In Re, Veera Koravan

The three appellants have been convicted by the Additional Sessions Judge of Coimbatore of the offence of the murder of one Muthusami Asari under Sect. 302 Indian Penal Code. The 1st accused has also been charged with the offence of voluntarily causing grievous hurt, under Sect. 325 Indian Penal Code and the third accused of the offence under Sect. 324 Indian Penal Code. All the four assessors were of opinion that the three accused were guilty of murder under Sect. 302, Indian Penal Code and the learned Additional Sessions Judge agreed with the said opinion.

The prosecution case is that at about 7 P.M, on Saturday, the 15th December, 1928, the deceased Muthusami Asari P. W. 1 and P. W. 18 were returning to Nallgoundan palayam from Gobichettipalayam, that, when Muthusami Asari came opposite to the third accused's garden, the third accused shouted to accused 1 and 2 that they had caught Muthusami Asari after all, that accused 1 and 2 bodily carried away Muthusami Asari into the third accused's garden and that Muthusami Asari was beaten to death with sticks and bala by the three accused. The plea of the accused on the other hand is that Muthusami Asari was inimical to the third accused and that, when he saw the third accused at the third accused's garden on the evening in question, he (Muthusami Asari) entered the garden and after fixing on a spearhead to a stick, which he had in his possession, went after the third accused who however ran into the garden and shut himself up in a hut in the said garden, that the first accused, a servant of the third accused, resisted Muthusami Asari, that there was a scuffle between Muthusami Asari and the first accused the result of which was that the first accused received a spear-wound on his back, inflicted by Muthusami Asari and that in self-defence Muthusami Asari was beaten and he finally fell to the ground and died in the garden.

The question for decision is which of the two versions is supported by the evidence in the case. Considering the prosecution version first, we have got the following facts established by the evidence on the record:

1. The third accused was on terms of criminal intimacy with P. W. 10, the wife of the deceased Muthusami Asari and that about two years ago, the third accused's wife brought that matter to the notice of Muthusami Asari who beat P. W. 10 and sent her away to her mother's house. It would seem that after about six months, Muthusami's sister took back P. W. 10 to Muthusami's house. It is in evidence however that the third accused made fresh overtures to her, which however were unsuccessful, P. W. 10 sending word in reply that she had already got beaten for her previous misconduct with the third accused and that her husband might murder her, if she again went to the third accused.

2. It is in evidence that the third accused and Muthusami had jointly borrowed money from a bank, that the bank filed a suit against both and got a decree in execution of which Muthusami was arrested and the entire decree amount realised from him. Muthusami subsequently filed a suit for contribution against the third accused and got a decree, in execution of which he arrested the third accused by the issue of a warrant and the decree amount was realised only after the third accused was thus arrested.

3. About 15 days before the occurrence in question, the third accused had preferred a complaint of theft of a leather-bucket against Muthusami, Muthusami's contention being that the complaint was an absolutely false one.

Thus three motives are suggested for the prosecution, for the third accused being dissatisfied with Muthusami. It is no doubt true, as pointed out by the learned Counsel for the appellants, that ordinarily the first of the three motives mentioned above might be a ground for Muthusami doing something towards the third accused; but as was suggested in the evidence, the third accused being bent upon having P. W. 10 would probably take steps to have Muthusami out of the way, so that he may have the obstacle towards his having P. W. 10 removed.

