In the Madras High Court

Mookan and 3 Oehers

v.

State
RATHNAVEL PANDIAN AND DAVID ANNOUSSAMY, JJ.
Crl. A. No. 835/83
2-9-1987

Code of Criminal Procedure. S. 378 173 - 313 Indian Penal Code,

Ss. 341, 323 324, 326, 302 r/w 34 & 109 where the prosecution party
and the accused party accuse each other being aggressors, and the
prosecution has not explained the injuries on the accused nor the
accused while tendering evidence have not explained away entirely the
injuries found on the deceased and a P.W, it is necessary to examine the
circumstances

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pertaining to the causing of injuries In an occurrence, where several

persons were involved on both sides, it will not be possible for the eye
witnesses to account clearly for all the injuries. It is also usual that when
the witness have persued the postmortum and wound certificates, they
become wiser and attribute the injuries to one or more accused.
Therefore, care has to be exercised in order to determine exactly the
part played by each of the accused to retain only what is proved beyond
resonable doubt.
Facts

a. 1st appellant/accused is the father of appellants/accused 2, 3 & 4 and the deceased was
the husband of P.W 1, President of a Co-operative Milk Society. (2)
b. A-1 had aspirations to the presidency of the society, but was disappointed by the refusal
of P.W 1, there ensured enmity between A-1 and P.W.I besides her deceased husband.
(2)
c. Prior to the occurrence, A-2, beat P.W 1 with his slipder and upon complaint the Police,
advised the parties to maintain peace. (2)
d. On the day of occurrence, a constable came and informed both the accused and P.W 1 to
go over to the police station, on the following day, for an enquiry. (2)
e. A little later, A-1, A-3 & A-4 each armed with weapons and other instruments came to the
house of P.W 1, uttering threatening words accusing the deceased of sending
complaints after compalints against them to the police and giving incessent troubles to
them and shouting that he should be done away with. (2)
f. Deceased and his family members escaped from their house and took shelter in another
house, the crowd gathered giving a sence of protection to the deceased, who ventured
to come out of the house with his family members and started to run further; but they
were intercepted by the accused. (2)
g. A-2 inflicted injuries on the deceased with his arrival; A-1 stabbed with volkambu and
inflicted more injuries, A-3 & A-4 joined to attack the deceased who had already fallen to
the ground. (2)
h. A-2, 3 & 4, were beaten P.W 2, the brother of the deceased. (2)
i. The trial Judge, convicted and sentenced the accused to life imprisonment u/s 302 r/w S.
34 I.P.C (A-2 was convicted sentenced u/s 324 I.P.C in addition) (7)
j. This appeal is against the judgment of the lower court. (1)
Held :

k. P.W 2 was seen by the doctor only on the next day afternoon; P.W 1 who was pregnant
and who was having other children of tender age could not have followed the
aggressors; the aruval alleged to have taken by P.W 2 to the police was not handed over

to them nor seized by them; the motive attributed to the accused, viz., that A-2 was
jealous over P.W 1 of being chairman was untrue.contentions considered and held to
be not very important in the circumstances of the case. (11)
l.

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The prosecution has not given any version explaining the injuries found on the accused.
contention considered. (12)
m. Perusal of the entire evidence indicates that the prosecution case is broadly well
established. (8)
n. It is true that prosecution has not explained why the aruval which P.W 2 had in his hands
when he went to the police station was not seized and why he was examined by the
doctor only on the next day; but that does not in any manner shatter the facts that P.W 2
was very much present at the scene of occurrence and sustained injuries. (11)
o. Motive : motive might have been a initial source of rancour between the parties, but
due to subsequent developments which had considerably increased the enmity between
them and they were summond by the police for an enquiry in respect of previous
quarrels. (11)
p. There is nothing unnatural in P.W 1, (wife of the deceased, a pregnant woman, leaving
her children in the house when the attacking party had moved in another direction
following her husband, whose life was at stake, even though she was in her 6th month
of pregnancy. (11)
q. The question now arises, is as to what offences the accused are guilty of, both the parties
accused each other as aggressors; the prosecution has not given any version explaining
the injuries on the accused and the accused also, while tendering their evidence, did not
explain away entirely the injuries on the accused and P.W 2. (12)
r. In this connection, it is useful and necessary to set out the injuries sustained by the
accused in ordar to have a clear picture of the situation. (12)

