed with aruva''s were seen moving swiftly towards P. W.5. On noticing that, P.W.5 started running. The first accused ordered the other accused to surround and catch P.W.5. But P.W.5 escaped. After running for a distance of 3/4th of a furlong, he turned back and found the accused following him and the accused party was followed by his wife (deceased) and also by P. Ws. 1 and 2. In order to escape the dangerous attack by the accused party, he proceeded to Nallanchettipatti and returned only at 7 P.M. upon hearing the death of his wife.
4. After P.W.5 escaped, the accused were returning and then Muthuperuma pleaded with the accused that her husband should be spared. The first accused turned violent and said that she should be done away with and hit on her head with velstick and ordered the others to attack Muthuperuma. The third accused then hit on the left flank with the rear portion of the velstick while the others surrounded her. Muthuperuma fell down. The accused fled away and shortly afterwards Muthuperuma died.
5. P.W.1 who witnessed the whole occurrence proceeded straight to Erukkankudi Outpost Police Station and gave the report Ex.P1 to P.W.7, Head Constable, at 12:30 noon and also produced her bloodstained blouse and saree.
6. P.W.7 took P.W.1 along with him to Sattur Police Station, and handed over Ex.P1 and M. Os.1 and 2 to P.W.8, Sub Inspector of Police, Sattur, at 2:50 P.M. P.W.8 prepared printed first information report Ex.P8, gave a copy thereof to P.W.1 and sent the other copies to the higher police officials and the Judicial Second Class Magistrate, Sattur.
7. P.W.9, Inspector of Police, while he was at Alangulam, received telephonic message at 3:30 P.M. from the Sattur Police Station about the occurrence, reached the station at 4:30 P.M., received the first information report and went to the scene of occurrence at 5:30 P.M. He prepared the observation mahazar Ex.P9 and also the rough sketch of the scene of occurrence, Ex. P10. He conducted inquest over the dead body from 6 P.M. to 8 P.M. in the course of which he examined P. Ws.1 and 2. Ex. P11 is the inquest report.
8. As ordered by the investigating officer, P.W.3, Constable, took the dead body to the Government Hospital, Sattur where P.W.4 conducted post-mortem examination at 10 A.M. on 18-6-1981 and delivered the post-mortem certificate Ex.P3.
9. On 24-6-1981 accused l and 3 to 7 surrendered before the Judicial Second Class Magistrate, Sankarankoil, while the second accused surrendered before the Judicial First Class Magistrate, Tirunelveli.
10. On 9-7-1981 P.W.9 took custody of all the accused with the permission of the magistrate, recorded statements from them Exs.P13 to P19 and in pursuance of their voluntary confession, seized M. Os.9 to 15, that is to say, five velsticks and two aruvals. Exs.P20 to P26 are the respective mahazars for recoveries. After completing investigation, P.W.9 filed the report u/s 173 Code of Criminal Procedure to the effect that offences -as below appeared to have been committed by the accused. Accused 1 to 7 offence u/s 148 I.P.C. accused 1 to 7 offence under S 307 read with 34 I.P.C. in respect of P.W.5 ; the the third accused offence u/s 302, I.P.C. for causing the death of Muthuperuma; the first accused for causing the death of Muthuperuma along with the third accused, offence u/s 302 read with Section 34 I.P.C. and accused 2 and 4 to 7 offence u/s 302 read with Section 149 I.P.C.
11. Upon committal, charges were framed accordingly by the Sessions Judge of Ramanathapuram at Madurai. The prosecution produced evidence collected in the course of investigation consisting of the testimony of nine witnesses, 26 exhibits and 15 M. Os.
12. The accused when questioned under S 313 Code of Criminal Procedure denied any complicity with the acts alleged against them. The accused did not produce any evidence.
13. The court after perusing the evidence produced by both parties and after hearing the arguments, came to the conclusion that accused 2 and 4 to 7 were not guilty of the charges framed against them and consequently acquitted them. It also acquitted accused 1 and 3 of the offence u/s 148 I.P.C. but convicted the first accused u/s 307 read with Section 34 and u/s 302 read with Section 34 I.P.C. and sentenced him to three years R.I. and life imprisonment respectively. As far as the third accused is concerned he was convicted u/s 307 read with Section 34 I.P.C. and Section 302 I.P.C. and was sentenced to rigorous Imprisonment for three years and imprisonment for life respectively.
14. Aggrieved by the above convictions and sentences accused 1 and 3 have preferred this appeal.
15. Learned Counsel for the Appellants took us exhaustively through the evidence on record and submitted that P. Ws.l and 2, who are the eye witnesses to the occurrence, could not have witnessed the occurrence, that the first information report is not a genuine one, that there was no immediate motive for the accused to attack Muthuperuma and P.W.5. that the very presence of P.W.5 at the scene of occurrence was doubtful, that the recoveries could not be believed and that in fact the Sessions Judge himself has disbelieved the same. But, after hearing the Additional Public Prosecutor and realising that the stand taken by him was not tenable, he was satisfied with putting forth the following submissions.
16. As per the evidence of the prosecution there was no case for an offence u/s 307 read with 34 I.P.C. in respect of P.W.5, and that there is no evidence of common intention as far as the first accused is concerned with the third accused in order to convict him for the offence u/s 302 read with Section 34 I.P.C As far as the third accused is concerned, it was argued that the offence committed by him would not amount to one punishable u/s 302 I.P.C. We shall now examine these contentions.
