(Prayer: Appeals are filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the Principal Sessions Judge, Tiruchirappalli, in S.C.No.63 of 2014 dated 10.07.2015.)
S. Nagamuthu, J.
1. The appellants in both the appeals are the accused 1 to 4 in S.C.No.63/2014 on the file of the Principal Sessions Judge, Tiruchirappalli. They stood charged for the offences under Sections 341, 302 r/w 34 IPC. By judgment, dated 10.07.2015, the trial Court convicted the accused under the both the charges and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for six months for the offence under Section 302 r/w 34 IPC and to undergo simple imprisonment for one month each for offence under Section 341 IPC. Challenging the said conviction and sentence, the appellants are before this Court with these appeals.
2. The case of the prosecution in brief is as follows:
The deceased in this case was one Mr.Sangili, aged 70 years. He was residing in his own house at Vellalar Street, Amur in Trichy District. P.Ws.1 and 2 are his sons. P.W.1 was residing in a different portion of the same house with his wife. P.W.2 was residing in yet another portion of the house with his wife (P.W.6). All these accused also hail from the same village and they were residing just opposite to the house of the deceased. P.W.1 was an office bearer of a political party.
2.1. In the Panchayat election held in the year 2006, for the post of Village Panchayat Board President, P.W.1 and the 2nd accused contested. P.W.1 won the election. Because of the defeat, the 2nd accused along with the other accused developed ill feeling against the family of the deceased. Again, in the panchayat election held in the year 2011, P.W.1 again contested. This time, the first accused contested against him and won the election. From that time onwards, there was a very strong enmity between the two families. This is stated to be the motive for the occurrence.
2.2. On 13.12.2013, around 7 p.m., it is alleged that all the four accused came to the house of the deceased. P.Ws.1 and 2 had gone to a Temple at Musiri. P.W.6 - the wife of P.W.2 was in the house. Since all the four accused came there menacingly, P.W.6 informed P.W.1 over phone about the same. The deceased was also in the Temple then. P.W.1 informed the same to P.W.2 and the deceased. Immediately, the deceased rushed to his house. P.Ws.1 and 2 followed him. Around 7 p.m., when the deceased went to his house, these four accused came there. The accused 1 and 2 were armed with one aruval each and the accused 3 and 4 were armed with one crow bar each. They attacked the deceased. P.Ws.1, 2 and others intercepted and saved the deceased. Then, all the four accused went away with the weapons.
2.3. Thereafter, P.Ws.1 and 2 and the deceased went to Trichy Main Road with a view to go to Vathalai Police Station to make a complaint about the occurrence. When they were passing through the Agraharam at Amur Village, it is alleged that again, all the four accused came to the said place. This time also, the accused 1 and 2 were armed with one aruval each and accused 3 and 4 were armed with one crow bar each. On reaching the deceased, the first accused gave a single blow with an aruval on his right shoulder. The 2nd accused inflicted an injury on the right knee of the deceased with aruval. The third accused attacked the deceased with crow bar below the knee. The 4th accused attacked the deceased with crow bar on his right thigh. Thus, each one accused inflicted one blow. Then, all the four accused went away from the scene of occurrence with the weapons.
2.4. P.Ws.1 and 2, took the deceased to K.M.C. Hospital, which is a private hospital at Trichy at 9.15 p.m. on 13.12.2013. P.W.10 Dr.Sivamani examined him. The deceased was then conscious. He told that four persons attacked him with aruval and crow bar. P.W.10 admitted him as inpatient. He found the following injuries on him:
1. lacerated injury measuring 2x 1 x 1 cm on the upper arm.
2. lacerated injury measuring 6x2x1 cm on both his knees.
3. A stab injury on the right leg above the foot.
4. Lacerated injury on the right thigh.
On further examination, with an aid of an x-ray, he found that there was a fracture of Tibia and Fibula on the right leg of the deceased. Similarly, on the left leg, the Patella was found fractured. P.W.10 decided to do surgery.
2.5. On 14.12.2013, at 4 p.m., surgery was conducted on the deceased. After the surgery was over around 6.30 p.m., the deceased had breathing trouble. His pulse rate came down to 90/60. Thereafter, P.W.10 rushed him to the Intensive Care Unit, where artificial breathing was given. ECG was also taken. The breating trouble was aggravated. Therefore, the deceased was put on ventilator to intubate. Despite these efforts of the Doctor, at 8.15 p.m., on 14.12.2013, the deceased died. P.W.10 certified that the death of the deceased was due to sudden unexpected Cardio Respiratory failure. Ex.P4 is the Accident Register. Ex.P5 is the treatment record and Ex.P6 is the death intimation. In Ex.P5, he mentioned that the deceased had acute mio cardial infarction (ACS) and the death was due to the Cardio Respiratory arrest.