Having mentioned the evidence as regards the motive, we propose to consider the direct evidence as to what happened on the evening of the 15th December. We have got the evidence of P. W. 1, the brother-in-law of Muthusami, of P. W. 18 the uncle of Muthusami and of P. W. 17 the karnam of a neighbouring village, as eye-witnesses to the incident. We have also the evidence of P. W. 6 a Muhammadan, P. W. 9 a Goundan and P. W. 16 a Pandaram also supporting the prosecution case. We may mention here that the deceased was a carpenter (Asari), that the first and the second accused are koravars by caste and that the third accused is a Goundan. When P. Ws. 1 and 18 were returning from Gobichettipalayam and were opposite the third accused's garden, the first and the second accused, at the instance of third accused, carried away Muthusami Asari. When P. W. 1 saw that, he and P. W. 18 followed them to a little distance into the garden and begged of the accused to leave Muthusami Asari. The third accused asked them to get away. P.W.1 immediately ran to the house of Muthusami Asari a few furlongs off the garden and told his mother and wife about what he saw, and all of them returned to the garden in a short time. As stones were thrown at the gate of the garden by somebody from inside, P. W. 1 could not get inside the garden. P. W. 1 however says that he hoard the cries of “Ayyo, Appa, my life is going” from Muthusami Asari and that he went to the village moniagar, P. W. 19. Not finding the moniagar in his house, P. W 1 went to the moniagar's garden, where he waa told the moniagar was; and not finding him in the garden either, he went to the temple, to which place it was said the moniagar had gone; not finding the moniagar in the temple, P. W. 1 went again to the moniagar's house and stayed there and the moniagar returned to his house shortly after. The information given by P. W. 1 is Ex. A. It was recorded by the Village Magistrate at about 10 O'clock, on the night of the 15th December. It gives the essential facts to which he deposes in Court and mentions the names of all the three accused. The moniagar shortly afterwards received complaints from accused 1 and 3 who also went to him and complained that night. Ex. N given by the first accused is timed 11-30 O'clock as also Ex. O given by the third accused. After sending information to the Police and the Magistrate, the Village Munsif came to the scene of offence—the third accused's garden—and'found Muthusami Asari lying there dead. He reached the garden at about 1 A.M He accordingly sent information about the death to the Magistrate and to the Police: (see Exs. Q and Q-1). The first accused was sent to the Assistant Surgeon to have the wound on his back attended to. P. W. 18 supports P. W. 1 and states further that while P. W. 1 went to the house of the deceased Muthusami Asari, he (P. W. 18) remained with Muthusami Asari in the third accused's garden and that Muthusami Asari, after being carried into the garden, was belaboured by the three accused. He says “I cried out not to beat him. The first accused gave me two or three blows, which fell on my left elbow and left shoulder. The third accused stabbed me on my right elbow Haying” Do not make noise.” He asked me to sit down and not to make any noise. I accordingly sat down at a distance of about two mars to the south of the place of beating.” He describes the part taken by each of the accused in beating and killing Muthusami Asari. He speaks to the second accused beating the deceased with a yoke and as a result of the beating, the yoke breaking into pieces. He also says that the third accused stabbed Muthusami Asari with his bala. It may be stated that P. W. 18 was wounded and the wound certificate, which he got, mentions an incised wound two inches by half-an inch on the back of the middle of the forearm, in addition to three contused swellings. We have further the evidence of P. W. 17 Sankara Aiyar, the karnam of the neighbouring village of Karathupalayam. He says that, when he was passing along the road, in front of the third accused's garden, on his return from the Taluk Office in Gobichettipalayam that evening, he found accused 1 and 2 carrying Muthusami Asari to the garden, that the third accused was standing near the gate of the garden and that accused 1 to 3 beat Muthusami Asari in the garden, the first accused with a stick, the second with a yoke piece and the third with a bala. He says he saw the beating. P. W. 17 is a witness apparently disinterested. He is of a different caste from either the deceased or the accused and no particular reasons have been shown why he should swear against the accused. No doubt he admits that he had been suspended from office for six months on account of certain mistakes in accounts; but we do not think that any material grounds have been shown why he should give false evidence against the accused in this murder case. We have also, as already mentioned, the evidence of P. W. 6, a Muhammadan, who returned from Gobichettipalayam along with the deceased Muthusami Asari that night. The witness having gone to his house early heard a noise coming from the third accused's garden. The witness went into the garden with a lighted lantern, saw the three accused there and asked them not to beat Muthusami Asari. The accused having told him not to stay there but to get away, the witness returned after having advised them not to beat Muthusami Asari. P. W. 9, a Goundan, also gives evidence against the accused. He says he heard a noise in the third accused's garden, that he went inside the garden and saw accused 1 to 3 beating Muthusami, that the 1st accused had a stick in his hand, the second accused a piece of yoke and the third accused a bala and that he saw P. W. 18 begging the accused not to beat Muthusami Asari. The witness asked the third accused why Muthusami was being taken, to which the third accused replied that the witness should mind his own business and get away. We thus see that witnesses of different castes, who are not shown to have any motive to give false evidence against the accused, swearing to their having seen Muthusami Asari being carried away into the third accused's garden by accused 1 and 2 and to his having been beaten by all the three accused.

As against this, our attention has been drawn to the evidence of four witnesses examined on the side of the defence. They are all Goundans and some of them related to the third accused, who is a Goundan. One of the witnesses deposes that Muthusami Asari had only a stick in his hand. Subsequently he says he found Muthusami Asari had a bala with him and that a spear-head had been fixed on to the stick. No details are given as to where the spear-head was kept all the while and when the same was fixed on to the stick. D. W. 2 says that he did not see Muthusami Asari fixing the spear-head on to his stick. In the face of the positive evidence afforded by the witnesses on the side of the prosecution, we are not able to say that the learned Additional Sessions Judge was wrong in not accepting the defence evidence.