s. From the totality of the evidence, the injuries sustained by A-3 & A-4 on the one side and
they deceased and P.W 2 on the other, it is clear that there was a fight between both the
parties; whichever party might have been the aggressors, the accused party has clearly
exceeded the right of self-defence, if any as far as the injuries inflicted on the deceased
are concerned. (12)
t. Also it is clear that such incident had happened on the spur of the moment, without any
premeditation and that no acceptable evidence has been let into show that there was a
common intention between the accused, either prior to the occurrence or atleast at the
moment of the same; it is therefore necessary to fix up the liability of each accused. (12)
u. In an occurrence of this nature, where several persons were involved, on both sides, it
will not be possible for the eye-witness to account clearly for all the injuries; it is also
usual that when the witness have persued the post-mortum certificate or wound
certificate they become, wiser and attribute the injuries to one or more accused. (13)
v. Therefore, care has to be exercised in order to determine exactly the part played by each
accused to retain only what is proved beyond reasonable doubt.
w.

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A combined reading of the oral and documentary evidence, shows that none of the
accused can be convicted u/s 302 or even 304 I.P.C, from the present state of evidence,
A-1 and A-2 would be guilty of offence u/s 326 I.P.C and A-3 & A-4 would be guilty of
offence u/s 323 I.P.C (13)
Finding
Appeal is allowed partly; conviction and sentence are set aside; A-1 & A-2 are convicted and
sentenced to one year r. I u/s 326 I.P.C and A-3 & A-4 are convicted and sentenced to one
month r. I u/s 323 I.P.C

Statutes referred to
Code of Criminal Procedure, S. 374 - 173 313.

Indian penal Code, Ss. 341, 323, 324, 226, 302 r/w 34 & 109.
A. Selvam, for appellants
N. Dinakar, Govt. Advocate (Crl. side) for respondent.
Appeal filed u/s 378 Cr.P.C against the judgment of the Additional Sessions Judge of the
court of session of the Ramanathapuram Division at Madurai in S.C No. 161/81 dt-1811
1983.

Judgment
This is an appeal by all the four accused, who stand convicted for an offence
under section 302 read with section 34, Indian Penal Code, the second accused
being also convicted in addition for an offence under section 324, IPC. All the
accused have been sentenced to life imprisonment and the second accused has
been sentenced in addition to six months of rigorous imprisonment, to run
concurrently with his life imprisonment.
2. The case of the prosecution briefly is as follows: P.W.1 was the President of
the Co-operative Milk Society, Kadampankulam, started in the year 1979. From
the date of its inception till the date of occurrence, viz. 1621981, she has
been the President of that Society. Her husband Shanmugam was working as a
telephone operator in Virudhunagar. They have three daughters and one son and
P.W 1 was in her 6th month of Pregnancy at the time of occurrence. The first
accused is the father of accused 2, 3 and 4. The first accused is an agnate of the
deceased Shanmugam. The first accused aspired to become the Chairman of
the Milk Society in the year 1980. P.W 1 did not been to his request.
Disappointed by the refusal of P.W 1, the first accused abused P.W 1 and her
husband Shanmugam in vulgar language. One week prior to the occurrence the
second accused beat P.W 1 with his slipper. This happened during the absence
of Shanmugam from the locality. When Shanmugam was apprised of the fact he
wrote a complaint, Ex. P-1, which was signed by P.W 1, and the same was
forwarded to the police. P.W 1 informed about the matter the other members of
the milk society and another complaint, Ex. P-2, was given to the police signed

by P.W 1 and other members of the society, Police from Vachakarapatti come to
enquire about the matter with P.W 1 as well as accused 2 and advised them both
to live in peace. On the day of occurrence at 6-30 p.m policeman from
Vachakarapatii police station came and informed both the accused and P.W 1 to
come on the next day at 10-00 a.m to the police station for enquiry. At 7-00 p.m
the
first
accused
armed
with

