Madras High Court
Mala vs State Rep. By on 23 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 CRL.A.(MD)No.785 OF 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R. POORNIMA
CRL.A.(MD)No.785 of 2024
Mala ... Appellant / Accused No.2
Vs.
State rep. By
The Inspector of Police,
Thiruppanandal police station,
Thanjavur District.
(Crime No.231 of 2018) ... Respondent / Complainant
Prayer: Criminal Appeal filed under Section 374(2) of
Cr.P.C. r/w. Section 415(2) of BNSS, to call for the records in S.C.No.
94 of 2019 on the file of the learned Additional District and Sessions
Judge (Fast Track Court), Kumbakonam, Thanjavur District and set
aside the judgment dated 30.07.2024 and acquit the appellant of the
charges levelled against her.
For Appellant : Mr.Chellapandiyan,
for Mr.C.Suresh Kannan.
For Respondent : Mr.T.Senthilkumar,
Additional Public Prosecutor.
***
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2 CRL.A.(MD)No.785 OF 2024
JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
This appeal is directed against the judgment dated
30.07.2024 made in S.C.No.94 of 2019 on the file of the Additional
District and Sessions Judge (Fast Track Court), Kumbakonam.
2. Mariyappan @ Kalaiselvan(A1) and his wife Mala(A2)
were prosecuted in this case. Charge framed against Mariyappan
(A1) was under Section 302 r/w. 34 IPC. Charge framed against the
second accused Mala was under Section 302 IPC. By the impugned
judgment, the first accused was acquitted and the second accused
was found guilty under Section 302 IPC and was sentenced to
undergo life imprisonment and to pay a fine of Rs.5,000/- in default,
to undergo simple imprisonment for one year. Challenging the same,
the second accused filed this appeal.
3. The case of the prosecution is as follows:-
Mariyappan @ Kalaiselvan (A1) and Senthilkumar
(deceased) were brothers. They were neighbours. Both were
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residing at Kudiyana East Street, at Kurukur. On 15.12.2018 at
around 8.00 pm. Senthilkumar went to the house of the first accused
and demanded the property document pertaining to their ancestral
house. The first accused got angry and started shouting. The second
accused intervened. Thereupon, Senthilkumar told the second
accused not to interfere and pushed her away. Angered by the same,
A1, A2 and their son(juvenile)(A3) pushed Senthilkumar down. A1
held down Senthilkumar. A2 and A3 hit him repeatedly with sticks.
This was witnessed by the wife of Senthilkumar (Suganthi, defacto
complainant herein) and their children. Senthilkumar was grievously
injured and he was rushed to Government Hospital, Kumbakonam.
Senthilkumar soon died. The statement of Suganthi (Ex.P.1) was
recorded by (PW15) Special Sub Inspector of Police at Government
Hospital, Kumbakonam. He came back and registered Crime No.231
of 2018 on the file of Thiruppanandal police station for the offences
under Section 294(b), 341 and 302 IPC. P.W.16 was the Inspector of
Police. She took up investigation and went to the spot on the next day
at 5.35 am. and prepared observation mahazar and rough sketch. She
collected blood stained soil sample and blood stained wooden logs
under Ex.P.16 seizure mahazar. She examined the witnesses and
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recorded their statements. She conducted inquest from 9.30 am. to
11.30 am. and went to Government Hospital, Kumbakonam to hand
over the body for postmortem. A1 was arrested at around 1.00 pm.
On 14.12.2018, confession was also recorded and based on the
disclosure statement, wooden log was recovered under Ex.P.18.
Since the son of A1 and A2 was a juvenile, he was produced before
the Juvenile Justice Board. The investigation was continued by
P.W.17, who after obtaining the forensic reports, filed final report
before the Judicial Magistrate No.I, Kumbakonam. It was taken on file
in P.R.C.No.15 of 2019 and committed to the Principal Sessions
Court, Thanjavur. It was then made over to the Additional District
and Sessions Judge (Fast Track Court), Kumbakonam in S.C.No.94 of
2019.
4. The prosecution examined as many as 17 witnesses and
marked Ex.P.1 to Ex.P.22. M.O.1 to M.O.6 were also marked. On the
side of the accused, 3 doctors D.W.1 to D.W.3 were examined and
Ex.B.1 discharge summary of the second accused was marked. Ex.C.1
to Ex.C.3 were marked. After examining the evidence on record, the
trial Court by the impugned judgment dated 30.07.2024 acquitted
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the first accused but convicted the second accused (appellant herein)
under Section 302 IPC. Challenging the same, this criminal appeal has
been filed.
