Jayapal (PW2), Swaminathan (PW3) and Kalaivanan (PW4) are the brothers of Kaliyamurthy and Ganesan.Chandra (PW1) is the wife of Kaliyamurthy.2.2 Kaliyamurthy and the family of his deceased brother Ganesan share a common boundary and naturally, they had boundary disputes.On 20.09.2014, around 11.30 a.m., when Kaliyamurthy was fencing his property, A1 to A4 objected to it.Kaliyamurthy insisted that he was fencing the property only within his boundary and proceededhttp://www.judis.nic.in 4 with the fencing work.Infuriated at that, Senthil (A1) took a billhook (aruval) and aimed a blow on Kaliyamurthy.Seeing this, Kaliyamurthy's brother Kalaivanan (PW4) interjected to protect Kaliyamurthy and the blow fell on Kalaivanan's (PW4's) shoulder.Senthil (A1) gave another blow on Kalaivanan's (PW4's) leg and injured his toe.In this melee, when Kaliyamurthy went to the rescue of his brother Kalaivanan (PW4), Sivakumar (A2) took a casuarina log and gave a hard blow on Kaliyamurthy's head, resulting in Kaliyamurthy falling unconscious, following which, Punitha (A3) and Jayanthi (A4) also started attacking Kaliyamurthy and Kalaivanan (PW4) with sticks and thereafter, they all fled.2.3 Kaliyamurthy and Kalaivanan (PW4) were rushed to the Government Hospital, Kumbakonam by Chandra (PW1), Jayapal (PW2), and Swaminathan (PW3), where, Dr. Kamarul Jamal (PW15) examined the injured duo.2.4 Dr. Kamarul Jamal (PW15), in his evidence as well in the copy of the Accident Register (Ex.P.18), has stated that he examined Kaliyamurthy who was brought by his brother Jayapal (PW2) and found him unconscious; he was told that at 11.30 a.m., Kaliyamurthy washttp://www.judis.nic.in 5 attacked by two known persons with a log; he noted the following injury:“a lacerated would of about 10 x 2 x 1 cm.on the scalp over the left parietal region.” he referred Kaliyamurthy for further treatment to Thanjavur Medical College and Hospital since his condition was critical.2.5 Dr. Kamarul Jamal (PW15) has stated that he examined Kalaivanan (PW4) who was brought by Jayapal (PW2) and when enquired, Kalaivanan (PW4) stated that around 11.30 a.m., he was attacked by two known persons with a billhook (aruval) in the residence on his right shoulder and leg; he noted a cut injury on his right shoulder with contusion and a cut injury on his toe; he admitted Kalaivanan (PW4) as inpatient for further treatment and the accident register copy was marked as Ex.2.6 Chandra (PW1), wife of Kaliyamurthy, carried him to Sugam Multispeciality Hospital in Kumbakonam itself for treatment, where, Dr.Sundar Rajan (PW14) gave treatment to Kaliyamurthy.On getting intimation, Adhikesavan (PW18), Special Sub Inspector of Police came to Sugam Multispeciality Hospital, Kumbakonam, onhttp://www.judis.nic.in 6 20.09.2014 at 5.30 p.m. and recorded the complaint statement given by Chandra (PW1), which was marked as Ex.P.1, based on which, he registered a case in Thiruvidaimaruthur P.S. Cr.No.189 of 2014 under Section 294(b), 324, 323 and 307 IPC against A1 to A4 and prepared the printed FIR (Ex.P.22).2.7 Dr. Sundarrajan (PW14), in his evidence, has stated that Kaliyamurthy was unconscious, his blood pressure was low, he was finding it difficult to breathe and he was kept in ventilator; since his condition started deteriorating, he advised that he be taken to Cauvery Hospital in Trichy for better treatment; he issued accident register which was marked as Ex.Inasmuch as both the criminal appeals at hand arise from one judgment, viz., judgment dated 27.02.2017 passed by the II Additional District and Sessions Judge in S.C. No.267 of 2015, they are considered and decided by this common judgment.2 The prosecution story could be succinctly stated as under: 2.1 The deceased in this case is one Kaliyamurthy.His eldest brother Ganesan died over a decade ago.Senthil (A1) is the son of Ganesan.Punitha (A3) and Jayanthi (A4) are Ganesan's daughters.Sivakumar (A2) is the husband of Punitha (A3).2.8 However, Chandra (PW1) took Kaliyamurthy to KMC Hospital in Trichy, but, they refused to admit him and so, she brought him back to the Government Hospital, Kumbakonam, where, he was declared as dead.Hence, the