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Velkambu, second accused armed with an aruval, and the third and fourth
accused each armed with ordinary sticks came towards the house of P.W 1,
which was having mud walls on all the four sides. The accused reside 59 feet
away from P.W 1's house. When they came towards the house of P.W 1 they
were uttering threatening words accusing Shanmugam of sending complaints
after complaints on behalf of his wife and giving incessant troubles and he
shouting that he should be done away with. Shanmugan and P.W 1 bolted the
doors from inside. Perumal, P.W.2, also was with them and he was the nephew
of Shanmugam. The children of Shanmugam were also inside the house.
Accused 2 said: Let us put fire to the house to exterminate all of them. Those
who were inside made a hole in the mud wall of the other side and they escaped
through the hole towards the house of Kannusami. The accused on seeing them
ran towards them to attack. They took shelter in Ayyadurai's house which was
500 feet away from P.W 1's house and bolted the house from inside. The
accused threatened Ayyadurai, P.W 3, they advised not to protect Shanmugam
and his family, and added that otherwise he will have to face the consequences.
A crowd assembled in front of P.W.S's house. Thinking that with the help of crowd
they can escape, Shanmugam and his family came out and started running
eastwards. When they reached the house of Kannusami-Thevar, situated at 10
feet away from P.W 3's house, they were intercepted by the accused. It was
about 7-30 p.m at that time. The second accused with the help of his aiuval cut
Shanmugam twice on the back and also cut him twice below the back side of the
neck. He then gave a cut an the clavicle region. The first accused with the right
velkambu stabbed on the gluteal region. He also hit with the velkambu on both

the flanks of Shanmugam. He stabbed with the velkambu above the left forearm
twice. He also gave a hit on the right clavicle region. Shanmugam fell down. The
third and fourth accused cut him on both the thighs. P.W.2, Perumal, brother of
P.W.1, resisted the accused and the second accused cut him with the aruval on
his left hand and ran away. One of the sticks held by accused 3 and 4 fell down
and with the help of that stick P.W.2 beat accused 2, 3 and 4, who were injured.
Shanmugam expired. P.W.1 with the help of Perumal on a bicycle belonging to
the milk society went to the police station at Vasakarapatti and gave a complaint,
Ex. P-4, to the Sub Inspector of Police.
3. The Sub Inspector of Police, Subburaj, being not available for examination,
head constable Balusami, P.W 11, was examined and he deposed that Ex. P-4
was in the hand writing of Sub Inspecter Subburaj and that he was present in the
station when Ex. P. 4 was written by Subburaj. He further deposed that he was
instructed by the Sub Inspector of Police to prepare an express F.I.R which he
prepared (Ex. P-21) and that the case was registered in crime No. 10 of 1981
under actions 324 and 302, IPC. The complaint, Ex. P-4, and the express F.I.R,
Ex. P-21, were sent to the Judicial Second Class Magistrals, Virudhunagar, P.W
11 also deposed that on 1721981 at 11-30 p.m he received the first
information report in crime No. 51 of 1981 from the East Virudhunagar Police
station upon the complaint for an offence under section 324, IPC against P.W 2,
and he registered the said case in crime No. 11 of 1981 and sent the first
information report to the higher officials. Ex. P-20 is the first information report in
crime No. 11 of 1981 against P.W 2.
4. P.W 13, who was the Deputy Inspector of Police, Virudhunagar, at the time
of occurrence received, on 1721981 at 00-01 hrs. when be was at Allampatti,
the first information report in this case. Since the Inspector of Police was on
leave he was in charge of the Circle and took up the investigation. He visited the
place of occurrence at 5-00 a. m. and prepared an observation mahazar, Ex. P-5,
signed by P.W 4 and another. He found the dead body of Shunmugan lying 7
fact away from the house of Kanusami Thevar. The earth was blood stained. He
also indicated in that mahazar, Ex. P-5, the distance between the place of the

