Krishnan & Anr Vs. State  Insc 321 (28 July 2003)
Doraiswamy Raju & Arijit Pasayat. Arijit Pasayat,J
O. Ayyar Thavar and Anr.
State Rep. By Inspector of Police
These two appeals are directed against the
common judgment of the Karnataka High Court whereby conviction of the
appellants under Section 302 of the Indian Penal Code, 1860 (in short the
'IPC') read with Section 34 thereof and the sentence for imprisonment for life
Additionally, accused-appellants Ayyar Thavar
and Porutchyelvan were convicted for the offence punishable under Section 323
IPC and sentenced to undergo RI for three months. Such conviction and sentence
have been upheld.
Acquisitions which form the basis of prosecution
in essence are as follows:
Maheswari (hereinafter referred to as the
'deceased') was allegedly having an illicit relationship with Azagu Raja, Sub
Inspector of Police who is the husband of Minnalkedi (A-6). She was originally
an accused but was acquitted by the trial Court. The said Minnalkedi is the
daughter of Ayyar Thavar. Accused Porutchyelvan is the son of accused No.1- Ayyar
Thavar and accused Krishnan and Ganesan are cousins of Porutchyelvan.
Originally, 7 persons were alleged to be the authors of a homicide in which Maheswari
lost her life on 3.12.1991. Accused Mylakkal is the wife of Ayyar Thavar and
another accused Selvi was their daughter. Mylakkal, Minnalkedi and Selvi were
acquitted of the charges by the trial Court. Originally, all the accused
persons were charged of offences punishable under Section 302 IPC read with
Section 34 IPC and also under Section 120B IPC and Section 341 IPC. The
appellants Ayyar Thavar and Porutchyelvan were in addition accused of
committing offence punishable under Section 323 IPC.
Deceased Maheswari was working as a Branch Post
Master in a village post office. She was unmarried. One year prior to the
occurrence she developed intimacy with Azagu Raja.
This was objected to by the accused persons and
accused Krishnan and Ganesan reprimanded the deceased and warned her when she
was returning from her place of work not to have any connection with Azagu
Raja. Report was filed at the Police Station by the deceased in this regard.
Thereafter, the police looked into the matter and advised them not to quarrel
with each other. Six months prior to the occurrence, deceased used to tell her
brother Parameswaran (PW1) that she was receiving telephonic threats from the
accused. PW1 decided to take the deceased to her work place and to bring her
back home in view of such threats. On 26.6.1991, again the deceased gave a
report to the SHO, Srivilliputhur Town Police Station stating that she was
apprehending danger at the hands of the accused. Even one week prior to the
occurrence, the three acquitted accused came to the Branch Post office and
threatened her with dire consequences and even told her that her life was in
danger. On 3.12.1991 at about 2.30 p.m. PW-1 went to the work place of the deceased and when both
of them were coming back, suddenly the accused appellants emerged from the side
of a Milk dairy. Accused- appellant Ayyar Thavar said in a loud voice as to how
the deceased dared to continue her intimacy with his son-in-law,
notwithstanding the warnings given to her. He tried to assault the deceased.
When it was warded off by PW1, he was Given fist blows on his neck and nose and
pushed down. On seeing this, the deceased tried to escape by running towards
the nearby milk dairy.
Accused-appellant Ayyar Thavar inflicted a cut
injury on the backside of the deceased uttering in loud voice "die with
this". Accused Porutchyelvan gave a blow with aruval on the head of the
deceased on the right side. Similarly, accused- appellants Krishnan and Ganesan
caused cut blows on her back. When the deceased fell down, the accused-
appellant Ayyar Thavar inflicted another cut on the right ear lobe. Thereafter,
all the four accused persons ran away.
PW1 entrusted the body of the deceased with Rengan
(PW2) and rushed to the nearby Police Station and gave a report at about 3.00
p.m. Periyakaruppan (PW11) reduced the same into writing and registered a case
and prepared a first information report and sent the same to the Court and the
concerned higher officials. He also sent PW2 with a medical memo for treatment
and rushed to the place of occurrence and sent the injured Maheswari for
treatment with a constable.