police filed an alteration report (Ex.P.24) altering the offence to Sections 294(b), 324, 323 and 302 IPC.On the complaint (Ex.P.1) given by Chandra (PW1), the FIR was registered, as stated above.http://www.judis.nic.in 7 3 Inquest was conducted by the police and the inquest report was marked as Ex.The body of Kaliyamurthy was sent to the Government Hospital, Kumbakonam for postmortem, where, Dr.A.Ravichandaran (PW17) performed autopsy and in his evidence as well in the postmortem certificate (Ex.P.21), he has stated as follows:“One sutured wound measuring 8 cm x 8 cm x 1 cm on the left portion of the head.Eyes closed, ear nostrils Ho, Mouth Partially opened.Tongue inside the mouth.Ribs intact.Heart 250 gms.c/s chambers empty.Lungs 400,400 c/s congested, Liver: 1500 gms.c/s congested.Spleen 150 gms c/s.Stomach empty.Hms: (N) Intestine; empty, bladder empty.Kidneys each 150 gms.c/s.Scalp: A sustained wound over left side (parietal region) about 8 cm x 1 cm below the wound.Depressed fracture of skull bone elliptical shape fracture of parietal region left.Brain: Lacerated injury over left parietal lobe over skull, fracture side, cavity fillup with blood clots.Shown no alcohol/other poisons detected.So, the final opinion is grievous injury on head and brain leads to death” 4 While so, Senthil (A1) and Sivakumar (A2) surrendered before the Judicial Magistrate, Chidambaram in Cuddalore District and not before the jurisdictional Magistrate.On coming to know of it, the Investigating Officer took them into custody on 08.10.2014 and recorded their statement.http://www.judis.nic.in 8 5 Based on the disclosure statement of Senthil (A1), the Investigating Officer recovered a billhook (aruval) – MO1, under the cover of mahazar (Ex.P.31).Based on the disclosure statement of Sivakumar (A2), he recovered a casuarina log (MO2) under the cover of mahazar (Ex.P.32).6 Meanwhile, Punitha (A3) and Jayanthi (A4) were arrested by the police on 21.09.2014 itself and certain recoveries were effected based on their confession statements, which may not be necessary to be alluded to.7 After recording the statement of witnesses and collecting various reports, the Investigating Officer filed the Final Report in P.R.C. No.27 of 2015 before the District Munsif-cum-Judicial Magistrate No.I, Kumbakonam, for the offences under Section 294(b), 323, 324 and 302 read with Section 34 IPC.8 On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C. No.267 of 2015 and was made over tohttp://www.judis.nic.in 9 the II Additional District and Sessions Judge, Thanjavur for trial.The Trial Court framed the following charges:Charge No. Array of accused Provision of law under which charged 1 A1 & A2 S. 294(b) IPC 2 A1 S. 324 IPC 3 A2 S. 302 IPC 4 A3 & A4 S. 323 IPC 5 A1,A3 & A4 S. 302 r/w S.34 IPC When questioned, the accused pleaded “not guilty”.9 To prove their case, the prosecution examined 23 witnesses, marked 33 exhibits and 3 material objects.On behalf of the accused, neither any witness was examined nor any document marked.When the accused were questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against them, they denied the same.10 After considering the evidence on record and hearing either side, the Trial Court, by judgment dated 27.02.2017, acquitted Punitha (A3) and Jayanthi (A4), however, convicted Senthil (A1) and Sivakumar (A2) as follows:(A2) for the charge under Section 302 IPC and the complete acquittal of Punitha (A3) and Jayanthi (A4), Chandra (P.W.1) has preferred Crl.12 Heard Mr. N. Anantha Padmanabhan, learned counsel representing Mr.A.Arun Prasad, learned counsel on record for the appellants in Crl.A. (MD) No.85 of 2017 and respondents 2 to 5 in Crl.A. (MD) No.167 of 2017, Mr.K.S. Duraipandian, learned counsel for the appellant in Crl.A. (MD) No.167 of 2017 and Mr. R. Anandharaj, Addl.Public Prosecutor appearing for the State.http://www.judis.nic.in 11 13 At the outset, it may be necessary to examine the evidence of the eyewitnesses, viz., Chandra (PW1), Jayapal (PW2), Swaminathan (PW3), and Kalaivanan (PW4).As stated above, Jayapal (PW2), Swaminathan (PW3) and Kalaivanan (PW4) are siblings and they are the paternal uncles of