Nadodi
Jayaraman Vs. State of Tamil Nadu [1992] INSC 130 (28 April 1992)
Anand,
A.S. (J) Anand, A.S. (J) Sahai, R.M. (J)
CITATION:
1992 SCR (2) 794 1992 SCC Supl. (3) 161 JT 1992 (3) 222 1992 SCALE (1)969
ACT:
Indian
Penal Code, 1860 : Sections 302/120-B, 302/34 & 304 Part II:
Murder-Trade
Union rivalry-Attack by a number of accused with iron rods and iron
pipes-Trial-Conviction of some accused and acquittal of others-Reliance on
testimony of witnesses vis-a-vis convicted accused and rejection of their
testimony vis-a-vis acquitted accused-Legality of-Held where injuries are
caused by a number of persons Court should ascertain the common intention of
convicted accused- Nature of injuries and weapons used held relevant for
determining the common intention-Conviction of accused altered from Sections
302/34 to one under 304 Part II.
Maxim-Falsus
in uno falsus in omnibus-Applicability of.
Penology-Conviction-Accused
suffered imprisonment for more than five years and on bail for more than a
decade - No criminal activity by accused during this period-Held not desirable
to send him back to jail-sentence reduced to imprisonment already undergone.
Constitution
of India, 1950: Article 136:
Appeal
by Special Leave-Reappraisal of evidence- Concurrent findings of facts by Court
below-Interference with.
HEAD NOTE:
The
appellants, A-2 and A-3, along with five co-accused were prosecuted under
Section 120-B read with Section 320 IPC as well as under Section 302 read with
Section 34 IPC.
Besides
the co-accused were also prosecuted for various other offences. It was alleged
that the accused persons conspired together to murder PC, Ex-Vice President of
the Peravai Workers' Union, and in pursuance of the same
committed his murder. According to the prosecution case there was trade union
rivalry between the group of the deceased and the group of accused persons. The
eye witnesses deposed that on the date of occurrence A-2 was questioning PW-22
as to why he had distributed pamphlets for a meeting to be 795 conducted under the
auspices of PC and at that time PC arrived there. Thereafter, A-2 to A-7
assaulted him with iron rods and iron pipes. Prosecution witnesses who tried to
intervene also reveived injuries at the hands of accused persons. Further, when
PC tried to escape the accused persons chased him and exhorted to do away with
him and thereupon they again assaulted him indiscriminately with iron rods as a
result of which he died. The Post Mortem report showed that the deceased
suffered 32 injuries and that the head injury was sufficient to cause death in
the ordinary course of nature.
The
Trial Court did not accept the testimony of the prosecution witnesses in toto.
It rejected the theory of conspiracy and accordingly aquitted all the accused
persons including the appellants of the charges of criminal conspiracy under
Section 120-B read with Section 302 IPC.
However,
relying upon the testimony of PW 19, 21, 22, 25, 26 and 27, it convicted both
the appellants under Section 302 read with Section 34 IPC and sentenced them to
undergo imprisonment for life holding that the deceased succumbed to the
injuries caused by all the accused persons generally and by A-2 and A-3 in
particular. All the other accused were acquitted of all other charges framed
against them.
On
appeal, the Division Bench of the High Court upheld the conviction and sentence
of the appellants. In appeals to this Court it was contended on behalf of the
appellants
(1)
that with the acquittal of co-accused of all the charges, the appellant's
conviction also became vulnerable and since the prosecution witnesses were
disbelieved qua coaccused even with regard to the assault on deceased, they
could not be relied upon to convict the appellants;
(2)
Though the deceased suffered multiple injuries but only one injury had proved
fatal according to the medical opinion and since it was not certain that the
blow given by either of the appellant was by itself fatal or who out of the two
had caused the fatal blow or that the same was caused with the intention of
causing death, the appellants' conviction under Section 302/34 IPC was not
warranted; and
(3) the
nature of injuries indicated that the intention of the appellants was only to
give beating to the deceased and they could be held guilty of an offence under
Section 325/34 IPC only.
Allowing
the Appeals, this Court,
HELD:
1.
This Court, in an appeal by special leave, when the two courts below have
concurred in their conclusions does not ordinarily 796 reassess the evidence.
The conclusion with regard to the assault on the deceased by the appellants as
recorded by the learned Sessions Judge and confirmed by the learned Division
Bench is based on proper appraisal of the evidence and is sound. [808-F, H,
809-A]
2. The
Maxim falsus in uno falsus in omnibus cannot be mechanically applied and the
mere fact that the evidence of some of the prosecution witnesses was found
unsafe for convicting the co-accused, is by itself no ground for rejecting the
whole body of their testimony. It only puts the court on its guard to carefully
scrutinise their evidence. [809-C]
3. In
cases, where large number of persons are involved and in the commotion injuries
are caused to the prosecution witnesses and others, it becomes the duty of the
court to determine the common intention which could be attributed to those
accused who stand convicted, where some of their co- accused stand acquitted
and the State chooses not to file any appeal against their acquittal. With a
view to determine the common intention, the nature of injuries, the background
of the incident and the nature of the weapons used to cause the injuries
besides other factors are required to be properly considered and appreciated.
