1. This is a reference by the learned Sessions Judge of Ramanathapuram Division at Madurai convicting accused 1, 2, 3 and 4 in S. C. No. 118 of 1959 before him Under Section 302 IPC, and sentencing each of the accused to death. Originally, there were two other accused also in the case, and the charges included a charge Under Section 120-B, IPC read with Section 302 IPC against accused 1, 2, 5 and 6, and an alternative charge Under Section 302 IPC read with Section 109 IPC against accused 5 and 6. The learned Sessions Judge acquitted accused 5 and 6, and that matter is not before us.
2. This prosecution related to the murder of one Dhinakara Thayer at about 5 p.m. on 13-5-1959, in consequence of certain greatly strained feelings and of enmity between the respective parties. The evidence very clearly shows that this enmity had a political complexion, and originated in a local struggle for power between the leaders of the Forward Bloc and the Congress in this locality. During the last two General Elections in the area, as well as bye-election from Mudukulathur constituency, Dhinakara Thayer (deceased) had been tactlessly criticising the activities and personalities of the Forward Bloc leaders, the major leader of that movement in the locality being one Muthuramalinga Thevar.
In 1950, the deceased, who was a Congress man and who had suffered for his political amliation, had been given 7 acres of punja and 1 1/2 acres of nanja lands in Muthukulathur area under a Government scheme. This led to very bitter feeling between the deceased and the supporters of the Forward Bloc, and even in 1951 accused 1, 2, 4 and 6 and others are alleged to have destroyed g certain crops on this property, and the deceased filed a complaint in consequence.
A month before this occurrence (April 1959), accused 1 to accused 6 and others are alleged to-have cut away ridges in the property, and Dhinakara filed a complaint against the accused and 61i others which was actually pending at the time of this occurrence. In addition to this, there are other strands of enmity also appearing in the evidence. Accused 1 and 2 and accused 3 brother and others-are alleged to have assaulted one Sankaralingam,, Dhinakara's nephew, and a complaint was preferred about this which led to sentences of imprisonment upon certain of the accused in that case.
Dhinakara's son, Sankaralingam, had himself Been convicted of a murder in 1958, and he was undergoing a life imprisonment in consequence. Accused 4 and 6 gave evidence in that case, and accused 1 was helping the prqsecution. We would also like to state here, from our scrutiny of the record, that it appears that the deceased, Dhinakara, was himself by no means a particularly blameless or law-abiding person. In addition to the highly objectionable lampooning of political opponents, the suggestion is that he was himself associated with carrying on political vendettas by means of crimes. The evidence leaves us in no doubt that these accused had a very powerful motive of Tenmity to murder the deceased.
3. There was considerable evidence in the lower court with regard to the alleged criminal conspiracy. It was discussed by the learned Judge, who has rejected the evidence as inconclusive and insufficient to support a finding of guilt upon this charge. It is hence not necessary for us to proceed into the particulars of this aspect. We might here merely note that the suggestion of learned Counsel for the appellants is that others besides these appellants also had motives to commit a rime of this kind against the deceased Dhinakara Thevar.
That may very well be so, and the evidence contains indications that the present appellants, if we may so phrase it, do not exhaust the persons with a motive of enmity to do away with the deceased. But the question is not this. The question is whether, assuming that the appellants had such powerful motive, there is clear and credible evidence about the actual occurrence, which will be adequate to prove the guilt of the appellants upon the charge of murder.
4. The evidence is to the effect that on the afternoon of 13-5-1959 Dhinakara Thevar left Mushtakurichi for Kamuthi accompanied by Veluswami (P.W. 1) who was proceeding in that direction to see a cinema show at Kamuthi. As these persons were going along a foot-path across the fields, which is near a place known an Kothuicka-reddikalam, accused 1 to accused 4 are alleged to have rushed up from a cluster of palmyrahs nearby, behind which they had concealed themselves. Accused 1 abused the deceased and ordered him to stop, and inflicted two cuts with an aruval on the neck of the victim.
Dhinakara collapsed, and Veluswami (P.W. 1) . ran away. After he ran a little distance, P.W. 1 turned round to see what was happening, and he then saw that all the four assailants were cutting Dhinakara who had fallen on the ground. P.W. 1 then also saw Karuppiah (P.W. 3) and Muthu (P.W. 2), who were coming towards that locality from Kamuthi side, and who also apparently saw a part of the occurrence. All the four accused then ran away southwest towards konini, leaving the deceased at the spot.
