Janarthanam, J. - (1.) APPELLANTS are accused 1 and 2 in Sessions Case No. 120 of 1985 on the file of Court of Session, Ramanathapuram Division at Madurai . Each of them was found guilty under Sec. 302 read with 34, I. P. C. , convicted thereunder and sentenced to imprisonment for life.
(2.) AGGRIEVED by the said conviction and sentence, the present action had been resorted to. Brief facts are: (a) Accused 1 and 2 are residents of Then Thirupachethi village, which lies within the jurisdiction of Thirupachethi police station limits. The second accused is the cousin of the first accused. The first accused got married to one Mahalakshmi and the spouses were blessed with seven children. The wife of the first accused, Mahalakshmi, is none else than the daughter of one Veerabadran, born through his first wife Chinnakannammal, p. W. 1, Chandrasekaran (since deceased) and P. W. 3 are the brothers of the said mahalakshmi. (b) The said Veerabadran's second wife is one ammathai. Through Ammathai, four off-springs daughters came into existence. One of them is by name Kousalya. The said Kousalya was given in marriage to one masanam at Athikarai village. The matrimonial home of Kousalya and Masanam did not appear to sail in calm waters and consequently, somehow or other Kousalya got divorced from her husband Masanam and she started living with her parents. (c) Whilst so, the first accused got friendly with her. Subsequently the friendly relationship of the first accused with Kousalya resulted in some sort of incestous relationship between them. As a consequence it so happened that sometime prior to the occurrence, the first accused eloped with the said Kousalya and got her married for the second time, deserting his wife Mahalakshmi and her seven children. P. W. 1, the deceased and other elders in the family did not at all like the marriage of the first accused with kousalya. But the relatives of the first accused did not at all object to the said marriage. However, P. W. 1 and deceased and other elders felt that the first accused should not return back to the village as the family life with Kausalya was likely to put the family into sham disgrace. Notwithstanding such remarks, the first accused returned to the village with Kausalya and started living there. (d) Some three days prior to the occurrence, which event happened on 12. 8. 1984, when P. W. 3 and the deceased were working in the field, the first accused was stated to have demanded from the deceased to repay a loan which his father procured from a jaggery merchant for the purpose of raising sugarcane. The deceased in turn did not comply with the request of the first accused and he appeared to have replied that if notice did come, he would make necessary arrangements for repaying the loan and he would be the last person to make payment through the first accused. The first accused took it as an affront and he was stated to have gone away from the scene proclaiming that in case he did not returned the loan amount to him to be paid by him to the jaggery merchant, there was every likelihood of some perilous consequence to his life. (e) On the evening of the day of the occurrence, P. W. 1 the deceased and his brother-in-law P. W. 2 went to Thirupachethi for taking tea. One Azhagirisami also met them at Thirupachethi. After taking tea, P. Ws. 1 and 2 the deceased and the said Azhagirisami were returning to their village. The time was then 9. 45 p. m. When they were reaching near Pillaiyar Temple situate adjacent to the railway station thereof which P. W. 5 is the Station Master, accused 1 and 2 were stated to be coming from the opposite direction. On sighting the deceased, the first accused appeared to have claimed that the deceased was responsible for putting him to sham disgrace before the public and so saying, he was stated to have whipped out a knife from his waist and inflicted a stab, which landed on the upper part of his abdomen and at that time, the second accused was stated to have caught hold of the deceased. The deceased on receipt of the injury, fell down and thereafter the accused ran away from there. The victim-deceased was then taken to Thirupachethi Police station by P. Ws. 1 and 2 and Azhagirisami. The victim-deceased was then in an unconscious state. (f) P. W. 9 was the then Sub-Inspector of Police, thirupachethi Police Station. At about 10. 15 p. m. on 12. 8. 1984 while he was in charge of the police station, P. Ws. 1 and 2 and Azhagirisami brought the victim-deceased and P. W. 9 found the victim-deceased not in a position to speak. So, he recorded a statement as narrated by P. W. 1. The statement is Ex. P-1. On the strength of Ex. P-1, P. W. 9 registered a case in Crime No. 102 of 1984 for alleged offences under Secs. 341 and 324, I. P. C. Ex. P-9 is the printed First information Report. He then sent the victim-deceased with a memo through the constable, P. W. 6 to the Government Hospital, Thiruppuvanam, for the purpose of treatment. (g) Accordingly, P. W. 6 took me victim-deceased to the government Hospital, Thiruppuvanam, where P. W. 8, Civil Assistant Surgeon attached to the hospital examined the deceased at 10. 40 p. m. and noted down the injuries he found on him. Ex. P-13 is the extract from the accident register. The deceased was then restless. However at 11 p. m. he found the deceased dead. Ex. P-4 is the death intimation, (h) P. W. 6 on receipt of Ex. P-4, death intimation, returned to the police station and handed over the same to P. W. 9 at 1 a. m. on 13. 8. 1994. P. W. 9 in turn altered the case into one under Sec. 302, I. P. C. , prepared express First Information Report and sent the same to the concerned officials. Ex. P-10 is the express report sent to court. (i) P. W. 10 was the then Inspector of Police, at 4 a. m. on 13. 8. 