[809-H,810-A]
4. If
common intention to cause death had been established in the case the
prosecution would not have been required to prove which of the injuries was
caused by which accused to sustain the conviction of the accused with the aid
of Section 34 IPC, but in a case like this, where five of the co-accused stand
acquitted and the common intention to cause death is not established beyond a
reasonable doubt, the prosecution must establish the exact nature of the
injuries caused to the deceased by the accused with a view to sustain the
conviction of that accused for inflicting that particular injury. [812 G-H,
813-A]
5. It
is the case of the prosecution that the injuries were caused to the deceased
not only by the appellants but by the other accused also, who stand acquitted.
In the face of this evidence it cannot be postulated that the two appellants
alone caused all the injuries to the deceased and that too with the common
intention to cause his death. If the accused had the intention to cause death
of the deceased, they would have probably come armed with mere formidable
weapons. The seat of the injuries as also their nature fortifies this view
because most of the injuries were on non-vital parts of the body. Therefore, it
cannot be said that the appellants have had 797 the intention of causing the
death of the deceased or even causing such bodily injury as was likely to cause
death.
Therefore,
neither of them can be convicted under Section 302/34 IPC. [811-D, 812-C-E,
813-B]
5.1
However, the offence of the appellants would squarely fall under Section 304
Part II IPC because they can be attributed with the knowledge that their act
was likely to cause death or to cause such bodily injury as was likely to cause
death, since a number of injuries had been caused and, the head injury was
sufficient in the ordinary course of nature to cause death. Accordingly, they
can only be held guilty of committing culpable homicide not amounting to
murder. [813 C-D, 812 F]
6.
Consequently, appellants' conviction is altered to one under Section 304 Part
II. However, as each of the appellants had suffered imprisonment for more than
five year as under-trial prisoners and during the trial and on conviction it is
not now desirable to send them back to jail after they have been on bail for
more than a decade and particularly when during that period nothing has been
brought to the notice of the Court to show that they had indulged in any
criminal activity. Therefore, their sentence is reduced to the period of
imprisonment already undergone by them. [813 E, 813 G-H, 814-A]
CRIMINAL
APPELLATE JURISDICTION : Criminal Appeal Nos. 66-67 of 1978.
From
the Judgment and Order dated 15.9.1976 of the Madras High Court in Criminal
Appeal No. 209 of 1975.
N.T. Vanamamalai,
R.K. Grag, V.J. Francis, A. Sasidharan and V. Subramaniam for the Appellants. K.V.
Venkataraman and K.V. Viswanathan for the Respondent.
The Judgement
of the Court was delivered by DR. A.S.ANDND J. Trade union rivalry and fight
for leadership, power and influence in the trade union, claimed the life of Prathab
Chandran on 15th of June 1972 at the Simpson Plant Sembium. For the said murder
of Prathab Chandran, Ex. Vice-President of the Peravai Workers' Union, seven
accused were arrayed on seven charges and tried by the learned Sessions Judge,
Madras Division who vide judgment dated 798 29th March 1975 acquitted all the
accused of the charge of criminal conspiracy under Section 120 B read with
Section 302 IPC. All the accused other than accused No.2 and accused No.3
(hereinafter referred to as A-2 and A-3) were acquitted of the other charges
framed against them and conviction was recorded against A-2 and A-3 under
Section 302 read with Section 34 IPC and each one of them was sentenced to
suffer rigorous imprisonment for life. A-2 and A-3, namely, Nadodi Jayaraman
[A-2] and Dilli Bai [A-3] filed an appeal against their conviction and sentence
in the High Court of Madras. A Division Bench of that Court, vide judgment
dated 15th September
1976, dismissed their
appeal, thereby upholding their conviction and sentence. Both A-2 and A-3
preferred special leave petitions (Crl.) in this Court and on 1st February 1978, special leave was granted. Hence
these appeals.
Before
proceeding, further, it would be relevant to note that both the appellants, A-2
and A-3, along with five acquitted co-accused, A-1, A-4, A-5, A-6 and A-7, had
been charged firstly, for criminal conspiracy to cause the murder of Prathab Chandran,
punishable under Section 120 B read with Section 302 IPC and secondly, for the
murder of Prathab Chandran, in furtherance of common intention to kill him
punishable under Section 302 read with Section 34 IPC. A-1 was charged with
abetment of murder, punishable under Section 302 read with Section 109 IPC; A-4
was charged for voluntarily causing hurt to PW-19 Munuswami, punishable under
Section 320 IPC; A-2, A-3 and A-6 were charged for voluntarily causing hurt to
PW-21, Gopalakrishnan, in furtherance of their common intention, punishable
under Section 324 read with Section 34 IPC; A-5 and A-6 were charged for
voluntarily causing hurt to PW-23, Gajendra Babu in furtherance of their common
intention punishable under Section 324 read with Section 34 IPC, and A-6 was
charged for voluntarily causing damage to the motor-cycle of Prathab Chandran
deceased, punishable under Section 435 IPC. Except for recording the conviction
of A-2 and A-3 for an offence under Section 302 read with Section 34 IPC, all
other charges against the accused including A-2 and A-3 failed and since there
has been no appeal against the acquittal of the co-accused of A-2 and A-3 or
against A-2 and A-3 in respect of their acquittal for the other offences, we
need not detain ourselves to reproduce the finding of the courts below in
respect of various charges which had been framed against all the accused
persons.
The
case of the prosecution is that Simpson Group of Companies 799 had nine
factories at the relevant time. There was a labour union known as Simpson
Companies Workers' Union and one Kattur Gopal was its
President. Prathab Chandran deceased, an inspector working in Plant III, was
one of its Vice- Presidents. This Union
was attached to what is called the "D.M.K. Peravai". The deceased was
one of the prime promoters of the said Peravai. Kuchelar A-1 was elected as the
president and Nododi Jayaraman A-2 [one of the appellants herein] was elected
the Vice-president of the Simpson Group of Companies Workers' and Staff Union.
