THANGARAI Vs. STATE

JUDGEMENT

(1.) THE four appellants 1 to 4 in this appeal are accused 1' to 4 respectively in Sessions Case No. 106 of 1971 on the file of the. Sessions Court, Tirunelveli, the Sessions Case arose out of the murder of one Anthonipandian of Tuticorin at about 9-15 A. M. on 29-3-1971' in the Clinic (Manohar Clinic) of one Dr. Krishnamurthi. In the course of the same transaction one Karuppuswami Thevar (examined as P. W. 1 in the case) was stabbed on his back. The four accused along with one Thavidan alias Sudalai-' mani (a iuvenile) were charged for the offence of rioting armed with deadlv weapons, punishablp under Section 148 I. P. C. Accused 1 to 4 were also charged for the offence of murder under Section 302 read with Section 149 I. P. C. and the first accused was charged for attempt to murder Karuppuswami Thevar (P. W. 1) punishable under Section 307 IPC All the accused pleaded not euiltv to all the charges; but the Sessions Judge found them guilty in respect of all three charges and convicted them-Accused 1 to 4 were each sentenced to imprisonment for life for the conviction under Section 302 read with Section 149 I. P- C. and to rigorous imprisonment for two years for the conviction under Section 148 I. P. C and the first accused was also sentenced to five vears' R. L for the conviction under Section 307 IPC all the sentences of imprisonment imposed were directed to run concurrently.