2.6. When the deceased was undergoing treatment in the KMC hospital, on receiving the intimation from the hospital, P.W.20 the then Sub Inspector of Police, went to the hospital and visited the deceased. The deceased was conscious. He made an oral statement to P.W.20. P.W.20 recorded the same (vide Ex.P23). On returning to the police station, at 6 a.m., on 14.12.2013 she registered a case in Crime No.233/13 under Sections 294(b), 341 and 307 IPC. Ex.P24 is the FIR. She forwarded both the documents to Court.
2.7. P.W.21 took up the case for investigation. He went to the place of occurrence at 7.00 a.m., on 14.12.2013 and prepared an observation mahazar and a rough sketch in the presence of witnesses. He recovered the bloodstained earth and sample earth from the place of occurrence under a mahazar. He examined P.Ws.1 to 4 and few more witnesses and recorded their statements. He went to the hospital and recorded the statement of the deceased. The deceased was still conscious. Then, he recovered the bloodstained clothes from the deceased.
2.8. On the same day, at 2.30 p.m. he arrested the accused 1 to 3 at Mukkombu in the present of witnesses. On such arrest, the 2nd accused made a voluntary confession, in which, he disclosed the place, where he had hidden an aruval. In pursuance of the same, he took the police and witnesses to the place, where he had hidden two aruvals and two crow bars. In pursuance of the same, he took the police and witnesses to the place of hide out and produced M.Os.1 to 4. P.W.21 recovered the same under a mahazar. Then, on returning to the police station, he forwarded these three accused to Court for judicial remand.
2.9. While so, the deceased died at 8.15 p.m. on 14.12.2013. Therefore, he altered the case into one under Section 302 IPC. On 15.12.2013, at 6.00 a.m., he conducted inquest on the body of the deceased and forwarded the same for postmortem. P.W.11 Dr.Renuga Devi conducted autopsy on the body of the deceased on 15.12.2013 at 10.15 a.m. She found the following injuries:
1. An oblique incised wound, 3 cm x 0.5 cm x muscle deep on the outer aspect of lower third of right arm.
2. A transverse incised wound 6 cm x 1 cm x bone deep on the front of left knee, o/e cut fracture of left knee bone present.
3. Lacerated wounds: on the front of lower third of right lef, 4 cm x 3 cm x exposing the underlying bone, front of left great toe, 1.5 cm x 0.5 cm x muscle deep.
4. A transverse sutured wound, 6 cm in length on the front of right knee. On removal of the sutures, edges are regular, 2 cm breadth and bone deep. O/E cut fracture of right knee bone present.
5. Two vertical sutured wounds, 5 cm 3.5 cm in length respectively on the front of upper third of right lef. On removal of the sutures, edges are regular, 2 cm breadth and bone deep. O/E fracture shaft of right tibia bone persent, stabilised with two white metal screws with white metal rod surgical treatment.
6. On oblique sutured wound 2 cm in length on the front of lower third of right lef. On removal of the sutures, edges are regular, 1 cm breadth and bone deep. O/E two white metal screws with white metal rod in situ surgical treatment. The mentioned wounds are antemortem. No other external, internal or bony wound.
Ex.P8 is the postmortem certificate. He gave opinion that the injuries found on the body of the deceased could have been caused by aruvals and crow bars. He further opined that the death of the deceased was due to shock and hemorrhage due to multiple wounds.
3. P.W.21 examined the Doctor and collected the medical records. On 17.12.2013, the first accused surrendered before the Court. On 26.12.2013, he took police custody of the first accused. While in custody, he made a voluntary confession, in which, he disclosed the place, where he had hidden a white colour half hand shirt. In pursuance of the same, he took the police and witnesses to the place of hide out and produced the shirt. On returning to the police station, he forwarded the accused to the Court for judicial remand and handed over the material objects also to the Court. At his request, the material objects were sent for chemical examination. The report revealed that there was human bloodstains on all the material objects, except, the sample earth from the place of occurrence. On completing the investigation, he laid chargesheet against the accused.