corpse

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the house of P.W 1. He also noted in Ex. P-5 that in the house of P.W 1 on the
western wall there was a hole of 1' 9 1' 5 about 3 feet above the ground and
that there was mud inside the house. He also found inside the house two
crowbars. He seized the blood stained earth, M.O 11, and the sample earth from
the place of occurrence under mahazar, Ex. P-6, attested by the same witnesses.
He recovered portion of mud, M.O 12, which was found inside the house on
acount of making the hole in the wall, and the two crowbars, M. Os. 7 and 8
through a mahazar, Ex. P-7 attested by the same witnesses. He prepared Ex. P31, rough sketch of the scene of occurrence showing the house of P.W 3 and
P.W 1. From 7-00 a. m. to 10-00 a. m. he held inquest over the dead body during
the course of which he examined P. Ws. 1 to 3 and prepared the inquest report ,
Ex. P-32. He then sent a requisition, Ex. P-14, through P.C 1023, P.W 6 for
having the dead body antopsied. At 10-15 a. m. P.W 2 produced M.O 9, aruval,
and M.O 10, blood stained shirt of P.W 2, which were seized through mahazar,
Ex. P-8, attested by the same witnesses. The accused were found absconding.
He examined P.W 4 and others. At 3-00 p. m. he arrested the third accused at a
distance of a half a mile from Kadambankulam. Since he found that he had
injuries he brought him to the Virudhunagar police station and sent him to
Virudhunagar hospital accompanied by police constables. At 6-00 p. m. when he
went to Virudhunagar east police station he got the first information report in
crime No. 51 of 1981 and took up that matter also for investigation. That was a
complaint filed by the 4th accused against P.W 2. Since the place of occurrence
was within the jurisdiction of Vachakarapatti police station the matter was
transferred to that station where it received the crime No. 11 of 1981. At 7.30 p.m
he proceeded to Virudhunagar hospital and obtained from accused 4 the blood
stained shirt, M.O 14, through mahazar, Ex. P-10, attested by P.W 5 and another.
At 8-00 p. m. he seized from accused 3 the terricotton shirt, M.O -13, through
mahazar, Ex. P-9, attested by P.W 5 and another. At. 8-00 p. m. he arrested the
4th accused. Since he found accused 3 and 4 admitted in the hospital for care,

he appointed three constables for guarding them. On the next day, i. e. 182
1981, he sent a remand report in respect of accused 3 and 4 to the judicial
Second Class Magistrate, Virudhunagar. He then examined some prosecution
witnesses. He sent with a requisition, Ex. P-23, the blood stained material objects
to the Judicial Second Class Magistrate, Virudhunagar, for chemical and
scrological examination. On 1831981 the first and second accused
surrendered before the Judicial Second Class Magistrate, Virudhunagar.
5. P.W 14, the Inspector of Police during the time of occurrence, was on leave
on 1731981. On return he scrutinised the investigation till then done by P.W
13 and took up further investigation of both the cases viz. crime Nos. 10 & 11 of
1981, respectively filed against and by the accused. He took police custdoy of
accused 1 and 2 after obtainig necessary order from the Magistrate for three
days. He examined them on 2131981 in the afternoon. The second accused
gave a voluntary statement, the admissible portion of which is marked as Ex. P11, as per which, he took P.W 14 to fields where he kept M.O.1, velkambu, M.O.9
aruval and M.Os 16 and 17 respectively the samans of accused 1 and 2. The
above articles were seized under mahazar, Ex. P-12, attested by P.W.5 and
another. He sent the seized articles to the Magistrate through a requisition, Ex. P27, to send then for chemical and scrological examinations. He examined on 2061981 P.W.8, doctor, who examined accused 2 and issued the wound
certificate, Ex. P-18, in which she stated the two injuries found were old, and who
also examined accused 1 and found on him no injury at all. The material objects
received from the investigating agency were sent to the Forensic Laboratory,
Tirunelveli Medical College Buildings, and the report of the Chemical Examiner
Ex.

P-25

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the

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M.O.12

mud

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the wall, blood was detected in M.Os 2 to 6, respectively dhoti, underwear,

banian, shirt and waistcord of the deceased, M.Os 9 to 11 respectively, aruval,
bloodstained shirt of P.W.2 and bloodstained earth, M.O 13. bloodstained shirt of
accused 3 and M.O 14. bloodstained shirt of accused 4. The report of the

scrologist, viz. Ex. P-26, is to the effect that M.Os 2 to 5 and 10 contained human
blood of O group and that the result of the test was inconclusive in respect of
M.Os 6, 9, 11, 13, and 14. As per the deposition of P.W.14, he was transferred to
another place and his successer, after perusing all the statements, exhibits and
other records of the case, filed the final report under section 173 of the Code of
Criminal Procedure to the effect that accused 1 to 4 appeared to be guilty of
offences under Sections 341, 323, 324, 302 read with 34 and 109, IPC. On the
same day he sent a report , Ex. P-34, to the effect that the complaint filed by the
4th accused was a mistake of fact and sent an intimation to that effect to accused
4.
6. Upon the committal of the accused, the Additional Sessions Judge,
Ramanathapuram, framed charges against all the four accused in accordance
with the final report filed by the investigation agency. The accused pleaded nonguilty. Thereupon the prosecution produced before the court all the evidence
gathered during investigation consisting of 14 witnesses, 34 exhibits and 17
material objects. When questioned under section 313, Cr.P.C the first accused
stated as follows: I took steps to creat a building on the public ground. This was
objected to by the deceased Shanmugam and his party. In spite of that I laid the
foundation. Shanmugam and his party picked up quarrel on that. P.W.2 with an
aruval cut accused 3 and 4, Crowd gathered. Accused 3 went to the police
station to lodge a complaint and was retained there. This case was fosited falsely
against the accused. The other accused stated that their explanation was the
same as the one tendered by accused 1. The accused examined one witness,
viz. the Duffadar of the Sessions Court, Ramanathapuram at Madurai, and filed
five exhibits consiting of the Milk Society, Exs. D-1 and D-2 the report of
Surrender by accused 3 and 4 before the Magistrate, Ex.D-3 the photographs
and their nagative, Exs.D-5 and D-4 respectively.
7. The trail court, after perusing the evidence adduced by both sides
bearing their arguments came to the conclusion that a charges were proved
by judgment dated 18111983 convicted the accused accordingly
sentenced all the accused to life imprisonment for offence under section

