Swaminathan & ANR.
Vs. State of Tamil Nadu
OR D E R
At about 9.30 a.m. on
the 5th April, 1994 A.1Ramasamy came to the wine shop of PW.3 Muthu Selvin and enquired
if his uncle Velan was present in the wine shop. At that time Palanisamy
deceased came riding a bicycle and dashed against A.1. The same evening at
about 3.00 p.m. Palanisamy was going towards the field of Alagesan and as he
was passing in front of the house of A.1., A.1 came out and shouted at him and
thereafter lifted a stick and hit him on the head. A.2 Swaminathan and A.3
Raman who were standing close by picked up stones lying on the spot and hit the
deceased on the cheek and forehead respectively. The incident was witnessed by
PW.1 Narayanan.
He went and informed Ganesan,
the brother of the deceased, and thereafter returned to the place of incident
and found that Palanisamy was dead. He accordingly lodged the report at Police
Station Theevattipatti, and case under Section 302was registered at about 4.30
p.m. The dead body was also subjected to a post mortem examination and nine
injuries -2-were detected thereon, seven allegedly caused by a lathi and two by
stones. The Doctor also opined that the death had been caused by a lathi injury
and that the fatal injury was injury No.1.
The Trial Court
relying on the evidence of PW.1 (Narayanan), the only eye-witness, convicted
the accused A.1 under Section 304 Part II and sentenced him to undergo three
years' rigorous imprisonment. A.2 and A.3were convicted and sentenced for the
same offence and term with the aid of Section 34 of the IPC. An appeal was thereafter
taken to the High Court which has confirmed the conviction and sentence awarded
by the Trial Court.
The present appeal
has been filed by A.2 and A.3alone. Mr. K.K. Mani, the learned counsel for the
appellants has raised only one argument before us. He has urged that even
accepting the prosecution story in its entirety the vicarious liability under
Section 34 of the IPC could not be fastened on A.2 and A.3 as the facts did not
indicate so.
He has pointed out
that the incident had happened all of a sudden when Palanisami was passing by
the house of A.1and there was absolutely no pre-planning and that he too had
caused several blows after picking the lathi from the spot. It has also been
submitted that the common intention on the part of A.2 and A.3 had also not
made out as they had come to the spot by chance and there was no prior meeting
of minds, and they had caused one simple injury each on the person of the
deceased with stones picked up from the site. He has accordingly submitted that
the conviction of the two appellants with the aid of Section 34 was not called
for. We have heard the learned counsel for the parties and also gone through
the evidence. Concededly, as per the post mortem report, injury No.1 on the person
of the deceased was the fatal injury and had been caused by with a lathi.
There is also no
reference whatsoever to any involvement of A.2 and A.3 in the incident in the
morning. It appears that A.2 and A.3 who had been either passing by or were near
the spot picked up stones on the spur of the moment and caused a simple injury
each. It is therefore evident that A.2 and A.3 could not have had the knowledge
of involvement of A.1 in a situation where death could be caused. We therefore
feel that the conviction of A.2 and A.3 with the aid of Section 34 was not
called for. We accordingly allow the appeal and order their acquittal. Their
bail bonds shall stand cancelled.
.................J.
(HARJIT SINGH BEDI)
..................J.
(CHANDRAMAULI KR. PRASAD)
New
Delhi,
January
12, 2011.
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