17. Offence u/s 307 read with Section 34 I.P.C. by accused 1 and 3. The main evidence on this point is that of P.W.5. He would state that all the accused came towards him armed. Bearing in mind the dispute which took place in the morning, he got afraid and started running. Then the first accused shouted "Surround him, the fellow who is running away". P.W.5 ran. The accused followed him for about 3/4th of a furlong and then P.W.5 fully escaped from the accused. This fact does not disclose an offence u/s 307 I.P.C. For the accused to be made liable u/s 307 l.P.C, they should have done any act with such intention or knowledge and under such circumstances that, if they by that act caused death, they would be guilty of murder. Here they have not done anything which could cause death. They were only chasing P.W.5.
18. The learned Additional Public Prosecutor was fair enough to accept that the act imputed to the accused would not amount to an offence u/s 307 I.P.C. Therefore, the conviction of the accused under that section is not tenable.
19. Liability of the first accused as regards the overt act in respect of Muthuperuma. The evidence of the prosecution eye-witnesses P. Ws. 1 and 2 is that the first accused beat Muthuperuma on the head with velstick. P.W.4 who examined the dead body and conducted post-mortem found an incised wound of 1-1/2" x 1/2" bone deep present on the right perietal region 3" above the right ear. There is no reason not to accept this evidence of the prosecution and the learned Counsel for the accused has not pointed out ultimately any reason for not doing so.
20. The question arises what is the nature of the offence committed. It cannot be said that accused 1 and 3 shared any common intention to cause the death of Muthuperuma. There is no evidence to that effect. As per the version of the prosecution, the main target of the accused was P.W.5. While they were returning after P.W.5''s escape, Muthuperuma prayed them to spare her husband and then they started to attack her. Therefore, there was no possibility for them to have any common intention before Muthuperuma was attacked. In the circumstances, the first accused is answerable only for the overt act committed by him which, according to the evidence of P.W.4, consists only of a simple hurt. Therefore, the first accused would be liable only for an offence u/s 323, I.P.C.
21. Liability of the third accused in respect of Muthuperuma. The evidence of P. Ws.l and 2 is that the third accused beat Muthuperuma on the left flank with velstick. There is no reason to disbelieve their evidence which in spite of searching cross-examination, was not shattered. P.W.4 who conducted post-mortem gave the following description in respect of the injury sustained by Muthuperuma at the hand of the third accused-
A contusion of 4"XI" present obliquely on the left lateral aspect of the chest 6" below the axilla and over the 9th, 10th and 11th ribs. On dissection, blood clots seen and 9th and 10th ribs fractured. On internal examination, about two litres of fluid blood was found in the peritoneal cavity. Heart: All chambers empty. Hyoid bone intact ; Stomach ; Distended with ; inner surface pale; Liver: pale. Interior border of the right lobe ruptured. Spleen ; Soft, and completely ruptured. Greater omentum was found lacerated. Kidneys: Pale ; Small intestine ; Pale ; Bladder ; Empty ; Uterus ; Normal size ; Brain: Soft and pale.
The post-mortem which was started at 10 a.m. on 18-6-1981 was concluded at 11:30 a.m. The opinion of the doctor was that the death would have occurred 24 hours prior to autopsy and that the deceased would have died of shock and haemorrhage due to the injuries to the spleen, liver, omentum and fracture of 9th and 10th ribs. He also deposed that the internal injuries related to the external injury, namely, the contusion found by him on the left lateral aspect, that the external injury connected with the internal injuries was necessarily fatal and that death would have occurred soon after the receipt of the injury.
22. As per the ocular evidence only one blow on the left lateral aspect of the chest was given. But the evidence of the doctor was not elaborate enough. Neither the prosecution nor the defence nor the court has elicited from him how only one blow which externally caused a contusion of 4" x 1" on the left lateral aspect of the chest, has caused so many damages, namely, injuries to spleen, Iobe and omentum. More details could have been made available to know the successive impact and to ascertain fully from the doctor whether the interior damages seen on the body could have been caused by a single blow. At any rate, we have reservation as regards the rupture in the interior border of the right lobe of the liver which is situated on the right portion of the body. We would have liked to have a full medical evidence to show that such injury could have been caused by the blow inflicted on the left lateral aspect of the chest. On account of the doubt on that point whether the single blow has been the sole cause of death, we feel it difficult to convict the third accused for the offence of murder or culpable homicide. It is no be remembered that the third accused was not the only person who surrounded Muthuperuma and attacked her. Unless there is clear and convincing evidence that the only blow imputed to the third accused has caused the death, it would be difficult for us to support the conviction u/s 302, I.P.C. or even one u/s 304. I.P.C. But the evidence is sufficiently clear that the injury has caused fracture of the 9th and 10th ribs and that the third accused was armed with a velstick which is a dangerous weapon. Therefore, the offence committed by the third accused would be punishable u/s 326 I.P.C.
23. As far as the sentence is concerned, the learned Counsel for the accused would submit that the first accused has already undergone imprisonment for five months and one week, and the third accused for eight months.
24. In the result, the appeal is allowed in part. The conviction and sentence imposed upon accused 1 and 3 are set aside and instead, the first accused is found guilty of the offence u/s 323 , I.P.C. convicted thereupon and sentenced to imprisonment for the period already undergone. The third accused is found guilty of an offence u/s 326, I.P.C. convicted thereunder and sentenced to imprisonment for a period of three years. The accused are acquitted of all the remaining charges.