Dr. Muthuswami (PW7) examined her at about 3.40 p.m. on 3.12.1991 and found
five injuries. PW1 was also examined at about 4.00 p.m. and injury was noticed on the nose.
Titus Gnanadoss (PW12), the Inspector of Police at the Police station took up
the investigation. Intimation was received by him about death of the deceased
at about 4.40
mortem was conducted by Dr. Abbas Ali (PW8). After completion of investigation
the case was committed to the Court of Sessions, Kamarajar and the trial was
During trial of the case, accused persons
pleaded innocence. The plea taken was that the deceased had four sisters and
one of them was not getting proposals for marriage because everybody knew about
her illicit relationship with Azagu Raja. Therefore, PW1 and other members of
the family killed the deceased and put blame on the accused appellants and the
ladies of their family.
Accused-appellant Krishnan took the plea that at
the relevant point of time he was not present and referred the warning notice
given in a daily. His stand was that Azagu Raja had falsely implicated him in
Accused-appellant Ganesan took the plea that at
the relevant point of time he was working in Sethupathi High School as officer, Education
Department and, therefore, the question of his presence at the place of
occurrence could not have arisen as claimed. He examined DW-1, the Head Master
of the School to substantiate his claim.
The trial Court analysed the evidences on record
and found that PW1's evidence was credible and cogent, though some doubts were
expressed on the veracity of PW2's evidence. Nevertheless since the evidence of
PW1 was credible, as noted above, the accused-appellants were convicted and sentenced.
But evidence was found to be inadequate so far as three ladies are concerned.
Before the High Court the plea of innocence and
the plea regarding alibi were pressed into service but the High Court did not
accept the same. It found the view expressed by the trial Court to be legally
and factually sound and confirmed the conviction and the sentence.
In appeal before the High Court, the plea of
alibi and the materials produced by accused-appellant Krishnan were found to be
of no consequence. Analysing the evidence and the materials produced by him it
was held that the plea of alibi was not established.
In support of the appeals, learned counsel for
the appellants submitted that it would be extremely unsafe to sustain the
conviction on the basis of PW1's evidence. If one reads his statement of Parameswaran
as recorded at the police station for the purpose of registering a FIR, it
appears that it was after calculated deliberation and cannot be the statement
of a person who claimed to have seen the ghastly attacks on his sister. Even
with such deliberate planning also the complaint has many loose ends. No
definite role was ascribed to accused appellants Krishnan and Ganesan. In view
of accepted hostility of PW1 with the accused appellants, the defence plea that
PW1 and other members of his family were the authors of the crime is more
It is stated that improvement has been made in
the Court from what was stated in the statement which was treated as FIR. The
claim that PW1 ran after the accused and the deceased on getting up after
having fallen down by the impact of the blows given by the accused-appellants Ayyar
Thavar and Porutchyelvan, has not been stated in Court.
The medical evidence is at variance with the
ocular evidence and, therefore, casts doubt thereon. Even if the prosecution
case is accepted in its entirety, accused- appellants 3 and 4 cannot be held
guilty of offence punishable under Section 302 IPC as the ingredients of
Section 34 IPC are not made out. According to the prosecution, blows were given
on the back and this did not result in fatal injuries which were attributed to
the assaults by the appellants Ayyar Thavar and Porutchyelvan.
It was submitted that the defence plea of alibi
taken by accused-appellant Ganesan has been wrongly discarded by the trial
Court and the High Court and similar is the case with the plea taken by
accused-appellant Krishnan. Had the plea of alibi of accused-appellant been
accepted, it would have clearly established how the prosecution was trying to
falsely implicate more persons. In other words, it was submitted that the
material is inadequate so far as the accused-appellants Krishnan and Ganesan
are concerned and at the most they could be convicted for offence punishable
under Section 324 or Section 326 IPC. It is pointed out that accused-appellant
Krishnan is an advocate and has already been in custody for nearly 4 years.
Here, it has to be noted that the
accused-appellant Ganesan has died on 12.4.2003 and his appeal has abated in
terms of Section 394 of the Code of Criminal Procedure, 1973 (in short the 'Crl.PC').
