S.B.SINHA, J. - (1.) THESE two appeals arising out of the same judgment and involving common question of law and fact were taken up for hearing together and are being disposed of by this common judgment.
(2.) THE appellants herein, Munivel (original accused no.5), Kalith (original accused no.4), Selvam @ Silvakumar (original accused no.1), Sasi @ Sasikumar (original accused no.2) and Madhu @ Madhusudanan (original accused no.3) were convicted under Section 302 read with Section 149 of the Indian Penal Code ('IPC' for short) and sentenced to undergo rigorous imprisonment for life. Accused no.2 was also convicted under Section 307 IPC and sentenced to undergo ten years rigorous imprisonment. Accused no.3 was convicted for an offence under Section 302 IPC and sentenced to undergo life imprisonment. Accused no.4 was also convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for seven years. Accused no.5 was also convicted under Section 324 IPC and sentenced to undergo three years rigorous imprisonment. All the sentences were, however, directed to run concurrently. In an appeal preferred by the aforementioned accused persons, the High Court modified the judgment of the learned trial court in the following terms: "Under those circumstances, the conviction imposed by the trial court on A-1, A-2 and A-5 or the offence under Section 302 read with 149 IPC, is perfectly correct. But a slight modification could be made as regards A-1 and A-2. In the case, A-3 has been convicted only for Section 302 IPC simplicitor. A-1 has been convicted for the offence under Section 302 read with 149 IPC. But both A-1 and A-3 have attacked the deceased and caused injury. Though the injury caused by A-1 is not fatal, it would be appropriate to convict A-1 and A-2 for the offence under Section 302 read with 34 IPC. THErefore, the conviction imposed on A-1 and A-2 is modified to the extent that they are convicted for the offence under Section 302 read with 34 IPC, instead of Section 302 read with 149 IPC and A-2's conviction for the offence under Section 307 IPC is confirmed." The High Court confirmed the judgment of conviction and sentence imposed by the trial court in respect of other offences on accused nos.3, 4 and 5 under Sections 302, 326, 324 and 302 read with Section 149 IPC respectively. Accused nos. 1, 2 and 3 preferred the special leave petition before this Court, but the same was dismissed.
(3.) MR. A.T.M. Rangaramanujam, learned senior counsel and MR. P. Ramesh, learned counsel appearing on behalf of the appellants in these appeals, raised only two contentions before us - (i) having regard to the role played by them, they cannot be said to have committed an offence under Section 302 IPC read with Section 149 IPC; and (ii) no case has been made out even for convicting them for offences under Sections 326 IPC and 307 IPC respectively. Before we advert to the merit of the matters, we may briefly notice the following facts: "(1) PW-1 -Raja and PW-2-Kannan are the sons of deceased Babu Naidu. PW-3- Venkatesan is his brother. Tmt. Balamani, who examined herself as PW-4 is the wife of the deceased. PW-5-Leela and PW-6-Gandhimathi are the daughters of the deceased. PW-7-Srinivasan. and PW-8-Panneer Selvam were the friends of the deceased. PW-10-Tmt. Pushpa is the wife of aforementioned PW-3-Venkatesan The accused nos.1 and 2 were brothers, whereas accused nos. 3 and 5 are their associates. The mother of the accused nos. 1 and 2, Jayalakshmi, was distantly related to the deceased. The family of both the parties were carrying on business of chit transactions. PW-4-Balamani joined chit transactions carried out by the said Jayalakshmi, but allegedly did not pay the amount payable therefor regularly. Further, allegedly, two other subscribers introduced by PW-4-Balamani had also not paid back the chit amount to Jayalakshmi, as a result whereof there used to be frequent quarrels between the parties." (2) It is further alleged that a proposal made for marriage of accused no. 1-Selvam with a girl failed. The relatives of the said girl came to the village for inquiring about the suitability of the accused no.1. On suspicion that certain informations were allegedly furnished by Babu Naidu, the deceased, pursuant whereto the girl's family declined to give her in marriage with Selvam, they bore grgdge against the family of the deceased. On 16.3.1994, PW-1 was in his shop. He was joined by PW-2-Kannan Both of them were proceeding to their houses at about 12.15 in the mid-night. When they reached near their houses, the accused persons accosted them with deadly weapons. Selvam allegedly shouted at PW-2-Kannan saying that in view of their conduct, the image of his family had been spoiled and so his entire family should be done away with; whereupon accused no.2-Sasi stabbed PW-2 on his abdomen as a result whereof he cried out. His intestines came out. Upon seeing the said ghastly sight, PW-1-Raja cried aloud, ran into his house and informed his parents about the said occurrence, whereupon they rushed to the scene of occurrence. Accused no.3-Madhu, allegedly, stabbed the deceased on his shoulder and right thigh. When he turned round and tried to go into the house by climbing the stairs, accused no.1 prevented him from doing so and hit him with a knife on his head. On hearing the cries, PW-3-Venkatesan, a neighbour, came out of his house along with his wife, PW-10 They saw the incident. When they came to the scene of occurrence, the accused no.4-Kalith attacked him with a knife on