Full Judgment Text
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PETITIONER:
NADODI JAYARAMAN ETC.
Vs.
RESPONDENT:
STATE OF TAMIL NADU
DATE OF JUDGMENT28/04/1992
BENCH:
ANAND, A.S. (J)
BENCH:
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.
HEADNOTE:
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
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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
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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]
JUDGMENT:
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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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.
815