The election had taken place by secret ballot on 27.4.1972.
Madhavan
A-5 and Sailam A-4 had been elected as Assistant Secretary and Executive
Committee Member of the Union respectively. Amuldoss alias Devadoss,
A-6, and Devarajan, A-7, were elected as group leaders. Kuchelar A-1,
considered Prathab Chandran deceased as posing a serious threat to the power
and influence, hitherto exercised by him in the Labour Union Movement. This
rivalry between A-1 group and Prathab Chandran group in the trade union leadership,
resulted in the occurrence on 15.6.1972, when Prathab Chandran was murdered.
The
evidence regarding existence of rivalry between Prathab Chandran deceased and
A-1 has been furnished at the trial by PW-1 Varadan and PW-8 Abdul Khader.
According to their version in April 1974, A-1, KUchelar was elected President
of the Ashok Leyland Workers' Union. It was
alleged that owing to the "go slow" policy advocated by A-1, the
management of the Ashok Leyland closed the factory. A meeting of various trade
unions was convened and in the all party meeting held on 29.5.1972, it is
alleged that the deceased in the course of his speech in the meeting stated
that A-1 should be removed from the Presidentship of the union as he creates a
situation, whenever, he becomes President of any union necessitating the
closure of the factory, to the detriment of the workers' interest. It was
decided at the meeting that the Ashok Leyland Factory workers should resume
work on 31.5.1972. Earlier an Association had been formed called Ashok Leyland
Workers' Welfare Protection Front and the deceased Prathab Chandran was its
promoter. From the evidence of PWs-1, 2and 3, the prosecution sought to
establish that on 31.5.1972, the group belonging to A-1 went to Ashok Leyland
Factory in order to create galata in case the workers resumed work as per the
directions given by Prathab Chandran deceased, at the all party meeting. On the
intervention of PW-2, and untoward situation was avoided. On 9.6.1972, the
executive Committee of the Ashok Leyland workers' Union passed a 'no-confidence' 800 motion against A-1 and
removed him from the Presidentship and instead elected PW-1 as the president of
the Union. On 11.6.1972, when A-1 came to the
Ashok Leyland Factory, he learnt that Prathab Chandran deceased was responsible
for his removal from the Presidentship of Workers' Union and the election of PW-1 as its President. A-1,
thereupon, told his supporters and others that Prathab Chandran deceased had
been giving lot of trouble and that he should be finished.
Prosecution
has led evidence to show that there had been some incidents earlier also
resulting in a show down between Prathab Chandran group and the A-1 group,
including the incident of hoisting the flag by Prathab Chandran deceased at Nanthampakkam
Surgical Instruments Factory on 19.5.1972.
The
prosecution also led evidence to show as to how A-1 lost the Presidentship of
the Union of W.S. Insulators Employees and Prathab Chandran managed to wield
influence with the labour and members of the union of the W.S. Insulators
Employees when he formed a rival union called W.S. Insulator Workers' and Staff
Union on 6.3.1972. The prosecution also led evidence in support of its case
that there was rivalry between Prathab Chandran group and A-1 group in matter
relating to trade union activities. The prosecution has established on the
record, as was found by the learned Sessions Judge and the Division Bench of
the High Court of Madras, that there was trade union rivalry between A-1 group
and Prathab Chandran group and that A-1 nurtured grudge against Prathab Chandran
deceased. It is also the prosecution case that on 14.6.1972, at the request of Prathab
Chandran deceased, Raju PW-11, gave a draft notice Ex.P-3 to Ganeshan PW-12 for
printing of the pamphlet relating to a meeting to be held under the auspices of
the Welfare Committee at 11.00 a.m. on 18.6.1972 Raju PW-11 gave fifty copies
of the notice to Balaraman PW-22 for distributing the same amongst the workers
and took upon himself to distribute the rest of the pamphlets.
It is
further the prosecution case that on the fateful day, 15.6.1972, Prathab Chandran
deceased left his house for the factory at about 3.30p.m. on his motor-cycle bearing registration No.MDS-9200,
belonging to his brother Ramachandran PW-18, who was then staying with him. Ravindran
PW-13 accompanied the deceased and was riding on the pillion. At about 4.00 p.m. they reached Simpson Factory.
Vadivellu,
PW-14, a worker of Addison Paints and Chemicals asked for a loan of Rs.200 from
the deceased, who promised to give it to him on getting the incentive money.
The deceased signed an incentive slip, Ex.P-9, and gave it to Panchapakesan and
proceeded towards Plant II, where he was working as 801 an Inspector. The
pamphlet relating to the meeting of 18.6.1972, had earlier been distributed by Balaraman
PW-22.
Earlier
at about 3.45 p.m. on 15.6.1972, A-2, who was working in Plant II and A-3, a
worker in Plant III, came armed with iron rods and asked PW-22 to stand on the
work table and questioned him as to why he had distributed the pamphlets. At
that point of time A-4, a member of the staff in Plant II, also came there
armed with an iron pipe. A-2 told A-4 that Prathab Chandran was bound to come
there on hearing that PW-22 had been made to stand on that table and he called
A-5 to A-7 to come there so that when Prathab Chandran comes he should be
finished then and there, as per the "instructions" of Kuchelar A-1.