It was strongly pressed upon us by the learned counsel for the appellants that P. W. 1 was never on the scene of offence at all that day and that his evidence that he was present on the occasion, that he went to fetch the mother and the wife of the deceased and that he saw accused 1 and 2 carry Muthusami inside into the garden at the orders of the third accused is all a bare-facted lie. We are unable to accept this argument. The presence of P. W. 1, is spoken to and admitted by each one of the defence witnesses. D. W. 1 at page 51 speaks to the presence of P. Ws. 1 and 18 on the occasion; similarly D. W. 2 at pages 54 and 55, D. W. 3 at page 57 and D. W. 4 at page 60. We also find that P. W. 1 went to the Village Munsif and gave Ex. A at 10 P. M., on the night in question. It being thus clear that P. W. 1 was returning from Gobichettipalayam along with the deceased and that P. W. 1 was with P. W. 18 and Muthusami Asari opposite the third accused's garden at the time of the occurrence, it is not unnatural that he went to the Village Munsif to give the first information. The contention urged on behalf of the appellants that the absence of any complaint by P.W 18, who was himself wounded, is conclusive against the prosecution, is not entitled to much weight in the particular circumstances. P.W 18 was at the scene of offence, he was wounded (see certificate Ex. J.) and his name is mentioned in the first information Ex. A given by P. W. 1. In these circumstances, we think that there is not much weight in the argument urged on behalf of the appellants that P. W. 18 has not made any complaint in this case. Then it was urged on behalf of the second appellant that he was not on the scene of occurrence at all that night, and that, whatever might be our view as regards the first and the third accused, the second accused should be acquitted. As regards this, we find that in the information given by the first accused Ex. N at 11-30 O'Clock on the same night to the Village Munsif and in Ex. O given by the third accused, the name of the 2nd accused is also mentioned. There is also the specific evidence of P. Ws. 1, 6, 9, 17 and 18 that the second accused was there and that it was the second accused who beat Muthusami Asari with a yoke, which accordingly broke to pieces.

There is one other item of evidence, which also to our minds conclusively proves that the second accused was there and took part in the transaction. The Circle Inspector of Police (P.W 21) says that the second accused was arrested by two constables at 10 A. M. on the 18th December, 1928, near Modachur Village and brought to the station at 10-15 A.M, that the witness examined the second accused in connection with the case and that the second accused having undertaken to point out one bala and two cloths, he was taken at about 11 A. M., with certain witnesses to the place where he said these things had been concealed. The party was taken to a cholam field; the second accused dug out the earth from a spot in the cholam field and took out the bala (M. O. 5), the bala stick (M.O 8) and the spear-bead (M. O. 9). He also took out two cloths (M. Os. 3 and 4) which too lay buried in the earth. A mahazar was prepared and the Village Munsif (P. W. 19) is one of the attesting witnesses to the mahazar and supports the evidence of P. W. 21. In the face of this evidence, we have no doubt in our minds that the second accused also was present at the occurrence and that he took part in the same.

It was further pressed upon us by the learned Counsel for the appellants that the admitted circumstance that there was a spear-wound on the back of the first accused would clearly lead to the conclusion that Muthusami Asari must have been the aggressor and must have had a bala spear with him and that wound ought to have been inflicted by Muthusami Asari. It was also argued that this circumstance supports the defence plea that Muthusami Asari was on the offensive and began the attack and that in self-defence the accused had to beat Muthusami Asari and that in the circumstances the plea of self-defence ought to be upheld. There are two answers, in our view, to this contention. In the first place, we have got the direct evidence of the prosecution witnesses mentioned above, who belong to different castes and who swear that they actually saw the accused carry away bodily Muthusami Asari into the garden, and, in spite of protests made by the witnesses not to beat Muthusami Asari, the accused belaboured him. If that portion of the prosecution evidence is believed, it is absolutely clear that the initiative was taken by the accused and that as per orders of the third accused, their master, accused 1 and 2 carried away Muthusami Asari into the garden and beat him and that the 3rd accused who had a bala in his hand, also inflicted wounds on the deceased. Again though there is no direct evidence on the point, it seems on the whole probable that when a spear-wound was inflicted on the first accused (how and by whom it was inflicted is not clear from the evidence) the second accused naturally got enraged and with the yoke (M. O. 6) beat Muthusami Asari on the legs and chest, with the result that some of the ribs of Muthusami Asari were broken and Muthusami Asari fell to the ground. We do not understand the prosecution as asserting that, after the infliction of this spear-wound on the first accused, the first accused beat Muthusami Asari and that it was the beating by the first accused that broke the ribs of Muthusami Asari and made him fall down. After the wound received by the first accused it is not likely that he would have been able to take any active part in the fight. It is not necessary for us to go to the length of saying that the wound on the back of the first accused was a self-inflicted one.

