K PALANI MOOPAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This is an appeal filed by Palani Moopan, the fourth accused in S. C. No. 64 of 1950 on the file of the Additional Sessions Judge, Coimbatore. He is a boy aged 19 years and has been convicted by the learned Additional Sessions Judge under Section 304, paragraph 2, Indian Penal Code, while acquitting him of the offence under Section 302, I.P.C., and sentenced to undergo rigorous imprisonment for ten years. There were four other accused in the case. They have all been acquitted.

(2.) The facts are briefly these. The appellant and the deceased Palani Moopan were agnates and 'pangalis.' Owing to misunderstandings over a lease of land and a manure pit there was a sudden and unexpected quarrel just at sunset time on 1st February 1950 between the five accused on one side and the deceased and P.W. 5 on the other and all the five accused are said to have fallen upon P.W. 6 and the deceased. According to the first information report, the dying declaration and the evidence of P.Ws. 1, 2, 3, 5 and 7, this appellant stabbed the deceased, in the course of the quarrel, on the right side of his abdomen with a spear. The deceased did not die at once but survived to state that it was this appellant that stabbed him thus and to give a dying declaration to that effect. He died on the next day (2nd February 1950.) The lower Court, after discussing the evidence, found the evidence not to be satisfactory as regards the other four accused and to be satisfactory regarding the offence under Section 304, paragraph 2, I.P.O., regarding this appellant, and, so convicted and sentenced him. It did not consider it fit to apply Section 562, Criminal Procedure Code to this appellant, and does not seem to have considered the applicability of Section 8 of the Borstal Schools Act.

(3.) I have perused the entire records and heard the learned Counsel for the appellant and the learned Public Prosecutor 'contra.' The learned Counsel for the appellant raised three main contentions. The first was that on much the same evidence the lower Court has acquitted the other four accused and so should have acquitted this appellant also, at least by giving him the benefit of the doubt. But, after perusing the evidence, I am of opinion that the evidence against this appellant was far more consistent and satisfactory, and, indeed, proved conclusively that it was the appellant who gave that fatal stab to the deceased, whereas the evidence regarding the other four accused was not at all consistent. I cannot accept the argument of the learned Counsel for the appellant that simply because there are some minor discrepancies in the evidence whether the beatings by the other accused preceded the stabbing by this appellant or the stabbing by this appellant preceded the beatings by the other accused, and, because of the observation of the lower Court that it was not satisfied with the evidence of some of the prosecution witnesses who implicated this appellant, but was satisfied with the evidence of other prosecution witnesses who implicated him, the appellant should be given the benefit of the doubt and acquitted. Such minor discrepancies on 'immaterial collatera' matters exist in almost every criminal case of this description. When they do not go to the root of the case, as here, and do not affect the credibility of the evidence regarding the fatal stab administered to the deceased by this appellant, there is no need to worry over much with those minor discrepancies. Nor can the learned Counsel for the appellant rely on the remarks of the lower Court regarding the credibility of some of the prosecution witnesses and attack the remarks of the lower Court regarding the reliability of the other prosecution witnesses without proving, from the original records, that the prosecution witnesses attacked by him and believed in by the lower Court are really persons unworthy of credence. This Court has got full seisin of the matter, in the appeal, and is not bound to accept every remark of the lower Court regarding the credibility or otherwise of the witnesses, though, naturally, it will not distrust a finding of fact arrived at by the lower Court which saw the witnesses and observed their demeanour. In this case, I see no reason whatever to disbelieve the evidence of P.Ws. 1, 2, 3, 5 and 7 who implicate the appellant regarding this fatal stab on the deceased with a spear. That evidence is corroborated by the statement of the deceased, who had no motive to implicate the appellant falsely in his complaint, and also by his dying declaration, and the medical evidence. That the deceased spoke to some spear injury inflicted on his son by the fifth accused is no ground for disbelieving his statement regarding this appellant. It is evident that a man attacked by five people, and fatally stabbed, and suffering terribly, may observe closely the person who stabs him, and be correct about it, while his observation of a stabbing at about the same time of another individual may be defective and inaccurate. He might have seen the fifth accused aim with his spear at his son and might have thought that his son had also been injured, whereas, the blow might have escaped the son. The important fact to remember is that the deceased had no enmity towards the appellant, and that his condition, after receiving the fatal injury, would have been so precarious that his memory cannot be expected to be precise regarding all the details he has observed about the occurrences that day. That will account for the discrepancies mentioned above.