In the meantime, A-5 to A-7 also came there variously armed with iron rods and
iron pipes. Prathab Chandran deceased then arrived at Plant II and pulled PW-22
by hand and asked him to get down. A-2 then declared that they knew that Prathab
Chandran would come there and that they were waiting for him when A-3 shouted
that they had decided to finish him. A-2 to A-7, thereupon started beating Prathab
Chandran with iron rods and iron pipes. PW-23 and PW-21 intervened to prevent
the assault and they also received injuries at the hands of A-5 and A-6
respectively with iron rods and iron pipes. A-2, A-3 and A-6 gave beating to
PW-21 also and at that point of time Prathab Chandran attempted to escape
through the western entrance of Plant II towards Plant III. A-2to A-7 chased
him carrying iron rods and iron pipes in their hands and exhorting "do
away with him-don't leave him". They obstructed Prathab Chandran at the
entrance to Plant III when Munuswamy PW-19 pleaded with them not to beat Prathab
Chandran. A-4, thereupon, gave a first blow on the nose of PW-19 while A-6 gave
a blow with iron pipe on his back. Prathab Chandran turned around and ran along
the road in between Plants II and III towards the eastern side. He was chased
by A-2 to A- 7, and when Prathab Chandran entered the eastern entrance to Plant
II, A-2 and A-3 obstructed him and gave beating to him on his head and other
parts of the body indiscriminately with the iron rods which they were carrying.
A-4 and A-7 then shouted that the supporters of Prathab Chandran should also be
caught. A-5, however, dropped the iron rod he had with him and left the place.
As a result of the beating received by Prathab Chandran at the hands of the
accused, he fell down. After Prathab Chandran had fallen down, he was put on a
stretcher by PWs 26 and 27 and taken to the first aid room. At the first aid
centre after rendering first aid to the injured the Medical Officer asked them
to rush 802 Prathab Chandran to the General Hospital. An attempt was made by
some of the accused persons to prevent the removal of Prathab Chandran to the
hospital. However, later on, A-5 came there and said that A-1, Kuchelar, had
given permission for the removal of Prathab Chandran to the Hospital, where he
was later on removed in a police van.
PW-38,
the Industrial Relations Officer in Simpson Group of Companies received a phone
call at about 4.30 p.m.
on
15.6.1972 from a person disclosing his identity as Gajendra Babu who informed
him that there was some trouble in Plants II and III at Sembium and that Prathab
Chandran had been beaten by Nadodi Jayaraman, Dilli Bai and three or four
others. PW-38 was further told by the said Gajendra Babu to make arrangements
for taking Prathab Chandran to the Hospital and its was the Industrial
Relations Officer PW-38 who, thereupon, contacted the Police Control Room on
phone and asked them to rush to the Sembium Simpson Group of Companies. Ramachandran,
PW-41, Head Constable on duty in the Police Control Room received a message
from PW-38 at 4.34 p.m. from telephone No.83773 to the effect that the workers
in Plants II and III of Simpson Company at Sembium were engaged in rioting and
immediate action might be taken.
The
message was recorded in the register and communication of the information was
sent to the higher authorities and Police Control Room as well. PW-44 Assistant
Commissioner (Law and Order) Western Range received the message from the
Police Control Room at about 4.35. p.m. on 15.6.1972 and rushed to the main
entrance of the Simpson Group of Companies, Sembium reaching there at about 4.45 p.m. He found that there was a crowd of workers
comprising about 3000 workers shouting slogans and they prevented him from
entering the Simpson Estate. At about 5.10 p.m., the Deputy Commissioner of Police, [Law & Order] North also came
there with some additional force but the crowd still continued to be boisterous
and violent. They pelted stones and brick- bats at the police. The Commissioner
of Police himself arrived at 6.00 p.m.and warned the crowd that if they failed
to give way , he would use force. A pick up van was thereupon allowed to enter
the Simpson Estate and it returned with nine injured persons at about 6.30 p.m. Since, the mob continued to be violent, the
Commissioner of Police ordered a mild lathi charge after the management had
declared that the factory would remain closed on 15th and 16th of June 1972.
Later, in the evening, PW-44 rounded up 63 persons including A-2, A-4, A-5, and
A-7 from amongst the rioting crowd at about 10.00 p.m. and handed them over to Sub-Inspector 803 of Police, [Law
& Order], when he came there in connection with FIR in Crime No.919 of
1972. PW-44 gave a special report, EX-P.42, to Inspector Kothandapani of Crime
Branch, Madras. PW-46 Inspector Dasaratha Raman of
Crime Branch went to the ESI Hospital along with PW-42 and PW-40 and found PW-
23 and Gajendra Babu in Ward No.11. He recorded the statement of PW-23 and
registered a case in Crime No.919 of 1972 relating to FIR Ex.P-45. He directed
the arrest of the six accused persons mentioned in the statement. PW-45 to whom
A-2 and A-5 were handed over by PW-42 took them to the Commissioner's Office at
about 1.00 a.m. on the night intervening 15th and 16th of June 1972 and as they
reached the Commissioner's Office in the van at about 2.00 a.m., A-2 and A-5
jumped from the van and ran towards the canteen inside the Commissioner's
Office with a view to escape. They were chased and since they resisted their
arrest, force was used and they were over-powered. They sustained certain
injuries in that incident. PW-45 gave the special report Ex.P-43 for the said
incident to the Inspector and a case was registered in Crime No.494 of 1972
under Section 224 IPC against A-2 and A-5. The injured A-2 and A-5 were taken
to Kilpauk Medical College for treatment.