Senthil (A1), Punitha (A3) and Jayanthi (A4) born to their eldest brother Ganesan.Kaliyamurthy, the deceased in this case, was the other brother.13.1 Chandra (PW1), widow of Kaliyamurthy, has stated in her evidence that there was boundary dispute between both families; her husband made arrangements for putting up a fence around their property and at that time, her brother-in-law (her husband's brother) was also there; when they were at it, A1 to A4 came to the boundary and asked her husband not to fence the property, for which, her husband, stated that he is putting up the fence only within his boundary after measuring, for which, Senthil (A1) and Sivakumar (A2) abused him and referred to him as “bastard” in vernacular; thereafter, Senthil (A1) took a billhook (aruval) and aimed a blow at her husband; on seeing this, her husband's brother Kalaivanan (PW4) intervened and the blow fell on his shoulder; once again, Senthil (A1) attacked Kalaivanan (PW4) and the blow fell on his leg; when her husbandhttp://www.judis.nic.in 12 intervened, he was beaten with a casuarina log on his head and he fell down.She identified M.O.1 as the billhook (aruval) that was used by Senthil (A1); M.O.2 as the casuarina log used by Sivakumar (A2) and M.O.3 series as sticks used by Punitha (A3) and Jayanthi (A4).Chandra (PW1) has further stated that the injured were taken to the Government Hospital, Kumbakonam, from where, her husband was taken to Sugam Multispeciality Hospital at Kumbakonam and from there, he was taken to K.M.C. Hospital, Trichy and from the said hospital, he was brought back to the Government Hospital, Kumbakonam, where, he was declared brought dead.13.2 Kalaivanan (PW4) has stated that he retired as Bus Conductor; the accused are living next to the house of his brother Kaliyamurthy; his eldest brother Ganesan, who is the father of Senthil (A1), died ten years ago; there was property dispute between Kaliyamurthy and his eldest brother Ganesan's children; on 20.09.2014, around 11.30 a.m., Kaliyamurthy wanted to put up a fence around his property, which was objected to by Ganesan's children, for which, Kaliyamurthy stated that he is putting fence only on his side of the property; Senthil (A1) abused him in vulgar words and came to hack him; on seeing this, he (PW4) intervened; the blowhttp://www.judis.nic.in 13 fell on his shoulder and so, he fell down and again, Senthil (A1) hacked him on his leg and caused injury to his toe; when Kaliyamurthy came to his (PW4's) rescue, Sivakumar (A2) took a casuarina log and gave a hard blow on Kaliyamurthy's head by saying "All the problems are because of you only and it is better you die (free translation); his brother (Kaliyamurthy) fell down and the women also started hitting with sticks, after which, they all ran away; thereafter, both of them were taken to the hospital where he was admitted as inpatient; but, his brother was advised to be taken to Thanjavur Government Hospital; while he (PW4) was in the hospital, he learnt that his brother died at 4.30 a.m. the next day.He identified the billhook (aruval) that was used by Senthil (A1) as M.O.1, the casuarina log used by Sivakumar (A2) as M.O.2 and the sticks used by Punitha (A3) and Jayanthi (A4) as M.O.3 series.13.3 The evidence of Jeyapal (PW2) and Swaminathan (PW3), who are the other two brothers of Kalaivanan (PW4) and the deceased Kaliyamurthy are also to the same effect.14 The Trial Court has believed the testimony of Kalaivanan (PW4), injured witness and has returned a finding that Kalaivananhttp://www.judis.nic.in 14 (PW4) was attacked with a billhook (aruval) by Senthil (A1) and Kaliyamurthy was attacked with a casuarina log.However, the Trial Court has disbelieved the evidence of the eyewitnesses that Punitha (A3) and Jayanthi (A4) had also joined the attack, though their presence has not been disbelieved and has eventually acquitted Punitha (A3) and Jayanthi (A4).15.1 The complaint (Ex.P.1) given by Chandra (PW1) cannot be true because Selvabharathy (PW9), Kaliyamurthy's daughter has, in the cross-examination, stated that after the attack, they all went to the police station first and only thereafter, to the