Krishnan And Anr vs State Rep. By Inspector Of Police

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

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.

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

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.

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

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

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.