At
about 7.30 p.m. on 15.6.1972, PW-33, the Casualty
Medical Officer attached to the General Hospital examined Prathab Chandran and found
him dead. He prepared an injury statement and sent the report, Ex.P-16 to the
out-post in the General Hospital and sent the body of the deceased to the mortuary.
PW-37,
Dr. C.B. Gopalakrishnan conducted post-mortem examination on the dead-body of Prathab
Chandran at about 1.45
a.m. on 16.6.1972, and
found the following injuries of the body of the deceased:
1.
Transverse laceration over front of right knee 3 X 1 cms.
2.
Laceration 2 X 1 cms. oblique over front of middle of right leg.
3.
Laceration 4 X 2 cms. bone deep just above front of right ankle.
4.
Bruising outer aspect of lower portion of middle of right leg 3 X 2 X 1 cms.
5.
Bruising of right ankle and foot outer aspect 6 X 3 X 1 cms.
6.
Laceration of the left ankle near medial mollelus 3 X 2 X 1 cms.
804
7.
Laceration inner aspect of left leg just above the ankle 3 X 2 X 1 cms.
8. 2 cms.
above injury No. 7 laceration 4 X 2 X 1 cms.
9. Contusion
middle of front of left leg 3 X 2 X 1 cms.
10.
Laceration 4 X 2 cms. bone deep over front of left leg below left knee.
11.
Laceration 3 X 2 cms. bone deep front of left knee.
12.
Contusion middle of outer aspect of left forearm 2 X 1 X 1/2 cms.
13.
Contusion 8 X 2 X 2 cms. middle of outer aspect of right arm.
14.
Contusion 12 X 2 X 1 cms. middle of front of right arm.
15.
Laceration 1-1/2 X 1 cms. muscle deep outer aspect of right elbow.
16.
Bruising of lower portion of right arm out aspect 1-1/2 X 1 X 1 cms.
17.
Bruising out aspect of middle of right forearm 5 X 3 X 2 cms.
18.
Bruising outer aspect of front of right side of chest 3 X 2 X 1 cms.
19. 4 cms
below injury No.18, bruising 2 X 1 X 1 cms.
20.
Irregular laceration 3 X 2 cms. bone deep right side of face near right side of
nose.
21.
Laceration frontal region near the inner end of right eyebrow 2 X 1 cms. bone
deep.
22.
Laceration back of left side of frontal region 5 X 2 cms. bone deep fissured
fracture 10 cms.
vertical
of frontal bone extends into base with comminuted fracture of left orbital
plate.
805
23.
Laceration 4 X 1 cms. bone deep verticle right temporal region 2 cms. above
right ear.
24.
Laceration of right occipital region 3 X 1 cms. muscle deep.
25.
Laceration of temporal region just above right ear 1 X 1/2 cms. muscle deep.
26.
Laceration 3 X 2 cms. muscle deep back and middle of lower part of right thigh.
27.
Bruising middle of back of right thigh 4 X 2 cms.
muscle
deep.
28.
Bruising back of middle of left thigh 5 X 3 cms.
muscle
deep.
29.
Bruising right side of abdomen lower part 3 X 1 cms. muscle deep.
30.
Bruising right side of chest 5 X 4 cms. muscle deep
31.
Bruising of right side of back extend into front of chest 10 X 4 cms. muscle
deep.
32.
Bruising top and back of right shoulder 5 X 2 cms.
muscle
deep . Edges of the lacerations were contused. Sub dural haemorrhage over the
whole of left cerebral hemisphere and base of brain subarachnoid haemorrhage
over left frontal region.
Post
Mortem Certificate, Ex.P-26 was issued by the Doctor who opined that the
deceased had died due to shock and haemorrhage on account of multiple injuries
and that injury No.22 was sufficient to cause death in the ordinary course of
nature. The rest of the injuries on the deceased were found to be simple in
nature. The Doctor further opined that subarachnoid haemorrhage over the left
frontal region and subdural haemorrhage over the whole of the left cerebral
hemisphere and the base of the brain were the corresponding internal injuries
to external injury No.22. He went on to add that all the injuries could have
been caused by blunt weapon and that death could have occurred at about 5.10
p.m. on 15.6.1972 and the injuries sustained at about 4.45 p.m. The Doctor also
opined that the deceased could have survived for about an hour and might 806
have become unconscious after the receipt of the head injury i.e. injury No.22.
The Doctor went on to say that all the injuries on the deceased, without injury
No.22, could not have by themselves caused his death and that all those
injuries might have precipitated his death occasioned by injury No.22.
The
story as unfolded by the prosecution at the trial, thus, goes to show that the
occurrence on 15.6.1972 took place in three parts. The first part centres around
the work table incident in Plant No.II when PW-22 was made to stand on the
table and the deceased came there and was attacked by A-2 to A-7. PWs 21 and 23
had also received some beating during this part of the incident. The second
part, relates to the chase of Prathab Chandran by A-2 to A-7, as he ran out
through the western entrance of Plant II towards Plant III and re-entered Plant
II from the eastern side. The third part of the occurrence concerns the
happenings inside Plant II at the eastern entrance where the deceased Prathab Chandran
was assaulted as a result whereof he had fallen down. All the three parts of
the occurrence were sought to be established by the prosecution by producing
more than six eye witnesses. Some of the eye witnesses deposed only about the
first part of the occurrence while the other eye witness deposed about the
second and the third part. The learned Sessions Judge after an appraisal of the
evidence relied upon the testimony of PWs 19, 21, 22, 25, 26 and 27 to hold
that A-2 and A-3 had assaulted deceased Prathab Chandran on account of their
rivalry and that Prathab Chandran succumbed to the injuries caused by all the
accused persons generally and A-2 and A-3 in particular. The learned Sessions
Judge, however, disbelieved the theory of conspiracy as alleged by the
prosecution and also discredited the `exhortations' allegedly uttered by A-1 on
various occasions. He also disbelieved the utterances alleged to have been made
by some of the accused during the first and second part of the occurrence and
opined that various utterances had been attributed to the accused persons with
a view to establish criminal conspiracy and that part of the prosecution
evidence was only an embellishment. None of the accused were found guilty of
the injuries alleged to have been caused by them to some of the prosecution
witnesses. The testimony of the prosecution witnesses was, thus, not accepted
in toto.