hospital; hence, the evidence of Chandra (PW1) and Kalaivanan (PW4) that they went first to the hospital stands belied.Our reasoning: However, it is to be noted that Selvabharathy (PW9) has clearly deposed with regard to the attack that was mounted by Senthil (A1) and Sivakumar (A2) and has amply corroborated thehttp://www.judis.nic.in 15 evidence of Chandra (PW1), Jayapal (PW2), Swaminathan (PW3) and Kalaivanan (PW4).Selvabharathy (PW9) was aged about 17 years when she was examined in the Court on 24.01.2017 with regard to the incident that had taken place on 20.09.2014, when she would have been 14 years old.The Trial Judge has posed preliminary questions to find out whether she has the necessary understanding of the Court proceedings.The fact remains that after sustaining the injury, Kaliyamurthy had fallen unconscious and Kalaivanan (PW4) was bleeding with cut injury.When that being so, they would have been taken first to the hospital and not to the police station.As against this stray statement of Selvabharathy (PW9), we have the overwhelming evidence of Chandra (PW1), Jayapal (PW2), Swaminathan (PW3) and Kalaivanan (PW4) who have all, in unison, stated that after the attack, the injured were taken to the Government Hospital, Kumbakonam.Ergo, we cannot place much credence on the stray statement of Selvabharathy (PW9) that the injured were first carried to the police station and only thereafter, to the hospital.15.2 Jayapal (PW2) has stated that the Village Administrative Officer and Surveyor were present at the place of occurrence and that their non-examination is fatal to the prosecution case.http://www.judis.nic.in 16 Our reasoning: We are unable to persuade ourselves to agree with this contention, because, apart from the stray statement of Jayapal (PW2) that the Surveyor and Village Administrative Officer were present at the place of occurrence, there is no other material to show that they were present there.Had the Surveyor and Village Administrative Officer been present for measuring the land, the incident would not have taken place, because, the accused would not have dared to prevent the Surveyor and Village Administrative Officer from measuring the land.Even assuming for a moment that the Surveyor and the Village Administrative Officer were present at the place of occurrence, their non-examination cannot be said to be fatal, because, we have the evidence of the injured witness Kalaivanan (PW4), whose evidence, the defence were not able to demolish even a wee bit.The injury sustained by Kaliyamurthy has been corroborated by the evidence of Dr.Kamarul Jamal (PW15) and the Accident Register copy (Ex.P.18).15.3 Swaminathan (PW3) has stated in the cross-examination that the incident had occurred for about 45 minutes and the altercation occurred for about 5 minutes; further, the witnesses have also statedhttp://www.judis.nic.in 17 that Senthil (A1) took a bilhook (aruval) that was lying on the ground and caused the injury, which shows that there was no premeditation on the part of the accused; thus, it is clear that Kaliyamurthy provoked the accused by picking up a quarrel and the attack was due to the grave and sudden provocation.Our reasoning: It is trite that if an accused wants to bring his case within any legal exception, the onus is on him under Section 105 of the Evidence Act. Of course, this onus can be discharged by preponderance of probability and also by pointing out the circumstances available in the evidence on record in support of the claimed exception.However, in the cross-examination of Kalaivanan (PW4), it has been suggested that no incident, as alleged by him, had taken place and that he got injured somewhere in his house, with which, a case has been foisted on the accused.Even in the Section 313 Cr.P.C. examination, the accused have not stated that Kaliyamurthy abused them and provoked them to attack.Assuming for a moment that the family of Kaliyamurthy being neighbours and also close relatives, had animosity towards the accused, no ill-motive has been attributed to Jayapal (PW2), Swaminathan (PW3) and the injured witness, viz., Kalaivanan (PW4) who all are the paternal uncles ofhttp://www.judis.nic.in 