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In Re: Sornavelayutham Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1977CriLJ421
AppellantIn Re: Sornavelayutham Pillai and ors.
Excerpt:
- - 2. at the outset, the learned counsel for the appellants as well as the public prosecutor expressed a doubt as to the legality of the posting of the appeal before the full bench. this, according to the learned counsel for the appellants does not clearly indicate the desire of k. he knew the accused as well as 'the deceased. he has claimed that he is related to both the accused as well as the prosecution party and that has not been challenged. we are, therefore, satisfied that p. 2. 17. on a careful consideration of the entire evidence, we are not satisfied that a-2 and a-3 shared a common intention to cause the death of the deceased. on the other hand, we agree that they took part in the attack and caused simple injuries with dangerous weapons to the deceased as well as p......p.m., at pottaloorani village and found guilty of the offences under sections 302 and 323, indian penal code (against a-1) section 302 read with sections 34, and 324, indian penal code, (against a-2) and section 302 read with section 34, indian penal code, {against a-3) and sentenced to imprisonment for life. there were four charges framed against the accused. the first against the first accused was for an offence under section 302 the second against a-2 and a-3 for an offence under section 302 read with section 34, the third was against a-1 for an offence under section 323 and the fourth was against a-2 for an offence under section 324, indian penal code, for causing simple hurt with dangerous weapon.4. the case of the prosecution briefly is that there was enmity between p. ws. 1 to 3.....
Judgment:
ORDER

Kailasam, J.

1. On a difference of opinion between two learned Judges of this Court, the appeal has been placed before a Full Bench on the orders of the learned Chief Justice.

2. At the outset, the learned Counsel for the appellants as well as the Public Prosecutor expressed a doubt as to the legality of the posting of the appeal before the Full Bench. Mr. Vanamamalai, the learned Counsel for the appellant pointed out that under the amended Section 392 of the Code of Criminal Procedure, the proviso to the section enables one of the Judges constituting the Bench to require the appeal to be re-heard and decided by a larger Bench of Judges. This proviso is applicable to cases that are heard under the new Code. The present appeal was pending at the time when the new Code came into force and therefore, according to Section 484 of the Code of Criminal Procedure, 1973, the appeal shall be disposed of in accordance with the provision of the Code of Criminal Procedure, 1898, which was in force immediately before the commencement of the new Code. This would imply that Section 429 of the Code of Criminal Procedure, 1898, is applicable. In Section 429 of the Code of Criminal Procedure, 1898, there is no proviso, which would enable one of the Judges to require the re-hearing of the appeal before a larger Bench of Judges, Further, the learned Counsel also referred us to the wording of the opinion of the Judge, who desired the posting of the matter before a Full Bench that he agreed with the referring order of Venkataraman, J., wherein he has directed the matter to be placed before the third Judge under Section 392 of the Code of Criminal Procedure. This, according to the learned Counsel for the appellants does not clearly indicate the desire of K.N. Mudaliyar, J., to have the matter placed before a Full Bench. It is unnecessary for us to go into the question raised for the learned Chief Justice, after consideration of the entire matter has directed the appeal to be heard by a Full Bench. The validity of the order of the learned Chief Justice cannot be questioned for under Rule 6 of the Appellate Side Rules, High Court, Madras, notwithstanding anything contained in the rules the Chief Justice may direct that any application, petition, suit appeal or reference shall be heard by a Full Bench as denned in these rules. The order of the learned Chief Justice puts an end to the doubts that are expressed at the bar. There could be no valid objection to the Full Bench dealing with the appeal.

Kailasam, J.

3. Three accused the father and his two sons were tried by the learned Sessions Judge of Tirunelveli for the offence of causing the death of one Arumugham Pillai on the 29th of July, 1972, at about 3 P.M., at Pottaloorani village and found guilty of the offences under Sections 302 and 323, Indian Penal Code (against A-1) Section 302 read with Sections 34, and 324, Indian Penal Code, (against A-2) and Section 302 read with Section 34, Indian Penal Code, {against A-3) and sentenced to imprisonment for life. There were four charges framed against the accused. The first against the first accused was for an offence under Section 302 the second against A-2 and A-3 for an offence under Section 302 read with Section 34, the third was against A-1 for an offence under Section 323 and the fourth was against A-2 for an offence under Section 324, Indian Penal Code, for causing simple hurt with dangerous weapon.