Conviction
was recorded only against A-2 and A-3 for an offence under Section 302/34 IPC.
The
Division Bench of the High Court, after reappraisal of the 807 evidence and
hearing learned counsel for the parties at length, found themselves in
`complete agreement' with the learned Sessions Judge in disbelieving the charge
of criminal conspiracy as put up by PWs 4, 7, 10, 20 and 30.
The
High Court did not agree with the submission made on behalf of the appellants
that the acquittal of A-5 to A-7 of all the charges was sufficient reason for
disbelieving the prosecution witnesses against A-2 and A-3 also. After analysing
the evidence, the High Court found that though the learned Sessions Judge was
not justified in accepting the plea of alibi as set up by A-5 but since no
appeal had been filed against his acquittal, the finding of the Sessions Judge
with regard to the acquittal of A-5 could not be interfered with. With regard
to the participation of A-6 and A-7 in the assault, the High Court found,
contrary to the findings of the Sessions Judge, that there was enough material
on the record to establish the participation of A-6 and A-7 but again held that
since no appeal had been preferred against their acquittal, therefore, it was
un- necessary to deal with the question of their participation.
The
High Court noticed that the prosecution witnesses were partisan and therefore
closely scrutinised the evidence of the eye witnesses with a view to determine
the complicity of A-2 and A-3 in the murder of Prathab Chandran deceased. The
Division Bench relied upon the testimony of PWs 19, 21, 22, 25, 26 and 27 and
found:
"absolutely
no hesitation in believing the evidence of these witnesses, though partisan in
character, in as much as they have come forward with the true picture of the
incidents that occurred in Simpson Groups, Sembium on the fateful day." The
High Court then went on to observe:
"Thus,
the evidence let in by the prosecution and discussed above, clearly and clinchingly
proves the complicity of the appellants in the crime. On the basis of the
evidence of the eye-witnesses discussed in the foregoing paragraphs, it can be
safely concluded that it was the appellants who, with iron rods, dealt blows on
the head of Prathab Chandran at the entrance of Plant II, which, according to
the prosecution is the third part of the occurrence." and then after discussing
the medical evidence confirmed the conviction and sentence imposed upon both
the appellants.
808
M/s. N.T. Vanamamalai and R.K. Garg, the learned senior advocate, who have
appeared for the appellants before us vehemently argued that since the main
charge of conspiracy against all the accused had failed, the witnesses who had
supported that charge could not be believed to sustain the conviction of A-2
and A-3. Learned counsel argued that A-2 and A-3 had been falsely implicated,
since they were leaders of the rival Union and on the basis of material on
record their implication with the aid of Section 34 IPC was in fact an attempt
to finish the union and the partisan prosecution witnesses had a motive to
falsely implicate them. Learned counsel emphasised that the absence of names in
the FIR Ex.38 was indicative of the fact that scope had been left therein so as
to implicate non-assailants also and A-2 and A-3, were falsely implicated on
account of trade union rivalry. Great emphasis was laid by learned counsel for
the appellants on the partisan character of the eye witnesses and it was urged
that with the acquittal of A-1 and A-4 to A-7 of all the charges, the
conviction of A-2 and A-3 had also become vulnerable and since the prosecution
witnesses had been disbelieved qua A-1 and A-4 to A-7 even with regard to the asault
on Prathab Chandran, they could not be relied upon to convict the appellants.
That Prathab
Chandran died on account of the injuries received by him in the occurrence on
15th June 1972, is not in dispute. It also is not a matter of conjecture to say
that the prosecution witnesses are partisan in character. As a matter of fact,
both the learned Sessions Judge as well as the Division Bench of the High Court
were conscious of the fact that the eye witnesses were partisan in character
and it was for that reason that both the courts had scrutinised their evidence
closely and in great details in order to satisfy themselves with regard to the
truth or otherwise of their evidence in so far as the involvement of A-2 and
A-3 is concerned. We are in agreement with the appraisal of evidence by the
High Court. This Court, in an appeal by special leave, when the two courts
below have concurred in their conclusions does not ordinarily reassess the evidence
and we, therefore, had to decline the invitation of the learned counsel for the
appellants to reappraise the entire evidence the third time. We, however, with
a view to satisfy ourselves about the nature of the offence, in the facts and
circumstances of the case, scrutinised those parts of the deposition of the
prosecution witnesses which dealt with the assault on Prathab Chandran
deceased. After going through the relevant evidence and hearing learned counsel
for the parties, we are of the view that the conclusion, with 809 regard to the
assault on the deceased by A-2 and A-3, as recorded by the learned Sessions
Judge and confirmed by the learned Division Bench is based on proper appraisal
of the evidence and is sound. The High Court took pains and made conscientious
efforts to scrutinise the evidence relating to the complicity of A-2 and A-3
and rightly rejected the argument that since some of the co-accused had been
acquitted, against whose acquittal no appeal had been preferred by the State,
the evidence of the prosecution witnesses so disbelieved could not be relied
upon to sustain the conviction of A-2 and A-3 either. This Court has time out
of number pointed out that the Maxim falsus in uno falsus in omnibus cannot be
mechanically applied and the mere fact that the evidence of some of the
prosecution witnesses was found unsafe for convicting the co-accused, is by
itself no ground for rejecting the whole body of their testimony. It only puts
the court on its guard to carefully scrutinise their evidence. As already
notice, we are satisfied with the appraisal of evidence by the courts below and
find no reason to doubt the involvement of A-2 and A-3 is so far as the assualt
on Prathab Chandran deceased is concerned.