1984 he received a copy of the express First Information Report and immediately he took up the further investigation in the case. He rushed and reached the scene at 6 a. m. After inspecting the scene, he prepared Ex. P-2, observation mahazar, in the presence of P. W. 4 and another. He also drew a rough sketch of the scene, Ex. P-14. At 7. 30 a. m. he seized from the scene m. O. I, blood stained earth under Ex. P-3, Exs. P-2 and P-3 were attested by P. W. 4 and another. He then rushed and reached the Government Hospital, Thiruppuvanam and between 9. 30 a. m. and 12. 30 p. m. he held inquest over the deadbody of the deceased Ex. P-15 is the inquest report. He examined P. Ws. 1 to 3 during inquest. (j) After the inquest was over, P. W. 10 handed over the body of the deceased to the constable P. W. 6 along with Ex. P-11, requisition for the purpose of conducting autopsy. He also examined P. Ws. 5 and 6. (k) P. W. 8, the Civil Assistant Surgeon attached to the government Hospital, Tiruppuvanam. On receipt of Ex. P-11, requisition, he commenced autopsy over the body of the deceased at 3 p. m. on 13. 8. 1984. Ex. P-12 is the post-mortem certificate he issued. She was of the opinion that the deceased would appear to have died due to shock and haemorrhage about 15 to 18 hours prior to the autopsy. She would further opine that injuries No. 1 and 2 as described in Ex. P-12 were possible by nails or by any rough object. She would further opine that injury No. 3 is possible by stabbing with any knife and that injury No. 3 is necessarily fatal. (l) After the autopsy was over, the constable P. W. 6 seized from the body of the deceased M. O. 2 shirt, M. O. 3 towel, M. O. 4 trouser and M. O. 5 lungi and handed them over at the police station. (m) On 14. 8. 1984 P. W. 10 examined P. W. 9. On 20. 8. 1984 he examined P. W. 8. On 29. 8. 1984 he came to understand that both the accused surrendered the then Judicial II Class Magistrate, Melur. On 28. 9. 1984 he sent ex. P-5 requisition to the Judicial II Class Magistrate, Sivaganga, for sending the incriminating objects to the chemical examiner for the purpose of analysis. (n) P. W. 7 was the then Head Clerk attached to Judicial II class Magistrate, Sivaganga. On receipt of Ex. P-5, requisition, as per the directions of learned Magistrate, he despatched the incriminating material objects to the chemical examiner for the purpose of examination under the original of Ex. P-6, office copy of the letter. Exs. P-7 and P-8 are respectively the reports of the chemical examiner and serologist. (o) P. W. 10, after completing the formalities of investigation, laid the final report before the Judicial II Class Magistrate, sivaganga as against accused 1 and 2 for the alleged offence under Secs. 302 and 34, I. P. C. on 14. 10. 1984. (a) On committal, learned Sessions Judge, ramanathapuram Division at Madurai, framed a charge against the accused under sec. 302 read with 34, I. P. C. (b) The accused, when questioned as respects the charge so framed, denied the same and claimed to be tried. The prosecution in proof of the charge so framed, examined P. Ws. l to 10, filed Exs. P-1 to P-15 and marked M. Os. 1 to 5. The accused when questioned under Sec. 313, Crl. P. C. as respects the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. They did not choose to examine any witness on their behalf.
(3.) LEARNED Sessions Judge on consideration of the materials placed and after hearing the arguments of learned Public Prosecutor and learned counsel for the defence, however rendered the verdict as stated above. (a) Mr. N. Natarajan, learned Senior Counsel appearing for the appellants-accused, would press into service the following points for consideration: (1) The conviction and sentence as had been imposed upon the second accused by the Court below for the offence under Sec. 302 read with 34, I. P. C. cannot at all stated to be sustainable, inasmuch as any of the materials placed before the court below does not point out his sharing of the common intention with the first accused; and (2) Even assuming for arguments sake that the materials placed on record point out that it was the hand of the first accused that was responsible for causing the stab injury on the abdomen of the deceased on the fateful night in question, even then it cannot be stated that such an act of his can, by any stretch of imagination be stated to be falling under any one of the clauses of Sec. 300, I. P. C. punishable under Sec. 302, I. P. C. and if at all, this act may squarely fall under Sec. 304, Part II, I. P. C. (b) Mr. R. Raghupathy, learned Additional Public Prosecutor would, however, repel such submissions. The sequence of events that took place on the fateful night in question is sought to be projected by the prosecution through eye witnesses p. Ws. 1 and 2. What all they stay is that the first accused all of a sudden whipped out a knife from his waist and inflicted a stab, which landed on the abdomen of the deceased and at that time, the second accused caught hold of the hands of the deceased. No material had been placed to point out that the second accused had knowledge of the possession of the weapon of offence, knife, by the first accused at the time when they were coming together. The further puzzling fact it is that nothing had been placed on record to show that the second accused joined hands with the first accused in doing some harm or chastising the deceased for his act of putting the first accused to sham disgrace before the public at any point of time prior to the occurrence. While the second accused was coming along with the first accused, unexpectedly and all of a sudden, the first accused whipped out a knife kept concealed in his waist and inflicted a stab on the person of the deceased, which landed on his abdomen and at such time, he was stated to be catching hold of the deceased. ;