In response, learned counsel for the State
submitted that the evidence of PW1 has been carefully analysed by both the
trial Court and the High Court. In spite of detailed analysis, nothing infirm
was noticed therein to warrant rejection thereof. The scenario as described by
PW1 has been partially held to be established by the evidence of PW2 though his
evidence in its entirety was not accepted by the trial Court. The first
information report was lodged immediately after the incident and the relevant
particulars were given.
Rival contentions need careful consideration.
The fact that the first information report was
given almost immediately, rules out any possibility of deliberation to falsely implicate
any person. All the material particulars implicating the four appellants were
given. It has to be noted that both the trial Court and the High Court have analysed
in great detail PW1's evidence to form the basis for conviction. Therefore, the
trial Court and the High Court rightly acted upon the evidence of PW1.
The highly hypothetical imaginative story
advanced by the defence to contend that PW1 and his family members killed the
deceased is too hollow to be accepted. If that was really so, they would not
have chosen the place and the time for doing so. There is not even a shadow of
material to substantiate the plea.
The evidence of Dr. Muthuswamy (PW7) and Dr. Abbas
Ali (PW8) do not in any way run contrary to the ocular evidence.
In any event, the ocular evidence being cogent,
credible and trustworthy, minor variance, if any, with the medical evidence are
not of any consequence.
The plea of alibi advanced by the
accused-appellants Krishnan and Ganesan has been rightly discarded after
elaborate analysis by the trial Court and the High Court.
Section 34 has clear application to the facts of
the case, when PW1's evidence is considered. They have been rightly convicted
by the application of Section 34.
Coming to the plea that the medical evidence is
at variance with ocular evidence, it has to be noted that it would be erroneous
to accord undue primacy to the hypothetical answers of medical witnesses to
exclude the eye-witnesses' account which had to be tested independently and not
treated as the "variable" keeping the medical evidence as the
It is trite that where the eye-witnesses'
account is found credible and trustworthy, medical opinion pointing to
alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and
ears of justice. Hence the importance and primacy of the quality of the trial
process. Eye witnesses' account would require a careful independent assessment
and evaluation for their credibility which should not be adversely prejudged
making any other evidence, including medical evidence, as the sole touchstone
for the test of such credibility. The evidence must be tested for its inherent
consistency and the inherent probability of the story; consistency with the
account of other witnesses held to be credit-worthy;
consistency with the undisputed facts the
'credit' of the witnesses; their performance in the witness-box; their power of
observation etc. Then the probative value of such evidence becomes eligible to
be put into the scales for a cumulative evaluation.
A person has, no doubt, a profound right not to
be convicted of an offence which is not established by the evidential standard
of proof beyond reasonable doubt.
Though this standard is a higher standard, there
is, however, no absolute standard. What degree of probability amounts to
'proof' is an exercise particular to each case.
Referring to of probability amounts to 'proof'
is an exercise the inter-dependence of evidence and the confirmation of one
piece of evidence by another a learned author says: (See "The Mathematics
of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and
The simple multiplication rule does not apply if
the separate pieces of evidence are dependent. Two events are dependent when
they tend to occur together, and the evidence of such events may also be said
to be dependent.
In a criminal case, different pieces of evidence
directed to establishing that the defendant did the prohibited act with the
specified state of mind are generally dependent.
A junior may feel doubt whether to credit an
alleged confession, and doubt whether to infer guilt from the fact that the
defendant fled from justice. But since it is generally guilty rather than
innocent people who make confessions, and guilty rather than innocent people
who run away, the two doubts are not to be multiplied together. The one piece
of evidence may confirm the other." Doubts would be called reasonable if
they are free from a zest for abstract speculation. Law cannot afford any favourite
other than truth. To constitute reasonable doubt, it must be free from an over
Doubts must be actual and substantial doubts as
to the guilt of the accused persons arising from the evidence, or from the lack
of it, as opposed to mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt based upon
reason and commonsense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of
it, cannot obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof beyond reasonable
doubt. There is an unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic probability must, in
the last analysis, rest on a robust common sense and, ultimately, on the
trained intuitions of the judge. While the protection given by the criminal
process to the accused persons is not to be eroded, at the same time,
uninformed legitimization of trivialities would make a mockery of
administration of criminal justice. This position was illuminatingly stated by Venkatachalia,
J(as His Lordship then was) in State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154).