Faced
with this situation, learned counsel for the appellants argued that the
conviction of both the appellants for an offence under Section 302/34 IPC was
in the facts and circumstances of the case not sustainable. It was submitted
that it could not be said with any amount of certainty that the blow given by
A-2 or A-3 was by itself fatal or who out of the two caused the fatal blow as
that the same was caused with the intention of causing death. It was submitted
that though the deceased had suffered as may as 32 injuries, it was only one
injury which had proved fatal according to the medical opinion and therefore
the appellants could not be attributed with the intention of causing such
bodily injury either which could cause the death and therefore their conviction
for an offence under Section 302/34 IPC was not warranted. Learned counsel emphasised
that the nature of injuries, taken as a whole could only clothe A-2 and A-3
with the intention to give beating to the deceased and not with any intention
to kill him and they could be held guilty for an offence under Section 325/34
IPC only.
In
cases, where large number of persons are involved and in the commotion injuries
are caused to the prosecution witnesses and others, it becomes the duty of the
court to determine the common intention which could be attributed to those
accused who stand convicted, where some of 810 their co-accused stand acquitted
and the State chooses not to file any appeal against their acquittal. With a
view to determine the common intention, the nature of injuries, the background
of the incident and the nature of the weapons used to cause the injuries
besides other factors are required to be properly considered and appreciated.
The
manner in which the occurrence in three parts took place has been adverted to
by the prosecution witnesses.
They
have deposed about the assault on the deceased in the different parts of the
occurrence and the role played by A-2 and A-3. According to Gopal Krishnan,
PW-21 in the first part of the occurrence, "all the six of them [accused]
beat Prathab Chandran alternatively". He then narrated about the chase
given to Prathab Chandran by all the six accused and stated that at Plant III,
A-2 and A-3 gave injuries to the deceased. To the similar effect is the
statement of PW- 22 Balaraman, who stated that "these six persons [A-2 to
A- 7] beat Prathab Chandran by iron rods and iron pipes and the beating fell on
him". He also deposed that at the entrance of gate to Plant No.III, A-2
and A-3 caused injuries to the deceased. K. Krishnan, PW-24, deposed that when Prathab
Chandran had been assaulted by all the accused and ran towards Plant III, he
was chased by all of them carrying iron rods and pipes in their hands. Subramaniam,
PW-25, also deposed to the same effect as PW-21. Ganpatilingam, PW-26, apart
from stating that all the six persons A-2 to A-7 gave beating to the deceased Prathab
Chandran and that A-2 and A- 3 gave him beating alternatively, when he entered
Plant II also deposed that A-2 and A-3 had even threatened those who were
trying to carrying the deceased on a stretcher to the Hospital, which part of
the story was rightly not believed by the courts below. Raman, PW-27, deposed
that "the above said six persons beat Prathab Chandran repeatedly with
rods and pipes." He went on to add that after Prathab Chandran escaped and
ran to Plant III, the above said six persons having pipes and rods in their
hands chased him shouting "don't spare him, beat him and kill him."
This witness, however, gave a lie to the statement of the earlier witnesses
when he deposed that when he was carrying the stretcher, he was not obstructed
by accused A-2 and A-3. PW- 38 R. Vishwanathan, who was the Industrial
Relations Officer of the Simpson Group of Companies at the relevant time and
was the person who telephoned the Police and set the investigating agency into
motion, while deposing as to how he was informed on telephone about the
occurrence stated that Gajendra Babu had telephoned to him and said:
811
"Nadodi Jayaraman, Delli Bai and three or four workers beat Prathab Chandran.
When I tried to prevent I was also beaten. Inform police and make arrangements
to take Prathab Chandran to hospital." Gajendra Babu, who telephoned to
PW-38, had appeared as a witness during the inquest proceedings and his
statement was recorded, which forms a part of the Inquest Report, Ex.P-46. He
had stated that the six accused had joined together and given beating to Prathab
Chandran and that those who tried to prevent assault on the deceased were also
beaten. Referring to the third part of the occurrence, he stated that
"again these six people, pushed Prathab Chandran with iron rods, shouting
don't leave him, kill him." From the evidence as noticed above, it emerges
that according to the prosecution case itself the injuries were caused to the
deceased Prathab Chandran not only by A-2 and A-3 but by the other accused
also, who stand acquitted. In the face of this evidence it cannot be postulated
that the two appellants alone caused all the injuries to the deceased and that
too with the common intention to cause his death. A critical analysis of the
injuries received by the deceased, which have been extracted elsewhere in the
judgment, goes to show that the deceased had suffered 15 lacerations, 12
bruises and five contusions. Injuries 1 to 11 had been caused on his legs,
knees, ankle etc., while injuries 26 to 29 were on the thigh and lower part of
the abdomen. Injuries 12 to 17 and 32 had been cause on the forearm, elbow and
the possibility of those injuries having been received by the deceased while trying
to ward off the blows on the vital parts of his body cannot be ruled out. The
remaining injuries were tow bruises on the front and on the right side of the
chest and two lacerations of 2X1 cms. near the right side of the nose and the
inner end of the right eyebrow.