3.1. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. In order to prove the case, on the side of the prosecution, as many as 21 witnesses were examined, 32 documents were exhibited and 11 material objects were marked. Out of the said witnesses, P.Ws.1 to 4 have stated that they witnessed both the occurrence, ie., the occurrence at 7 p.m., in front of the house of the deceased and the occurrence at 7.45 p.m. in the Agraharam street. They have also spoken about the individual overt acts against all the accused. P.W.1 further stated that he took the deceased to the hospital. He has further spoken about the complaint made by the deceased to the police. P.W.5 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.6 is the wife of P.W.2 has stated that these accused came to her house in a menacing manner and therefore, she informed P.W.1 about the same. She has further spoken about the occurrence at 7.00 p.m. in the presence of her house. P.W.7 has spoken about the earlier occurrence at 5.45 p.m. on 13.12.2013, which took place in front of the deceased, when P.W.6 was at her house. It was only these accused, P.W.6 informed over phone. P.W.8 has spoken about the preparation of observation mahazar and rough sketch and the recovery of the material objects from the place of occurrence. P.W.9 has spoken about the recovery of the bloodstained clothes from the deceased by P.W.21 on 14.12.2013.
3.2. P.W.10 Dr.Sivamani has spoken about the fact that on 13.12.2013 at 9.15 p.m., the deceased was brought to him. He was conscious and he told that he was attacked by four known persons with aruval and crow bar. He has further spoken about the injuries found on the body of the deceased and the treatment given. He has further stated that the death of the deceased was due to Cardio respiratory arrest. He has further stated that the deceased was suffering from myocardial infarction. P.W.11 has spoken about the postmortem conducted and final opinion regarding the cause of death. According to this witness, the death was due to shock and hemorrhage, due to multiple wounds found on the body of the deceased. P.W.12 an employee of the Tamil Nadu Electricity Board has stated that at the place of occurrence, on the day of occurrence, there was enough light and there was no electricity failure. P.W.13 the Head Clerk of the jurisdictional Magistrate has stated that he forwarded the material objects to the forensic lab for examination as directed by the learned Magistrate. P.W.14 also spoken about the motive and about the occurrence at 5.45 p.m. as well as at 7.00 p.m. P.W.15 has spoken about the arrest of the accused 2 to 4, the disclosure statement and the consequential recovery of material objects. P.W.16 has spoken about the arrest of the accused 2 to 4 and confession made and the recoveries of material objects. P.W.17 has spoken about the arrest of the first accused and the consequential recovery of material objects. P.W.18 a Head Constable has spoken about the fact that he handed over the altered FIR to the Court of Judicial Magistrate. P.W.19 has spoken about the fact that he handed over the dead body to the Doctor for postmortem by P.W.21. P.W.20 has spoken about the registration of the case on the complaint of the deceased and P.W.21 has spoken about the investigation done and the final report filed.
4. When the above incriminating materials were put to the accused, they denied the same as false. However, did not choose to examine any witnesses nor marked any documents on their side. Their defence was a total denial. According to them, due to the previous motive, they have been falsely implicated in the case. Having considered all the above, the trial Court convicted these accused as detailed in the first paragraph of this judgment. Aggrieved over the same, the appellants are before this Court with these appeals.
5. We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondents and we have also perused the records.
6. This is a case based on eye witness account. According to the eye witnesses, the family of the deceased and that of the accused were in logger heads on account of the election motive. Even the accused have not chosen to dispute the said longstanding enmity between the families. But, only from and out of the same motive alone, we cannot rush to the conclusion that these accused were responsible for the death of the deceased.
7. Now, turning to the actual occurrence. According to the case of the prosecution, around 5.45 p.m., on the date of occurrence, these accused have come to the house of the deceased. At that time, P.W.1 and the deceased were in the Vinayagar Temple at Musiri. P.W.6 wife of P.W.2 informed the same to P.W.1. But before P.W.1 and the deceased returning home, the accused ran away from the house. This fact has been spoken by P.W.6 as well as by P.W.14.
8. After the arrival of the deceased to his house, at 7.00 p.m., according to the eye witness account, all these four accused came to the house of the deceased. The accused 1 and 2 were armed with one aruval each and accused 3 and 4 were armed with crow bar each. It is the consistent evidence of all the witnesses that they attacked the deceased. But P.W.1 has categorically admitted during cross examination that in that occurrence, the deceased did not sustain any injury at all. Because the others intercepted, the accused again went away from the place of occurrence. According to the further eyewitness account, P.Ws.1 and 2 and the deceased were proceeding to Trichy Main Road to go to Vathalai Police Station to make a complaint, when they were passing through Agraharam street, these accused again appeared there. This time also, the accused 1 and 2 were armed with one aruval each and the accused 3 and 4 were armed with one crow bar each. It is alleged that the first accused inflicted an injury with aruval on the right shoulder of the deceased. He did not cause any more injury on the deceased. Then, A2 inflicted a cut injury with aruval on the left knee. He did not cause any more injury. The 3rd accused stamped the deceased with crow bar on the right knee. He did not cause any more injury and the fourth accused attacked the deceased with crow bar on the right thigh. He did not cause any more injury. Then all the four accused ran away from the scene of occurrence.
