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CASE NO.: Appeal (crl.)  1149 of 2002

PETITIONER: Krishnan and Anr.        O. Ayyar Thavar  and Anr.                                        

RESPONDENT: Vs. State Rep. By Inspector of Police                        State Rep. By Inspector of Police        

DATE OF JUDGMENT: 28/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

       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 was confirmed.  

       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

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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 p.m. Post  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 held.  

       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 the case.

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       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  probable.

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

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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 "constant".                   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.  

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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 Maxwell,  p.340(342).

       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 emotional response.   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

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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

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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 149).  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  provision.  

       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.