and
and
and
302

read with 34 I.P.C and the second accused in addition to six month of
imprisonment for the offence under section 324 I.P.C to run concurrently with the
sentence of life imprisonment. The present appeal is against the above
judgment.
8. Learned counsel for the appellants and the Public Prosecutor took us
exhaustively through the evidence on record in support of their rival contentions.
We have perused the entirety of the evidence and we find that the case of the
prosecution is broadly well established by the evidence on record. The essential
elements of evidence are as follows: The ocular testimony of P.W.1, who is a
natural witness and who filed the complaint, Ex.P-4 that of P.W.2 who is an
injured witness and against whom accused 4 has lodged a complaint, Ex.P-19;
and that of P.W.3, an an independent ocular witness, who, though doesnot
account in detail for the injuries inflicted by each of the accused, has deposed
broadly supporting the case of the prosecution. The evidence of the ocular
witnesses is corroborated by the medical evidence. P.W.7, who conducted the
post-mortem examination of the dead body on 1721981 at 2-30 p.m, found
the following injuries:
External Injuries:
1. An incised wound 3 2 3 depth over the right top of the shoulder.
Fracture of the right humerus.

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2. An incised wound 1 over the middle of left upper arm

3. An incised wound 2 1 2 depth over the lower 1/3rd of left upper
arm

4. A stab wound 2 1 2 over the left side 5 finger breadth below the
left nipple in the mid axillary line. Muscles cut.
5. A oblique lacerated wound measuring about 10 4 5 depth over the
left side of back 5 finger breadth below the inferior angle or left scapular.
Muscles lacerated. Blood clots present.
6. A straight wound 5 2 4 depth over the centre of back just 2 above
the 5th wound.
7. A straight wound 7 2 5 depth over the left side of back of head 3
away from the left ear lobule. Muscles cut. Blood clots present.
8. A lacerated wound 1 just below the 7th wound.
9. An incised wound 2 4 depth over the middle of back of head.
10. Abrasion over the left supra scapular region.
11. A stab wound 1 in the middle of left glutal region.
12. Multiple abrasion over the left knee joint.
13. An incised wound 3 1 2 over the anterior aspect of lower 1/3rd
of right fore arm. Muscles cut.
14. A stab wound 2 1 6 depth just 2 below the medial end of right
clavicle.
15. A stab would 1 2 6 depth over the mid axillary line over the chest
in the right side 5 finger breadth below the right nipple.
Internal Injuries:
Opening of abdoment: Uniform 10 ozs of dark coloured blood in the peritonial
cavity.

Opening of thorax: A stab would 2 1 2 over the left side 5 finger breadth
below the left nipple in the mid axillary line. Muscles cut. 8th, 9th 10th rib is
fractured in the mid clavicular line. Haematoma present.
2. A stab wound 1 6 over the mid axillary line of chest right side.
Muscles cut. There is a crack in the 6th rib in the mid clavicular line. Thoracic
cavity contains 5 ozs of dark coloured blood on the left side.
Heart: 220 gm. chambers empty.
Lung: Lt. 400 gm. right 450 gm. c/s Pale.
Stomach: Contains 5 ozs of partially digested rice particles. Mucosa normal.
Liver: 1400 gms. There is a lacerated injury 1 over the superior
surface and laceration in the right lobe.
Spleen: 150 gm. There is a lacerated injury in the anti surface.
Kidney: Left 130 gms. right 140 gms. C/s Pale.
Intestine: Distended with gas.
Bladder: Empty. PelvisNormal
Brain: 1400 gms. Normal
Spinal column; Not opened.
She stated that the 1st internal injury corresponded to the 4th external injury and
the
2nd
internal
injury
corresponded
to
the