his hand, as a result whereof PW-3 suffered an injury on the back side of his right hand, as also in the fingers. Seeing the said assault, PW-10 shouted, whereupon accused no.5-Munivel cut the ring fingers of both her left and right hands. PVV-7-Srinivasan and PW-8-Panneer Selvam and other persons by that time arrived at the scene. The accused persons then fled away. The deceased and other 'injured persons' thereafter were taken to Virugambakkam Police Station. A First Information Report (FIR) was lodged. Thereafter, they were referred to Royapettah Hospital. A case was registered for offences under Sections 147,148, 448, 326 and 307 of the Indian Penal Code." "(3) On the basis of the said FIR, PW-19-Venkateswaran, the Inspector of Police, took up investigation and visited the scene of occurrence. He, thereafter, received the message as regard death of the said Babu Naidu, whereafter Section 302 IPC was also added in the FIR. Keeping in view the nature of injuries suffered by PW-2 a dying declaration was also recorded by a Magistrate. During the course of investigation, the accused persons were arrested and it is stated that on confession having been made by the accused nos.3 and 4, two knives marked as M.Os. 4 and 7, as well as a shirt M.O.27 were recovered from their possession. Similarly. on alleged confession made by the accused nos. 2 and 4, other weapons and knives marked as M.Os. 3, 5 and 6 were recovered. All such recoveries were made on 18.3.1994." "(4) The part played by each of the appellants herein and the extent thereof were categorically stated by all the eye-witnesses 'injured persons' viz., PWs. 2, 3, 4, 5, 6, 7, 8 and 10." "(5) As the statements of all the material witnesses are identical and corroborative of each other, we would notice hereinbelow the statements of P.W.1 only, which reads: "On 16/3/1994, at 12 O'clock in the night, I was remaining in my shop. At that time, my brother Kannan who was working under a Doctor came to me as usual to take me home along with him. Both of us were on our way home. The five accused came running with knife. Then Selvam intercepted us and said, "You have not given the chit amount to my mother; you have prevented the girl who was to be married to me; I will completely destroy all of you with your family". A-2 Sasi with the knife he was holding in his hand stabbed Kannan at the left side of his abdomen. Because of this, my elder brother's intestine has come out. I screamed out and immediately ran to our up-stair. I told my mother that, my brother was stabbed by them. At once, my father, came down from the upstair, without a shirt on him. At that time, Madhu, mechanic, hacked him at his right shoulder and right thigh. (He showed the length of that knife by his hand and said, he had hacked with such a knife). A-1 Selvam with a curved knife hacked my father at the backside of his head. My father swooned and fell down in a pool of blood. I, my mother, my sisters screamed out; 'Oh'. At that time, my uncle Venkatesan and his wife Pushpa came running from their house, nearby. The accused Kali hacked Venkatesan at his right hand, back and fingers. My aunt Pushpa screamed out "Aioh". At that time, Munivel cut forcibly two of the fingers of my aunt Pushpa. Srinivasan, Selwaraj, Panneer Selvam, Babu and Mohan chased the accused who were running away. The accused got into an auto at Arunachalam road and fled." "(6) It is not disputed that PW-3 and PW-10 are independent witnesses. It is also not disputed that they suffered some injury on their hands." "(7) As regard the nature of injuries suffered by PW-10 and her husband, PW-3 was not cross-examined." "(8) The injuries on the person of PW-3 were medically examined by PW-11-Dr. S. Loganathan. The said witness stated: "On 17.3.94 at 1 O'clock in the night, Venkatesan, around 45 years, was brought by P.C.8120. He stated that, he was also attacked at the same time as has been seen in the Accident Register related to Kannan. On examining him, he was found in his normal senses and he could also talk. His ring finger on his right hand was seen cut. There was an incised injury seen on his back and it measure 2 x 1 x 2"CM. I sent him to the Doctor for emergency treatment. The aforesaid injury could have been came at the time and manner said by him. Exhibit P.5 is the copy of the related Accident Register. In that early morning at 1.05 hrs, one Pushpa aged 30 was brought by the aforesaid Police constable and she was in her senses and she stated that she was attacked as has been seen in the aforesaid Accident Register and she could talk. The ring finders of both of her hands were damaged. At that time, there was simple injury with abrasion noticed on the ring fingers. I sent her to the duty doctor for treatment. The occurrence could have happened at the time and manner stated by her. Exhibit P.5 is the copy of the Accident Register given by me." "(9) PW-10, Pushpa, in her evidence stated: "The witness Venkatesan is my husband. In the 3rd month of 1994, on one day, in the night, at 12 O'clock, I was keeping awake in my house. At that time my husband was asleep. On hearing noise, we went out. The 5 accused were having knives with them. A4 attacked my husband with a knife at his right hand and back. On seeing it, I screamed. At once A5 cut my fingers forcibly with a knife. Now, I am unable to move my right hand ring finger and my left hand ring finger. After a while, Raja took us by an auto to the Police Station. From there, we went to the Royapettai hospital." ;