5. The learned Senior counsel appearing for the appellant
pointed out that except P.W.2 (wife of the deceased), all the other
material witnesses turned hostile. He also pointed out that P.W.2 had
testified that the accused threw chilli powder on the eyes of the
deceased. This was a clear exaggeration and it was not stated during
police investigation. He also added that P.W.2 did not even identify
the material objects with which the attack was carried out. Instead,
she stated that the deceased was attacked with stick which was
being held by the first accused. His core argument was that there is
no evidence to show that the appellant caused the vital injuries. He
therefore called upon this Court to set aside the impugned judgment
and acquit the appellant.
6. Per contra, the learned Additional Public Prosecutor
submitted that the impugned judgment is well reasoned and it does
not call for interference.
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7. We carefully considered the rival contentions and went
through the evidence on record.
8. The specific case of the prosecution is that the appellant,
her husband and their son jointly attacked the deceased with
wooden logs and caused his death. Since the son of the appellant was
a juvenile, he was tried separately before the Juvenile Justice Board.
Before the Court below, only the husband and wife were prosecuted.
The first accused was charged under Section 302 r/w. 34 IPC. But the
second accused was charged only for the offences under Section 302
IPC. The first accused was acquitted. For obvious reasons, she could
not have been tried along with the juvenile accused.
9. Before the Court below, the appellant took the plea of
alibi. She claimed that she was gored by a bull and that she had gone
to a local hospital at 7.30 p.m. on 15.12.2018. First aid was given by
Dr.Senthamilselvan who was examined as D.W.1. He referred her to
Government Hospital, Kumbakonam. The appellant admitted herself
in Government Hospital, Kumbakonam at 8.40 p.m. on 15.12.2018.
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DW3 attended her. The Court below however rejected the plea of
alibi by giving convincing reasons as to why the plea of alibi could
not be accepted. Admittedly, D.W.1 claimed to have treated the
appellant in his private clinic at 7.30 p.m. on 15.12.2018. But the
prescription issued by D.W.1 is dated 13.12.2018. Thus the
testimony of D.W.1 is not in consonance with the document issued by
him (Ex.B.1). It is true that Ex.B1 indicates that the appellant was
admitted in Government Hospital, Kumbakonam at 8.40 p.m. on the
said date. The Court below found quite a few corrections and
overwriting in the hospital entries. While D.W.1 had claimed that the
appellant was suffering from swelling, D.W.3 mentions it as torn
injury.
10. The Court below came to the conclusion that the
appellant sustained injuries during the occurrence and thereafter,
admitted herself in Government Hospital, Kumbakonam. In any
event, the learned Senior counsel appearing for the appellant did not
press the plea of alibi before us. Therefore, we do not wish to
consider the defence originally taken by the accused before the Court
below.
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11. It is true that IPC fastens vicarious liability under two
provisions; Section 34 and Section 149 IPC. The Hon'ble Supreme
Court in its decision reported in (2023) 10 SCC 181 (Chandra
Pratap Singh v. State of M.P.,) held as follows:
“18. In Chittarmal v. State of Rajasthan
(2003) 2 SCC 266, this Court dealt with the
conversion of charge from Section 302 read with
Section 149 IPC, to Section 302 read with Section 34
IPC. Para 14 of the said decision reads thus : (SCC p.
273)
“14. It is well-settled by a catena of
decisions that Section 34 as well as Section
149 deal with liability for constructive
criminality i.e. vicarious liability of a person
for acts of others. Both the sections deal
with combinations of persons who become
punishable as sharers in an offence. Thus
they have a certain resemblance and may to
some extent overlap. But a clear distinction
is made out between common intention and
common object in that common intention
denotes action in concert and necessarily
postulates the existence of a prearranged
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plan implying a prior meeting of the minds,
while common object does not necessarily
require proof of prior meeting of minds or
preconcert. Though there is a substantial
difference between the two sections, they
also to some extent overlap and it is a
question to be determined on the facts of
each case whether the charge under Section
149 overlaps the ground covered by Section
34. Thus, if several persons numbering five
or more, do an act and intend to do it, both
Section 34 and Section 149 may apply. If the
common object does not necessarily involve
a common intention, then the substitution of
Section 34 for Section 149 might result in
prejudice to the accused and ought not,
therefore, to be permitted. But if it does
involve a common intention then the
substitution of Section 34 for Section 149
must be held to be a formal matter. Whether
such recourse can be had or not must
depend on the facts of each case.“ ''
Further, in the decision reported in AIR 2004 SC 2764 (State of M.P.