Other plea relates to alibi claimed by accused-
appellants Krishnan and Ganesan. Accused-appellant Krishnan claimed that he had
given a warning notice and it would be evident from the warning notice itself.
Accused Ganesan relied on some documents to claim that he was in a school at
the relevant point of time and could not have been at the spot of occurrence.
It has been held by the trial Court that the documents were too general in
nature and did not in any way establish that at the relevant point of time
accused appellant Ganesan was not at the site of occurrence. It has also been
held by the trial Court that fabricated documents were pressed into service.
The conclusion does not suffer from any infirmity.
Similarly, warning notice does not indicate
anything on which relevance was placed by accused Krishnan. It did not in any
way rule out the possibility of his presence at the place of occurrence. His
claim has also been rightly discarded by the courts below.
One of the pleas that was raised with great
vehemence related to applicability of Section 34 IPC to the case of
accused-appellants Krishnan and Ganesan. So far as the accused Ganesan is
concerned, in view of abatement of his appeal, there is no necessity to
consider the plea.
Nevertheless, we have considered the plea in the
background of Section 34 IPC. It is pointed out that the alleged assaults by
these two accused were on the backside and not on the head, and according to
medical evidence, injuries on the head were fatal.
It is to be seen whether the accused persons in
furtherance of their common intention caused the death of the deceased on the
alleged date, time and place. A charge under Section 34 of IPC presupposes the
sharing of a particular intention by more than one person to commit a criminal
act. The dominant feature of Section 34 is the element of participation in
actions. This participation need not in all cases be by physical presence.
Common intention implies acting in concert. There is a prearranged plan which
is proved either from conduct or from circumstances or from incriminating
facts. The principle of joint liability in the doing of a criminal act is
embodied in Section 34 of the IPC. The existence of common intention is to be
the basis of liability. That is why the prior concert and the prearranged plan
is the foundation of common intention to establish liability and guilt.
Section 34 deals with the doing of separate
acts, similar or diverse, by several persons; if all are done in furtherance of
common intention, each person is liable for the result of them all as if he had
done them himself; for 'that act' and 'the act' in the latter part of the
section must include the whole section covered by a 'criminal act' in the first
part, because they refer to it. Constructive liability under Section 34 may
arise in three well-defined cases. A person may be constructively liable for an
offence which he did not actually commit by reason of:
(1) the common intention of all to commit such
an offence (Section 34)
(2) his being a member of a conspiracy to commit
such an offence (Section 120A)
(3) his being a member of an unlawful assembly,
the members whereof knew that an offence was likely to be committed (Section
Section 34 is framed to meet a case in which it
may be difficult to distinguish between the acts of individual members of a
party or to prove exactly what part was taken by each of them. The reason why
all are deemed guilty in such cases is, that the presence of accomplices gives
encouragement, support and protection to the person actually committing the
act. The provision embodies the common-sense principle that if two or more
persons intentionally do a thing jointly it is just the same as if each of them
had done it individually.
In view of the factual aspects highlighted
above, the inevitable conclusion is that accused Krishnan and Ganesan are
equally liable for commission of offence.
Applicability of Section 34 depends upon the
facts and circumstances of each case. As such no hard and fast rule can be laid
down as to the applicability or non- applicability of Section 34. For
applicability of the section it is not necessary that the acts of several
persons charged with commission of an offence jointly, must be the same or
identically similar. The acts may be different in character, but must have been
actuated by one and the same common intention in order to attract the
The fact situation in the present case has great
similarity with those in Charan Singh v. State of Punjab (AIR 1998 SC 323). In
that case principal accused gave a gandasa blow from the sharp side on the head
of the deceased. That was the fatal blow. Co-accused also assaulted the
deceased with the gandasa on the backside near the shoulder of the deceased. It
was held that attack at different places on different sides of the weapons of
assault did not show absence of common intention.
In the background as highlighted above, charge
under Section 302/34 IPC stands established against both the accused persons.
In view of the legal principles inferred and the
factual position analysed above, the only conclusion is that the appeals sans
merit. We dismiss both the appeals.