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5th external injury. She also deposed that there was no external injuries
corresponding to the internal injuries found on the liver and spleen, that those

injuries could have been caused by beating with stick, that injuries 10 and 12
could have been caused by falling on the ground, that injuries 4, 11, 14 and 15
could have been caused by stabbing with Velkathi like M.O 1, that injuries 2nd 3
could have been caused by the sharp extremities of the same M.O, and that
injuries 1, 5 to 8, 9 and 13 could have been by an aruval like M.O 9. She further
deposed that the 4th and the corresponding 15th external injury were sufficient in
the ordinary course of nature to independently cause the death, that the injuries
on the liver and spleen were susceptible also of causing death and that the death
would have been instantaneous after sustaining the injuries. She was of the
opinion that the deceased would have died of shock and haemorrhage due to the
injuries to liver and spleen and other injuries sustained about 18 to 20 hours prior
to autopsy.
9. The same witness, P.W.7, deposed that she examined P.W 2 at 4.45 p.m
on 1721981 and in the wound certificate, Ex.P-16, she stated that she found
the following injuries:
1. An incised wound 1 over the left palm 1 just above the wrist joint
in the medial side.
2. Lacerated wound 1 over the middle of left thumb.
3. Abrasion over the right supra scapular region.
4. An abrasion 2 over the left ankle joint.
She was of the opinion that the injuries were caused by an aruval and that the
same could have been caused by an instrument like M.O 15.
10. The case of the prosecution finds further corroboration to a large extent in
the complaint EX. P-19, filed by the 4th accused. The substance of that
complaint is as follows: On account of the reports made by the appelants, the
policeman from Vachakarapatti came on 1621981 at 7-00 p.m and
summoned both the parties to the police station. From that time Shanmugam and
P.W 1 have been abusing them, an vulgar language. The accused went to their

house and warned them not to insult them. Then Shanmugam, P.W.1, and P.W.2
threatened the accused and went out of the house. The accused followed them
to find out where they were proceeding. When they were in front of Kannuswami
Thevar's house P.W.2 asked the accused why they were following and so saying
he cut the accused with the aruval in his hand. Accused 4 sustained injuries on
the legs and hands. Accused 2 and 3 also sustained cut injuries. In order to
protect themselves the accused attacked with stick, aruval and knife which they
were having in their hand and escaped. They then took refuge in the wood and
then went to the hospital for care. These three items of evidence, viz. the ocular
testimonies, the medical evidence and the complaint of accused 4, coupled with
other elements of evidence found in the prosecution, leaves the doubt that the
accused party caused the death of Shanmugam on the ill-fated day.
11. Learned counsel for the appellants contended that there were several
defects in the case of the prosecution. He pointed out that P.W.2 was seen by the
doctor only on the next day in the afternoon, that P.W.1 who was pregnant and
who was having other children in tender age, could not have followed the
aggressors and that the aruval alleged to have been taken by P.W.2 to the police
was not handed over to them nor seized by them. He also submitted that the
motive attributed to the accused, viz., that accused-2 was jealous over P.W.1 of
being the Chairman of the Co-operative Milk Society, which position he wanted to
occupy, was not true. We have considered all these contention. They are not very
important in the circumstances of the case. It is true that the prosecution has not
explained
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the aruval that P.W.2 had in his hands when he went to the police station was not
seized and why P.W.2 was examined by the doctor only on the next day. But that
does not in any manner shatter the facts that P.W.2 was very much present at the
scene of occurrence, that he sustained injuries. According to the acccsed
themselves they had inflicted injuries to the accused. As far as the motive is
concerned, that might have been an initial source of rancour between the parties