V. Deshraj), the Hon'ble Supreme Court held as follows:-
“ 5. Section 34 has been enacted on the
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principle of joint liability in the doing of a criminal act.
The section is only a rule of evidence and does not
create a substantive offence. The distinctive feature of
the section is the element of participation in action.
The liability of one person for an offence committed
by another in the course of criminal act perpetrated
by several persons arises under Section 34 if such
criminal act is done in furtherance of a common
intention of the persons who join in committing the
crime. Direct proof of common intention is seldom
available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
In order to bring home the charge of common
intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there
was a plan or meeting of minds of all the accused
persons to commit the offence for which they are
charged with the aid of Section 34, be it prearranged
or on the spur of the moment; but it must necessarily
be before the commission of the crime. The true
content of the section is that if two or more persons
intentionally do an act jointly, the position in law is
just the same as if each of them has done it
individually by himself. As observed in Ashok
Kumar v. State of Punjab [(1977) 1 SCC 746 : 1977 SCC
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(Cri) 177 : AIR 1977 SC 109] the existence of a
common intention amongst the participants in a crime
is the essential element for application of this section.
It is not necessary that the acts of the 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.
6. ... As was observed in Chinta Pulla
Reddy v. State of A.P. [1993 Supp (3) SCC 134 : 1993
SCC (Cri) 875 : AIR 1993 SC 1899] Section 34 is
applicable even if no injury has been caused by the
particular accused himself. For applying Section 34 it
is not necessary to show some overt act on the part of
the accused. ”
Thus, if pursuant to the common intention, a criminal act is carried
out, then every person who shares such common intention would be
equally liable. However, in the case on hand, the appellant was
charged with Section 302 IPC and Section 34 was not invoked against
her. Only the first accused was charged with the offence under
Section 302 IPC r/w. 34 IPC.
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12. P.W.2, who is the only witness who supported the
prosecution, admitted that her husband was under the influence of
alcohol even at the time of the occurrence. The postmortem report
(Ex.P.12) revealed that alcohol was present in his body. It was
Senthilkumar who went to the house of the accused and quarreled
regarding the property document at around 8.00 pm. The first
accused had fallen from a tree some years ago and was not in a
position to walk without support. He had become paralyzed below
his hip. He could walk only with the aid of a stick. When
Senthilkumar picked up quarrel with A1, his wife and son intervened.
Senthilkumar admittedly had pushed down A2. A2 and her juvenile
son attacked Senthilkumar which led to his death.
13. P.W.13 who conducted postmortem had noted that as
many as 9 injuries were found on the body of the deceased. He had
suffered injuries on his left cheek and left side of neck and left
shoulder. His skull suffered as many as three serious fractures. Jaw
was also fractured. These injuries obviously led to the death of
Senthilkumar. Of course P.W.2 had not specified who inflicted the
fatal injuries. It has not been established that the accused had any
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common intention to cause the death of Senthilkumar. When Section
34 or Section 149 IPC has not been invoked, the accused has to bear
responsibility only for her acts and not that of others. It had been
mentioned that A2 attacked the deceased on his chest and jaw, while
the juvenile son attacked the deceased on his head. From this, it can
be inferred that the deceased suffered fracture in the jaw on account
of the act of the appellant. The appellant's participation in the
occurrence has been established beyond reasonable doubt.
Therefore, we are inclined to convict the appellant for the lesser
offence of causing grievous hurt under Section 326 IPC.
14. The learned Senior counsel tried to argue that the
appellant exercised her right of private defence. We reject this
argument. Though the deceased was drunk, he was admittedly not
armed with any deadly weapon. When the appellant came in
between the deceased and A1, the deceased pushed A2 down. Such
an act on the part of the deceased did not merit such a brutal
response in the form of attack with wooden logs on the vital parts of
the body.
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15. Merely because the witness had not specifically
testified as to who inflicted the fatal injury, the appellant cannot be
acquitted. We are satisfied that interest of justice would be met if the
appellant is sentenced to three years rigorous imprisonment alone.
The appellant is acquitted of the charge under Section 302 IPC and
she is convicted for the lesser offence under Section 326 IPC. She is
sentenced to three years rigorous imprisonment and the fine levied
by her is maintained. This impugned judgment is accordingly
modified. This criminal appeal is partly allowed. No costs.
(G.R.SWAMINATHAN, J.) & (R. POORNIMA, J.)
23rd January 2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The Additional District and Sessions Judge
(Fast Track Court),
Kumbakonam, Thanjavur District.
2. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
AND
R.POORNIMA, J.
PMU
23.01.2025
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