9. The learned senior counsel for the appellants would submit that it is too artificial that these four accused would have caused only one injury each on the deceased. It is the case that at 5.45 p.m., all these four accused came with weapons in search of the deceased, again they came at 7.00 p.m. in search of the deceased and attacked the deceased. In the third occurrence also, it is stated that these accused attacked the deceased. According to the learned senior counsel for the appellants, had it been true that the accused party were searching for the deceased to attack, that too on three occasions, they would not have left the place by causing one blow each. Though attractive, we find no force at all in the said argument. From and out of the fact that these accused had cause one blow each, we can only gather that these accused would not have had any intention to do away with the deceased. But, simply because, one accused caused one injury, he cannot be termed as an artificial evidence so as to doubt the credibility of these eyewitnesses. Though these eyewitnesses were cross examined at length, we find nothing on record to create even a slightest doubt about their credibility.
10. The learned Additional Public Prosecutor would submit that the deceased had made oral dying declarations, on two occasions. The first statement was made by the deceased to P.W.10 Dr.Sivamani at 9.15 p.m. According to the said witness, the deceased was fully conscious. At that time, he told the Doctor that he was attacked by four known persons with aruval and crow bars. Though the Doctor had not mentioned the names of the assailants, this statement of the deceased that he was attacked by four known persons, with aruvals and crow bars would duly corroborate the eyewitness account, the learned Additional Public Prosecutor contended. The next statement was the one made by the deceased to P.W.20. P.W.20 visited the hospital and recorded the statement of the deceased (vide Ex.P3) some time before 6.00 a.m. on 14.12.2013. According to P.W.20, the deceased was fully conscious. He made a detailed statement, wherein the deceased told about the individual overt acts of all the four accused. He has stated that the accused 1 and 2 attacked him with aruval and the accused 3 and 4 attacked him with crow bar. He has also stated that each one accused inflicted one blow. In our considered view, these statements are not dying declarations falling within the scope of Section 32 of the Indian Evidence Act and therefore, the same deserve only to be eschewed from consideration. We have reasons to hold so as follows:
10.1. According to P.W.10, the deceased had suffered fractures on both knees. He proposed to conduct surgery on both these legs. Accordingly, surgery was conducted. The surgery was just completed at 6.30 p.m. At that time, the deceased developed respiratory failure. P.W.10 immediately shifted him to the Intensive Care Unit. Initially non intensive intubation was made. That did not prove successful. Since the condition of the deceased was deteriorating, as there was respiratory failure, he was put on ventilator support. Despite such artificial respiration given through ventilator, due to cardio respiratory arrest, he died at 8.15 p.m.
10.2. Now, the question is whether the deceased died either directly or indirectly due to the injuries allegedly caused by the accused. P.W.10 has further stated that when the deceased was in the hospital, he was suffering from Myocardial infarction. Since there was failure of heart, Adrenalin and Atropin drugs were given to activate the heart, which was undergoing failure. All efforts were taken to revive the function of the heart. He has further stated that the heart slowly failed and at last, there was arrest. Consequently there was respiratory arrest also. Thus, the deceased died due to the cardio respiratory arrest, which according to the Doctor, was due to myocardial infarction. The Doctor has further opined that cardio respiratory failure, due to which the deceased died, had nothing to do with the injuries. The death was due to myocardial infarction, namely, cardiac failure, which is due to a chronic heart disease. Thus, according to P.W.10, the death was due to natural cause and it had nothing to do with the injuries allegedly caused by the accused.