but due to subsequent developments which have considerably increased the

enmity between them, both of them were summoned to the police station for
enquiry in respect of their previous quarrels. There is nothing unnatural in P.W.1
a pregnant woman, leaving her children in the house when the attacking party
has moved in another direction following her husband, whose life was at stake,
even though she was in her 6th month of pregnancy. We consider that the
contentions of the learned counsel for the appellants are not well founded. They
do not in any manner shake the case of the prosecution in its essentiality.
12. Now, the next question which arises is what offence the accused are guilty
of. As per the accused, the prosecution party were the aggressors and as per the
prosecution the accused party were the aggressors each one giving a version of
his own in that respect. But the prosecution has not given any version explaining
the injuries found on the body of the accused and the accused also while
tendering their evidence did not explain away entirely the injuries found on the
body of the accused and P.W.2 In this connection, it is useful and necessary to
set out the injuries sustained by the accused in order to have a clear picture of
the situation. P.W.7, who examined the 4th accused on 1721981 at 2-00 p.m
has found the following injuries:
1. Lacerated irregular wound in between the left middle and left ring finger
1 extending from the middle of dorsal aspect of left band to
below the base of both fingers in the left hand. Bone is visible outside.
Bleeding present.
2. Abrasion over the apex of right middle finger.
3. Lacerated wound 3 2 over the middle of left leg in the posterior
aspect. Muscles cut.
4. Lecerated wound 5 3 3 over the posterior aspect of right middle of
leg. Muscles & vessels cut. Bleeding present. Bone is visible. Blood clots
present.

She gave intimation to the police upon examining accused 4 who came of his
own to the hospital. She was of the opinion that injury No. 1 was grievous and
other injuries simple in nature. Her evidence was that she was told that the
injuries have been caused on 1621981 at about 7-30 p.m when A-4 was
assaulted with Vettu Aruval. She examined the third accused, Selvaraj, on 172
1981 at 7-00 p.m and found on him the following injuries.
1. An abrasion 2 over the right knee joint.
2. An incised wound 1 over the centre of head.
3. Contusion 2 1 over the occupital region.
4. An incised wound 1 2 depth over the left side of supra scapular
region.
She deposed that the injuries were reported to her to have been caused at about
8-00 p. m. on 1621981 and were due to an assault with aruval. She was of
the opinion that the injuries were simple in nature and that a weapon like aruval
would have been used to cause injuries like injury Nos. 2 and 4. She found no
injury at all on accused 1 and she found only old injuries but no recent injuries on
accused 2. Therefore, looking at the totality of the evidence, i. e. the injuries
sustained
by
accused
3
and
4
on
the
one
side
and

Page:

HC98

the injuries sustained by the deceased and P.W 2 on the other, it is clear there
was a fight between the prosecution party and the accused party. Whichever
party might have been the aggressors, it is clear that the accused party has
clearly exceeded the right of self-defence if any, as far as the injuries inflicted on
the body of the deceased is concerned. It is also clear that all happened on the
spur of the moment without any premeditation and that no acceptable evidence
has been let in to show that there was a common intention between the accused
either prior to the occurrence or at least at the moment of the occurrence. The

sequence of facts, as spoken to by the prosecution witnesses, also does not

disclose that there would have been any such common intention. It is therefore
necessary to fix up the liability of each of the accused in this case.
13. In an occurrence of this nature where several persons were involved on
both sides, it will not be possible for the eye witnesses to account clearly for all
the injuries. It is also usual that when the witnesses have perused the post
mortem certificate or the wound certificate they become wiser and attribute the
injuries to one or the other accused; Therefore, care has to be exercise in order
to determine exactly the part played by each of the accused to retain only what is
proved beyond reasonable doubt with the available evidence. The combined
reading of Ex. P-4, the first information report , the oral testimonies and the
medical evidence shows that injury No. 11 was inflicted by accused 1 with M.O 1,
that injury Nos, 5. 6, 7, 8 and 9 were inflicted by accused 2 with M.O 9 and that
injury No. 12 consisting of multiple abrasions were inflicted by accused 3 and 4
with sticks. The other injuries would have been caused by any one of these
accused without any possibility of attributing them to any one of the accused in
the present state of evidence. It is also not possible to attribute to any person the
internal injuries and external injuries Nos. 4 and 15, which are considered by P.W
7 as susceptible of causing death independently. Therefore, none of the accused
can be convicted for an offence under section 302, I.P.C or even under section
304, I.P.C From the present state of evidence accused 1 and 2 would be guilty of
an offence under section 326, I.P.C and accused 3 and 4 would be guilty of an
offence under section 323 I.P.C
14. In the result, the conviction and sentence are set aside. Accused 1 and 2
are found guilty of an offence under section 326, I.P.C convicted there under and
sentenced each to one year of rigorous imprisonment. Accused 3 and 4 are
found guilty of an offence under section 323 IPC, convicted there under and
sentenced to each one month of rigorous imprisonment. The appeal is allowed to
the above extant.