4. The case of the prosecution briefly is that there was enmity between P. Ws. 1 to 3 and the deceased on the one side, and Accused 1 to 3 on the other, due to some trouble over the draining of sullage water. About 4 1/2 months before the occurrence, A-1, his wife, Pechi Ammal and their daughter Anna Lakshmi and A-3 beat P.W. 3 and threw her in the gutter. P.W. 3 preferred a Police complaint and the 4 persons were proceeded with in a Criminal Court and fined. Subsequently, P.W. 3 gave lawyer's notice against the accused threatening to take legal action for recovery of damages for defamation against her. Because of this dispute there was enmity between them. The mother of A-2 wrote to her son who was in Police Service in Bhopal, complaining about the conduct of P.W. 3 and A. 2 wrote back to the first accused and his wife stating that he would come and attend to the matter. The second accused arrived at Pottalurani Village on 28-7-1972, a day before the occurrence. A-1, A-2 and A-3 went to the house of P.W. 1 at about 10. 30 p.m., in the night. They questioned P.W. 1 how he dared to send a notice for defamation and threatened that the accused will not leave P.W. 1 without cutting him. P.W. 6, who was present, talked to the accused and sent them home.

5. On the next morning P.W. 1 (whose son-in-law, the deceased, who had married P.W. 3 and who was in Tuticorin) proceeded to Tuticorin to make a report about the occurrence on 28-7-1972. P.W. l and the deceased returned from Tuticorin by 2.00 P.M. by bus. They got down at the junction of Tirunelveli-Tuticorin road near Pottaloorani village. Their village was about seven furlongs from the road junction. When they got down from the bus A-3, P.W. 2 and one Perumal Pillai were standing near the road junction. On seeing A-3, the deceased questioned him as to why he came to attack P.W. 1, the previous night and asked him to come to the village, so that the matter could be talked over. In the evidence, P.W. 1 would state that A-3 told the deceased 'come to the village, we will kill him' and so saying he started towards the village.

6. A little later, P.W. 1, P.W. 2 one Perumal Pillai and the deceased proceeded northwards towards their village. After proceeding for about 3 1/2 furlongs, they turned north east and took the shortcut to their houses at Pottaloorani village. Perumal Pillai took a different route. On proceeding about 3/4th furlong. A-1, A-2 and A-3 who were hiding themselves in the punja land belonging to P.W. 6, came towards P.W. l and the deceased. A-1 had M.O. 2 lathi in his hand and a bitchuva knife. M.O. 1 in his waist. A-2 had a Veettaruvaland A-3 had a pen knife, A-1 immediately attacked P.W. 1 with the lathi stick on the head and the left flank. The deceased interfered. The deceased obstructed and A-1 hit the deceased on the head with the lathi stick. After receiving the blow, the deceased snatched M.O. 1 from A-1 and beat A-1 on the head. At that time, the stick broke at the tip and fell down. A-2 cut on the head of the deceased with the vettaruval, which he had in his hand. P.W. 1 tried to stop it. At that time A-2 cut P.W. 1 on his head and on the right palm. A-1 took out the knife and stabbed the deceased on the right and left chest. On receiving the two stabs, the deceased shouted that he had been stabbed and ran a short distance to the south and fell down. P.W. 1, who started running towards south had his dhothi caught in the thorny bush and he discarded his dhothi, tied his towel and ran towards the south. At that time, he saw A-3 stabbing the deceased with the pen knife, and P.W. 2 crying 'don't stab, don't stab'. The deceased died on the spot. The accused ran away towards north west.