The third accused states that he ran inside the garden, went into the shed to avoid Muthusami Asari and bolted its door from inside, and that, while bolting the door his middle finger was crushed as it got between the door and the door frame. As the learned Additional Sessions Judge remarks the third accused did not show that injury either to the moniagar or to the Medical Officer that night.

Some arguments were urged with reference to the time at which the several reports were sent by the Village Munsif to the Police and the Magistrate. We do not consider it necessary to labour this point, because, having regard to the other evidence in the case, we do not think that much turns on the exact time at which information was given to the Village Munsif by P. W. 1 and the accused respectively. P. W. 19 himself a goundan, says that P. W. 1's complaint was received at 10 P. M. and that accused 1 and 3 came to him at about 11-30 P. M. It is significant that, though the wound on the back of the first accused was rather a serious one, the first accused was more anxious to go to the Police Station rather than to be admitted into the hospital. In the words of Mr. Kurian, the medical witness P. W. 15, at page 25, “I told the first accused to get himself admitted into the hospital. He said he wanted to go to the Police and make a report.” In the opinion of the medical witness that injury might have caused death. There was difficulty in breathing due to the stab penetrating the pleura. On account of prompt treatment, the witness says the first accused escaped death. In the circumstances, it is significant that the first accused was more anxious to go to the Police rather than to gat himself admitted into the hospital.

The first information report given by accused 1 and 3, namely Exs. N and O, do not make any mention of P. W. 18 at all, though he was admittedly present at the time and was wounded: (see Certificate Ex. J.).

Thus there is direct evidence on the side of the prosecution, of eye-witnesses to the occurrence given by people who belong to different castes and against whom nothing material has been proved as to why they should give false evidence charging the appellants with murder. We have got the motive why the third accused, the master of accused 1 and 2, would like to have Muthusami Asari out of his way. Information was given to the Village Munsif by about 10 P. M. that very night by P. W. 1. There is reliable evidence that accused 1 and 3 were drunk at the time. In these circumstances, we think that the learned Additional Sessions Judge was right in accepting the unanimous opinion of the four assessors that accused 1, 2 and 3 are guilty of the offence of murder. We accordingly confirm the conviction and also the sentence as the murder was a brutal one. Accused 1 and 3 have also been found guilty under Sects. 325 and 324 Indian Penal Code respectively, but having regard to the fact that we have confirmed the sentence of death passed by the lower Court, no separate sentence need be passed, in respect of the offences under these sections. The appeal preferred by the accused is dismissed.

Before parting with this case, we think it right to observe that the practice of tendering important eye-witnesses cited by the prosecution for cross-examination is not a practice which should be encouraged. In this case, Muhammad Sultan cited by the prosecution is a material witness who was present at the scene of occurrence. He is said to have been standing at the distance of a mar from the actual scene of struggle and would prima facie be able to speak to important facts material to the case. Instead of putting into the box and eliciting facts within his personal knowledge and observation, the prosecution merely ‘tendered him for cross-examination.’ Very discretely the defence counsel put no questions to him. In cases where any witness known to the prosecution is able to swear to facts very material to the case, the proper procedure to follow is to ask him to give evidence on oath, as to the several facts known to him which are relevant to the case, though other witnesses might have spoken to the same facts. Merely ‘tendering him for cross-examination’ is not a practice which should be encouraged, especially in murder cases, as it would be very unfair to the accused. If such a practice is in vogue in other districts also we think it proper to remark that the same should be put an end to.

As observed by Field, J., in Queen Empress v. Ram Sahai Lall(1):

“Now it must be understood and it had recently been pointed out in more than, one judgment of this Court, that in conducting a case for the prosecution, all the witnesses, who are alleged, or are known to have knowledge of the facts ought to be brought before the Court and examined.”

In the present case, it is clear from the evidence of the prosecution witnesses that Muhammad Sultan was present at the scene of offence and when the offence was being committed. If so, he should have been asked to swear to facts known to him in the ordinary way and not merely “tendered for cross-examination.”

N.R.RAppeal dismissed.