The medical evidence makes it clear that the deceased sustained a number of fatal injuries, and lie must have died practically instantaneously. Veluswami (P.W. 1), Karuppiah (P.W. 3) and Muthu (P.W. 2) met each other, and P.W. 1 then proceeded to Kamuthi police station, after directing P.Ws. 2 and 3 to go to the village and inform the relatives of the victim.
5. In addition to this, there is a certain amount of circumstantial evidence. This consists of the testimonies of Perumal (P.W. 4), Guruswami (P.W. 5) and Kumarayya (P.W. 6). Perumal (P.W. 4) deposed that he saw four persons with anivals at about 3 p.m. in that locality, two of whom he recognised as accused 1 and accused 3. Guruswami (P.W. 5) and Kumarayya fP.W. 6) said that they were grazing sheep near that locality, and saw accused 1 to accused 4 coming up with aruvals and concealing themselves behind the row of palmyrahs at the spot of occurrence.
6. It is not in dispute that P.W. 1 proceeded to the police station, and that he made a first report of the occurrence (Ex. P. 1) which is a fairly clear and detailed account, and which also refers to the presence of the others and the two eye-witnesses, P.Ws. 2 and 3. We shall later note the criticisms which have been levelled against this report, but, for the time being, we would like to stress that if it was really given at 6 p.m. by P.W. 1, it did amount to as detailed and categorical an account of the crime, as we might reasonably expect.
But what is urged on behalf of the defence is that this report was given belatedly by Veluswami (P.W. 1), that the hour of 6 p.m. was entered by the Sub-Inspector (P.W. 19) deliberately, in order to cover his own delay in coming to the police station, and that P.W. 1 must have been brought from the village, after the news of the murder had spread, in order to act as an instrument for making a complaint. Hence, upon this aspect, we have two related questions to analyse. The first is whether there is any adequate reason for believing that Ex. P-l was belated, and that it was actually made much later, only at about 7.30 p.m. or 8 p.m. The second is whether there are any grounds to show that P.W. 1 did not accompany the deceased that day, and could not have been eye-witness to the occurrence, as he claims. It is true that this crime was committed in a highly factious area, and that the crime itself springs from a background of bitter political and personal enmities. Hence, it is certainly essential, in the interests of justice, that this aspect should be scrutinised carefully by us. We have also to analyse the evidence of the other eyewitnesses (P.Ws, 2 and 3), and the support afforded by the circumstantial evidence that we have already referred to.
7. (His Lordship here discussed the question whether the Sub-Inspector fabricated the hour in his first report of the occurrence and concluded that he did not do so. The judgment then proceeded :)
As regards P.W. 1, we are compelled to note that the cross-examination was not at all directed to shake the credit of this witness as an eye-witness who actually accompanied the deceased, and there is nothing in the record which would probably such an inference. It is true that there are certain differences between the first report (Ex, P-l) and P.W. 1's own testimony in court. They relate to very minor particulars, such as the exact manner in which A-1 and the others came to assault the deceased, who surrounded him first, etc. They are extremely natural discrepancies, of the kind necessarily incidental to the witnessing of a brutal crime of this character, by a helpless or terrified spectator within a period of a few minutes. We are unable to accept the criticism that, because of these discrepancies, it must necessarily follow that P.W. 1 is not a reliable witness, that he did not accompany the deceased, and that he was not an eve-witness to the occurrence. (His Lordship, after discussing the evidence, confirmed the inference that the witness accompanied the deceased and witnessed what had happened. The judgment then proceeded :)
8. As regards P, Ws. 2 and 3. we think it is .'efficient to state that their presence is testified from the internal evidence of Fx. P-1 itself, a report made shortly after the occurrence. We have carefully scrutinised the alleged grounds upon which the credibility of this evidence has been assailed, and we are unable to see any sufficient justification for the view that P.Ws. 2 and 3 are not speaking to the truth of what they saw, and that they were not eye-witnesses. On the contrary, at least as far as the cross-examination of P.W. 2 is1 concerned, it actually seems to proceed on the basis that he was an eye-witness to some extent. Where the offence itself has thus been proved by the clear and credible testimony of the three eye-witnesses, tile circumstantial evidence is not of great importance. But leaving side the evidence of P.W. 6 who stated in the lower. Court (Ex. D-12) that he had not seen accused 1 to accused 4 previously to the occurrence, we have the clear evidence of P.Ws. 4 and 5. This, if believed, would prove that accused 1 to accused 4 were concealing themselves at the spot, sometime before the deceased came there.