There
were two lacerations on the right temporal region and one on the right
occipital region. It was only injury No.22 viz. "laceration on the back of
the left side of the frontal region, 5X2 cms. bons deep, fissured fracture 10 cms.
vertical of frontral bone, extending to base with communated fracture of the
left orbital place", which was found to be sufficient to cause death in
the ordinary course of nature.
According
to the medical witness all the injuries, except injury no.22, were simple in
nature and could not have by themselves caused death but those injuries could
have precipitated the death.
812
Since, the evidence of the prosecution unmistakably asserts that injuries had
been caused to the deceased by all the six accused and some injuries had been
caused exclusively by A-2 and A-3 alternatively, during the third part of the
occurrence, it cannot be said with certainty that the intention of the accused
was to cause death of Prathab Chandran deceased. This is more so because
according to the medical evidence the deceased had died "due to shock and haemorrhage
on account of multiple injuries", and according to the prosecution version
all the seven accused had caused the injuries and not only A-2 and A-3. The
accused party was armed according to the prosecution evidence, with iron rods
and pipes and not with any other lethal weapon. If the accused had the
intention to cause death of the deceased, they would have probably come armed
with more formidable weapons. Again, looking to the nature of injuries, which
except for injury No.22, were only simple and no other grievous injury was even
caused, it appears to us that the accused possibly wanted to chastise the
deceased for his trade union activities. The seat of the injuries as also their
nature fortifies our view. According to the prosecution case itself, after Prathab
Chandran had fallen down in the third part of the incident, none of the accused
took advantage and caused any other injury to him. Most of the injuries, as
already noticed, were on non-vital parts of the body. From the evidence and
circumstances of the case, the appellants do not appear to have had the
intention causing the death of the deceased or even causing such bodily injury
as was likely to cause death. They can at the best be attributed with the
knowledge that their act was likely to cause death or to cause such bodily
injury as was likely to cause death, since a number of injuries had been caused
and injury No.22 was sufficient in the ordinary course of nature to cause
death. It is not as if A-2 and A-3 alone were armed with iron rods and pipes,
with which the injuries were caused and their acquitted co-accused were
unarmed. The acquitted co-accused, according to the prosecution evidence, were
also armed with iron rods and pipes and as such it would be hazardous to guess
as to which blow was caused by which accused. If common intention to cause
death had been established in the case, prosecution would not have been
required to prove which of the injuries was caused by which accused to sustain
the conviction of the accused with the aid of Section 34 IPC, but in a case
like this, where five of the co-accused stand acquitted and the common
intention to cause death is not established beyond a reasonable doubt, the 813
prosecution must establish the exact nature of the injuries caused to the
deceased by the accused with a view to sustain the conviction of that accused
for inflicting that particular injury. The evidence on the record does not lead
to the conclusion that A-2 and A-3 alone caused all the injuries to the
deceased with the intention to cause his death. The broad circumstances of the
case impel us to hold that the common intention of A-2 and A-3 was not to cause
the death of the victim and therefore neither of them can be held guilty of the
offence under Section 302/34 IPC. Since, the deceased did succumb to the
injuries, caused collectively, the appellants can only be held guilty of
committing culpable homicide not amounting to murder. The act can be said to
have been committed by the accused with the knowledge that it was likely to
cause death or to cause such bodily injury as was likely to cause death of Prathab
Chandran. Learned counsel for the appellants have not been able to persuade us
to subscribe to the view that A-2 and A- 3 can only be clothed with the
intention of causing grievous hurt, punishable under Section 325/34 IPC. The
offence of the appellants would, in our opinion, squarely fall under Section
304 Part II IPC. Thus, setting aside the conviction of the appellants for an
offence under Section 302/34 IPC, we alter their conviction and hold them both
guilty of the offence under Section 304 Part II IPC.
Coming
now to the question of sentence. The occurrence took place almost two decades
ago, on 15th June 1972. The appellants faced the trial and
were convicted by the learned Sessions Judge Vide Judgment dated 29th March
1975 and thereafter their appeal against conviction and sentence remained
pending and was dismissed by the High Court on 15th September 1976. Special
leave was granted on Ist February 1978, and on 28th November 1978, the appellants were directed to be released on bail vide
this Court's order made in Criminal Misc. Petition No.2495 of 1978. On behalf
of the appellants, we were informed that as under-trial prisoners and during
the trial and on conviction, each of the appellants had suffered imprisonment
for more than five years. In our opinion, therefore, it is not now desirable to
sent the appellants back to jail after they have been on bail also for more
than a decade and during this period, nothing has been brought to our notice to
show that they had indulged in any criminal activity. Therefore, while
convicting them for the offence under Section 304 Part II IPC, we sentence each
of the appellants to suffer rigorous imprisonment for the period already
undergone by them.
814 To
the limited extent noticed above, both the appeals shall stand allowed. The
appellants need not surrender to the bail bonds which shall stand discharged.
T.N.A.
Appeals allowed.
Back