11. But the learned Additional Public Prosecutor would rely on the evidence of P.W.11, who conducted autopsy on the body of the deceased. He found four injuries on the body of the deceased. He opined that the death was due to shock and hemorrhage due to the multiple wounds on the body of the deceased. During cross examination, this witness has admitted that the deceased had suffered myocardial infarction. He has not ruled out the death was due to natural cause. Though this Doctor has stated that the death was due to shock and hemorrhage, due to multiple wounds, we find it difficult to accept the said opinion of P.W.11. In this case, the shock, according to P.W.10, which caused the death of the deceased was not out of pain or any other cause. It was only out of hemorrhage. But, absolutely, there is no evidence that there was excessive hemorrhage through these four injuries found on the body of the deceased. Except the two injuries on both the knees, the other injuries were superficial and very simple in nature. There is no evidence through the eyewitnesses nor through the medical records that the deceased had suffered hemorrhage. Had it been true that the deceased had suffered hemorrhage due to these injuries, certainly, he would not have been fit for surgery. The very fact that though the surgery on both the knees was not emergently required, still, the Doctor decided to go for surgery, it is inferable that the deceased had not suffered any hemorrhage and thus, he was fit for surgery. But P.W.10 had not obtained opinion from the Cardiologist in respect of the fitness of the deceased to undergo surgery to administer aneasthesia. The deceased was an old man aged 70 years. It is not as though he developed respiratory failure and also cardiac failure long after the completion of surgery. When the surgery was just completed, he developed cardiac failure. That is the reason why P.W.10 took hectic efforts to revive the heart by administering Atropin and Adrenalin injections. In view of the said factual position, we are unable to accept the opinion of P.W.11 that the death was due to shock and hemorrhage due to multiple wounds. We find reasons to accept the opinion of P.W.10, who has stated that the deceased died due to natural cause and due to myocardial infarction.
12. Looking at the same from a different legal angle, when there are two opinions equally possible, we are bound to act upon the opinion, which favours the accused. Thus, we hold that the death was not due to the injuries caused by the accused, but it was due to natural cause. There was no nexus established between the injuries and the cause of death.
13. Since we have held that the cause of death was natural and since we have held that there was no nexus between the cause of death and the injuries caused by the accused, the statement of the deceased, namely, Ex.P23 made to P.W.20 would not fall within the ambit of Section 32 of the Indian Evidence Act, as a dying declaration. Therefore, the same needs to be eschewed from consideration. Similarly, the other statements made by the deceased also deserve to be eschewed from consideration. If these statements made by the deceased are eschewed from consideration, we are left only with the eyewitness account. As we have already stated the eyewitness account inspires the confidence of the Court and therefore, we hold that all the accused are liable to be punished for the injuries caused by them.
14. All the four accused had dangerous weapons in their hands to attack the deceased. The deceased suffered fracture. The fact that all the four came together to the Agraharam street and attacked the deceased would give an inference that they had common intention. The said common intention is not to do away with the deceased, but to cause injuries on the deceased. They had succeeded in causing injuries. If really their intention was to kill the deceased, they would not have caused one injury each and to have run away from the scene of occurrence, without completing their task to kill the deceased. The very fact that they did not cause more than one injury would go to show that their common intention was only to voluntarily cause hurt. The hurt was grievous in nature. Therefore, all the accused are liable to be punished under Section 326 read with 34 IPC and Sections 341 IPC.
15. Now, turning to the quantum of punishment, the accused 1 and 3 are 35 years and 33 years old respectively and the accused 2 and 4 are 50 years and 55 years respectively. They do not have any bad antecedents. After the occurrence also, they were not involved in any crime. Having regard to all these mitigating as well as aggravating circumstances, we are of the view that sentencing the accused No.1 to undergo rigorous imprisonment for five years and the accused 2 to 4 to undergo rigorous imprisonment for four years would meet the ends of justice, with fine of Rs.20,000/- each, in default, to undergo rigorous imprisonment for six weeks each.
16. In the result, the criminal appeals are partly allowed in the following terms:
(a) The conviction and sentence imposed on the appellants under Sections 302 r/w 34 IPC is set aside and instead, they are convicted under Section 326 r/w 34 IPC ; and
(b) the 1st accused is sentenced to undergo rigorous imprisonment for five years, with fine of Rs.20,000/-, in default, to undergo rigorous imprisonment for six weeks; and
(c) the accused 2 to 4 are sentenced to undergo rigorous imprisonment for four years, and to pay a fine of Rs.20,000/- each, in default, to undergo rigorous imprisonment for six weeks.
(d) It is directed that the fine amount already paid shall be adjusted.
(e) On realising the said fine amount, it is directed that the entire amount of Rs.80,000/- shall be paid as compensation to the wife of the deceased. If the wife of the deceased declines or fails to receive the amount within a period of six months from the date of intimation, the said amount shall be added to the Government Exchequer.
(f) the conviction and sentence imposed on all the four accused for the offence under Section 341 is hereby confirmed.
(g) The trial Court shall take steps to secure the accused to commit them in prison to serve out the remaining period of sentence.
(h) It is directed that the sentences shall run concurrently and the period of sentence already undergone by the accused shall be given set off under Section 428 Cr.P.C.