9. (His Lordship then discussed the medical evidence and concluded:) There can be no doubt that this was a very brutal murder, and the circumstances also render it clear beyond doubt that it; was carried out in execution of a pre-concerted plan to kill the deceased.
10. The four appellants before us have been convicted Under Section 302 IPC and the learned Sessions Judge apparently did not think it necessary to frame a charge Under Section 34 IPC But certainly he would have been well advised to have done so, in the circumstances of this particular case. Though there were as many as 10 injuries that were necessarily fatal, there were also a large number of non-fatal injuries inflicted with sharp weapons on non-vital portions of the body. As the record stands, it is quite impossible for us to fix the responsibility for the fatal injuries upon the individual accused, and it may very well be that certain alone of the four appellants, and not others, were responsible for the fatal injuries. But the locality of the offence, the circumstances of the silence, and lie prior background of enmity, all evidence a pre-concerted plan. This was essentially a case in which the principle of Section 34 IPC would1 apply to the facts. We have carefully considered whether, in the event of our confirming the convictions of these appellants, we ought to convict them Under Section 302 IPC read with Section 34 IPC and not Under Section 302 I. P. C alone. The fact that a charge was not framed by the lower Court, does not appeal to1 us to be material, and the principle, as stated by the Supreme Court in Srikantiah v. State of Mysore 1959 Mad WN Cri 24 : A.I.R. 1958 SC (572), is that an omission to frame such a charge at the trial is not material, unless it has been actually shown that prejudice was occasioned to the appellants in consequence thereof.
We must here state that, throughout, the appellants have affirmed that they are innocent; that even the prior background of enmity alleged is nod true, and that the entire case is a fabrication resulting from political faction. The suggestion is that others who had motive to do away with the deceased, were responsible for this crime, and no the appellants. That being so, we are quite unable to see how the omission to frame a charge Under Section 34 IPC should have occasioned a prejudice, and we may here pertinently observe that there was also a charge Under Section 120-B IPC against these accused though there was no conviction thereon.
The decision in : 1958CriLJ1251 refers to the previous decision of the Supreme Court in Hawalppnda Venkalu v State of Hyderabad, A.I.R. 1956 SC 171, where the same principle was affirmed, and it was laid down that the omission to add the charge Under Section 34 IPC which does not create any substantive offence by itself, was not material, unless prejudice had been occasioned.
11. As regards the guilt of the appellants, for the reasons set forth above, we hold that it hast been conclusively brought home to them beyond) any shadow or element of reasonable doubt. We have no doubt whatever that P, W. 1 did accompany the deceased that day, that P.Ws. 2 and 3 were also eye-witnesses, and that P.Ws. 4 and 5 and 6 are speaking the truth about the circumstantial evidence appearing in their depositions. Consequently, we must affirm the convictions of the appellants for the charge of murder, but we crevice them Under Section 302 IPC read with Section 34 IPC as the common intention to kill the deceased is undeniably evident from the facts on record.
12. We have considered the matter of the sentence with great care, and indeed bestowed some anxious consideration upon this aspect. Learned Counsel for the appellants urges that it would be proper to award lesser penalty alone in this case, taking into account the political background of this crime, the circumstances that have since supervened by way of restoration of peace in this locality, and the interval that has elapsed since the crime. He draws our attention to the judgment of a Bench of this Court in R. T. No. 7 of 1959 dealing with a, brutal case of murder from this very locality, which occurred practically against the same background' of factious politics, in which this Court has given several reasons for the view that the lesser penalty would be tile proper punishment to be awarded in that case.
Our attention is also drawn to Dalip Singh v. State of Punjab : 1SCR145 , Where the Supreme Court has laid down that where it is evident that some alone among the appellants might have inflicted fatal injuries, and it is impossible to ascertain who had done so, it will be a sound exercise of judicial discretion to award lesser sentence, in a case in which each is convicted for murder Under Section 302 IPC read with Section 34 IPC We adopt the principle of this decision, for the purpose of dealing with the facts before us, and we also consider that, in view of the political and factious, background of this entire area and the subsequent restoration of amity and peace in the locality, particularly between the rival groups where faction-was originally rife, it would be expedient in the interests of justice to award lesser sentence alone. Accordingly, we sentence each of the accused to-imprisonment for life, and otherwise dismiss the appeals.