(2.) THE facts of the case may be briefly stated. The deceased. Anthonipandian was keeping a jutka for his use. whenever he went out, since his left lea had been cut lone aao. On the dav of the occurrence, he had some work (some prohibition case) with his Advocate at Tuti-corin. Thiru Mariappaswami (P. W. 7 ). The deceased, alone with P. W- 1 went to the lawyer's place at about 8-15 A. M. on 29-3-1961 and, after finishing his work, the deceased and P. W. 1 were returning back in the Jutka from east towards west alone the North Car Street. When they were coming near the brass vessels shop (at about 9. 15 A. M.) which is situate about 30 feet east of Manohar Clinic in that street, accused 1 to 4 suddenly appeared at the scene along, with the iuvenile accused, Thavidan and thev obstructed the iutka. It is said that the iuvenile was armed with a vel-stick and the first accused was havine a bichuva while accused 2 to 4 each had an aruval. At that time the fourth shouted savine "original in Tamil omitted Ed. " Out of fear, the deceased jumped out from the front portion of the iutka while P-W. 1 lumped out from the back portion of the same. Both the deceased and P. W. 1 ran towards Manohar Clinic. Accused 1 to 4 and the iuvenile accused chased them inside the Clinic. P. W 1 reached the verandah of the Clinic first and subseauently the deceased also followed P. W. 1 and entered into the western room of the verandah. When P. W-1 reached the verandah, the first accused stabbed him on his back with the bichuva (M. O. 4 ). At that time, the deceased peeped out from the doorway of the dressine-room in the Clinic. The iuvenile accused at once cut on the forehead of the deceased with the knife attached to the vel-stick, the fourth accused cut on the neck of the deceased with aruval, the third accused cut on the left hand of the deceased with aruval. the second accused cut on the chest of the deceased with aruval and the first accused cut the deceased repeatedlv with the bichuva knife-P. W. 1, out of fear and panic, came out of the Clinir and ran towards east, after having received the stab iniurv from the first accused. The deceased who sustained several injuries died on the spot: and after thus murdering the deceased by inflicting numerous iniuries, accused 1 to 4 and the iuvenile accused came out of the Clinic and disappeared. P. W. 1, who came out of the Clinic after sustaining the stab injury, engaged a rickshaw and drove towards the hospital. On the way to the hospital, P. W. I saw his brother P. W. 10 Lakshmanan, and conveyed to him the news of the occurrence. P. W. 10 asked P. W. 1 to rush to the hosdital, and after conveying to the police on the phone the news of the oocurrence received from P. W. 1, P. W. 10 ioined P. W 1 in the hospital. The case for the prosecution is that P. W2 Francis, P. W. 3 Ponpandi and P. W. 4 Subbiah Thevar are the eve-witnesses who were present at the scene at the time of the occurrence and thev actually witnessed the stabbins of P. W. 1 by the first accused with the bichuva and the murderous assault on the deceased by all the accused alone with the iuvenile inflicting numerous iniuries. P. W. 16. the Sub Inspector of Police who received the news of the occurrence on the phone from P. W. 10, went to the hospital at about 10 A. M. , and Exhibit P. 1, the first information report was eiven by P. W. 1. It was also attested by P. W. 10 the brother of P. W. 1. The Inspector of Police (P-W. 17) was at once informed about the occurrence and the Inspector reached the scene of occurrence at 11 A. M. and conducted the inquest from 11-30 A. M. to 1-30 P. M. At the inauest. the Inspector of Police examined P W. 8 the Doctor of Manohar Clinic, P. W. 9, the Nurse, P. W. 11 the wife of the deceased and the son of the deceased. After completion of the inauest, the dead body was sent to the hospital. P. W. 6 the Civil Assistant Surgeon, conducted the post-mortem examination on the dead bodv of Anthoninandian at 3-50 P- M. on the same dav, viz. , 29-3-1971 and Exhibit P. 3, the post-mortem certificate, contains the details of all the iniuries and the opinion of the Doctor. The Doctor was clearlv of the opinion that the deceased died of shock and haemorrhage due to multiple iniuries. with special reference to the fatal iniuries Nos. 8 and 10 found on the neck. The Doctor was of the view that each of the injuries Nos. 3 and 10 was necessarily fatal and that the death was due to all the injuries inflicted. He was also of opinion that all the incised iniuries could have been caused by cuts with aruval or a knife like M. O. 4. (It is unnecessary to refer at this stage, to the other steas taken by P. W. 17 in the course of the investigation ). The Inspector of Police P. W. 17 thereafter, examined P. W. 1 at the hospital recovered from him, his bloodstained dhoti, the bloodstained shirt and the bloodstained underwear. P, W. 5 the woman Assistant Sureeon examined P. W. 1 and eave the wound certificate (Exhibit P. 2) to the effect that P. W. 1 had sustained an incised wound, 1" x i" x l'i" in the back. In the wound certificate, the Doctor has stated that the iniurv was erie-vous in nature and the samp could have been caused with a weapon like M. O. 4. P. Ws. 2, 7 and 10 were examined by P. W. 17 on the same day, 29-3-1971. but later. The other two eve-witnesses P. Ws. 3 and 4, thoueh thev belonged to Tuticorin and known persons were examined a lone interval after the inauest: P. W-4 was examined on 31-3-1971 and P. W. 3 was examined much later, on 64-1971.

(3.) WHILE in the hospital, a statement (Exhibit D-1) was recorded by the Sub Magistrate. Tuticorin from P. W. 1' at about 1-30 P. M on 293-1971. evidently as a dying declaration. It is necessary even at this stage, to mention that there are several vital discredancies in the version aiyen by P. W- 1 about the occurrence, in the F. I. R. and in the statement Exhibit D. 1-In Exhibit P. 1, it was stated that the first accused stabbed P. W. 1 on the back and accused 1,2. 3 and 4 along with the iuvenile, murdered the deceased by inflicting several iniuries, the first accused using a knife and accused 2 to 4 using aruvals and the iuvenile using a vel-stick. In Exhibit D. 1, P. W. 1 has stated that the fourth accused, the second accused, the first accused, one Selvarai. Mariappan and Jeeva and the iuvenile accused attacked the deceased and that the first accused stabbed P. W. 1. In more places than one, it is repeated in Ex. D. 1 that all the aforesaid seven persons participated in the murderous assault upon the deceased. So far as the third accused is concerned it is merely stated that the third accused was merelv one in that crowd. It is not stated that the third accused actually participated in the assault (no overt act was ascribed to A. 3 ).