7. P.W. 1 immediately proceeded to the Village Munsif, P.W. 7 who was living at Ellanaickenpatti. The residence of the Village Munsif is about one mile from the scene of occurrence. On hearing the incident from P.W. 1, P.W. 7 proceeded to the spot. There, the village Munsif took down the complaint given by P.W. 1. The complaint was read over to P.W. 1 who accepted it as correct and signed it. A report was sent by the Village Munsif through his Thalayari to the Pudukottai Police Station. P.W. 1 also went to the Police Station, from there, P.W. 1 was sent to the Tuticorin Government Hospital and was examined there by the Circle Inspector at 10.30 P. M that night.

8. P W. 2 was working in T.T.A. Middle School till 1-6-1972. He retired and afterwards continued in the same post. He knew the accused as well as 'the deceased. After finishing his work in the school, he came from Andiapuram Nellur by walk on the Tirunelveli-Tuticorira Road and was waiting for some time under a tree. He saw A-3 and Perumal Pillai standing. After 5 minutes, he saw P.W. 1 and the deceased alighting from the bus. The witness would state that on alighting from the bus, the deceased questioned A-3 as to why he went to the house of P.W. 1 and spoke in insulting language. There was a wordy altercation between A-3 and the deceased and the witness suggested that this matter may be settled amicably in the village. As to the incident proper, P.W. 2 gives a similar version as that of P.W. 1.

9. The Village Munsif, after hearing about the incident from P.W. 1 at 4.00 P.M., proceeded to the spot and there recorded the first information report at about 5.00 P.M. He sent the injured P.W. 1 to the Police Station and he stayed at the spot. The First Information Report was received at the Police Station at 8.30 P.M., and the Sub-Inspector came to the spot at 11.15 P.M. Soon after, the Circle Inspector also came and he conducted the inquest from 1.00 A.M. to 4.00 A.M. The Circle Inspector arrested A-1 and on his information recovered M.O. 1, knife, which was found to have been blood stained.

10. After investigation the Police filed the charge sheet. A-2, who had taken leave from Bhopal was subsequently arrested at Bhopal on 26-10-1972. A-3 surrendered on 1-8-1972 before the Sub-Magistrate, Tuticorin.

11. The body of the deceased was produced before the Doctor, P.W. 4. He conducted the post-mortem on the dead body and gave the Post-Mortem certificate Ex. P-2. He found on him the following four injuries:

1. Incised wound 2 1/2' X 3/4' in the left parietal region of scalp close to middle, bone deep. On dissection no fracture of the skull.

2. Punctured wound 1' X 1/2' right side of back along medial margin of right scapula. On dissection, 1' deep echymosis in the underlying tissues seen.

3. Punctured wound 1' X 3/4' just below right nipple 1' lateral to right nipple. On dissection, echymosis seen in underlying tissues. There is a punctured wound in the fourth right intercostal space corresponding to the external wound. There is a punctured penetrating wound on right middle lobe of lung 1' in diameter, depth 2'.

4. Punctured wound l' X l/2' in diameter 3' above the left nipple. On dis-section, echymosis in the underlying tissues. There is a puncured wound in the third left intercoastal space corresponding to the external wound. There is a punctured penetrating wound on the anterior surface of left lung. Upper lobe 1' X 1/2' X 1 1/2' depth extending on to the heart anterior surface entering right ventricular cavity of the heart.

12. The Doctor was of the view that injuries Nos. 3 and 4 were individual necessarily fatal and injuries Nos. 1 and 2 were simple. He also examined A-1 at 9 A.M. on 31-7-1972 and found on him a linear incised wound in the scalp in the centre 1 1/2' X 1/2' X 1/4'.

13. P.W. 1 was examined by one Dr. Balasubramaniam, who gave the wound certificate, Ex. P-4. P.W. 1 had 4 injuries (1) on incised wound 2' X 1/4' scalp deep on the front of forehead region, (2) incised wound 2 1/2' X 1/4' scalp deep on the back of the right side of scalp (3) incised wound on the ball of right thumb 2' X 1/4' muscle deep, and (4) a diffused contusion in left chest. All the injuries were simple in nature.

14. The opinion of the Doctor is that injuries Nos. 3 and 4 on the deceased are necessarily fatal as they have pierced into the lung and heart. There could, therefore, be no doubt that, whoever caused these two injuries, would be guilty of murder. The evidence of the eye witnesses. P. Ws. 1 and 2 is uniform that it was the first accused that caused these two injuries. We have been taken through the evidence of P. Ws. 1 and 2 and we see no grounds for rejecting their testimony so far as the part played by A-1 is concerned.

15. P.W. 2 is a Teacher and is an independent witness. He has claimed that he is related to both the accused as well as the prosecution party and that has not been challenged. We find that his evidence is unbiased, for P.W. 1's statement that the third accused threatened the deceased with murder on his arrival at the village and the subsequent testimony of P.W. 1 that the accused were lying in wait, are not supported by P.W. 2, According to P.W. 2, there was a wordy quarrel between the deceased and the third accused. He does not say that the three accused were lying in wait. We find the evidence of P.W. 2 thoroughly disinterested and quite acceptable. He had no axe to grind. We see no reason for rejecting his testimony. It may also be noted that the first information report, which is a detailed document, does not mention about A-3 threatening the deceased with murder on the deceased arriving at the village or the three accused lying in wait at the place of the incident. We are, therefore, satisfied that P.W. 2's evidence is convincing and has to be accepted. Regarding the part attributed to A-1, we accept the testimony of P.W. 1 and P.W. 2 two witnesses.

16. The question arises as to whether A-2 and A-3 took part in the incident and if so, whether they shared the common intention along with the first accused to cause the death of the deceased. As already pointed out, the attempt of the prosecution to show that there was a pre-conceived plan to cause the death of the deceased, cannot be accepted, for A-3's alleged threat to kill the deceased and that three accused lying in wait is not substantiated either by P.W. 2, or by the earlier statement in Ex. P-1. According to the sequence given in the prosecution, the attack was started by A-1 with the lathi stick and then the deceased snatched the stick and started retaliating. The stick broke and thereafter A-2 cut the deceased with an aruval and when P.W. 1 prevented it, A-2 cut P.W. 1 on his head and on the right palm. It is stated that after A-1 inflicted two stab injuries on the left and right chest of the deceased and after the deceased fell down. A-3 went and stabbed the deceased with a pen knife. Apart from the two fatal injuries found on the deceased which we have referred to already, the two other injuries found on the deceased are an incised wound 2 1/2' X 3/4' of the left parietal region of scalp close to middle, bone deep. On dissection there was no fracture to the skull. This injury is attributed to A-2 by the use of an aruval. The other injury is injury No. 2, which is attributed to A-3, which is a punctured' wound 1' X 1/2' on the right side of back along medial margin of right scapula. These two injuries are simple and could have been caused by a stick. The prosecution witnesses 1 and 2 state that a knife injury was caused by A-3, which may correspond to Injury No. 2.

17. On a careful consideration of the entire evidence, we are not satisfied that A-2 and A-3 shared a common intention to cause the death of the deceased. On the other hand, we agree that they took part in the attack and caused simple injuries with dangerous weapons to the deceased as well as P.W. 1 and they would be guilty of an offence under Section 324, Indian Penal Code, for the injuries they caused to the deceased, A-1 will be guilty of an offence under Section 324, Indian Penal Code for causing hurt to P.W. 1 and the sentence of 2 years rigorous imprisonment confirmed. Regarding the injuries caused to the deceased, A-2 and A-3 will be sentenced under Section 324, Indian Penal Code to rigorous imprisonment for three years. So far as injury to P.W. 1 is concerned the conviction of A-1 and A-2 under Section 323 and Section 324, Indian Penal Code is confirmed.

18. In the result, we confirm the conviction under Section 302, Indian Penal Code, and the sentence of imprisonment for life imposed on A-1. A-1's conviction under Section 323, Indian Penal Code and the sentence of rigorous imprisonment for one year is also confirmed, but the sentences to run concurrently. Regarding A-2 and A-3, they are acquitted of the offence under Section 302, Indian Penal Code, read with Section 34, Indian Penal Code, but instead found guilty under Section 324, Indian Penal Code, and they are sentenced to rigorous imprisonment for a period of three years. The sentences imposed on A-2 will run concurrently.

19. With these modifications, the Criminal Appeal is dismissed.


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