18 Senthil (A1), Punitha (A3) and Jayanthi (A4).In fact, they have all stated that they were having good relationship with the family of their deceased brother Ganesan and they had no property dispute with the accused.Jayapal (PW2) and the injured witness Kalaivanan (PW4) have stated that Senthil (A1) used vulgar words at his uncle Kaliyamurthy when Kaliyamurthy insisted that he was going to put up the fence only within his boundary.15.4 Chandra (PW1) and Swaminathan (PW3) could not have been an eyewitness to the incident, because, Kalaivanan (PW4) has stated that before his going to the place of occurrence, Kaliyamurthy and Jayapal (PW2) were there and he did not see the Surveyor and Village Administrative Officer.In this context, the learned counsel for the accused harped upon the statement of Kalaivanan (PW4) “Besides us, no one was there”, and contended that Swaminathan (PW3) and Chandra (PW1) were also not there.http://www.judis.nic.in 19 Our reasoning: In our opinion, this is an utter misreading of the evidence.When a leading question was put to the witness as to whether Kaliyamurthy and Jeyapal (PW2) were there before his going, he has stated in the affirmative.Therefore, to the leading question put to him, he has stated that he did not see the Village Administrative Officer and Surveyor.After saying so, he has stated that besides them, none was there.He excludes the Village Administrative Officer and Surveyor, because, he did not see them.The incident had taken place in the compound of Kaliyamurthy and it was natural for his wife Chandra (PW1) to have been there when such a commotion was taking place.Chandra (PW1) was not a stranger and her presence at the place of occurrence, which is her house, is indubitably natural.Therefore, we are in complete agreement with the findings of the Trial Court that Senthil (A1) attempted to hack Kaliyamurthy, but, on the intervention of Kalaivanan (PW4), the blow fell on Kalaivanan's (PW4's) shoulder.After the second attack on Kalaivanan (PW4) by Senthil (A1), Kaliyamurthy came to the aid of his brother, seeing which, Sivakumar (A2) hit him on his head with a casuarina log and caused injury.We also hold that the prosecution have proved that Senthil (A1) and Sivakumar (A2) had abused their paternal uncle Kaliyamurthy in filthyhttp://www.judis.nic.in 20 language and Sivakumar (A2), while attacking Kaliyamurthy, has stated that he (Kaliyamurthy) is the root cause for all the troubles.16 Now, comes the strange findings of the Trial Court.“20 Against the 1st accused, the specific charge u/s 302 r/w 34 IPC.As per the evidence of above stated eye witnesses the 1st accused have not attacked the deceased Kaliamurthy and even he has not touched the body of the deceased Kaliyamurthy before or after death.So, mere participation of the 1st accused at the occurrence place along with the 2nd accused.21 In this case, the 1st accused attacked PW4 Kalaivanan.But, originally, the 1st accused started to attack deceased Kaliamurthy.But, unfortunately, PW4 Kalaivanan intervened and got the blow from the 1st accused on his shoulder and leg.From the above said attack, the deceased Kaliamurthy escaped.Then the 2nd accused took revenge and attacked Kaliamurthy with wooden log.Due to the attack of the 2nd accused, Sivakumar deceased kaliamurthy fell down and became unconscious.The attack made by Sivakumar caused grievous injury to the deceased Kaliamurthy.The injury caused by the 1st accused to PW4 Kalaivanan only simple.In the above said occurrence, the 1st accused has not made any attack on the deceased Kaliamurthy.Both the accused 1 and 2 have not made any preparation for committing murder.The attack caused by the 1st and 2nd accused are only without any intention to cause death, as per the evidence of PW4, PW2 who are the prime eye witness in the occurrence place.While the deceased Kaliamurthy was making arrangements to put uphttp://www.judis.nic.in 21 fence, the accused came and asked them not to put up fence and do the same after completing the measurement.So, they have not stated anything aggressively as against the interest of the deceased Kaliamurthy.The evidence of PW4 and PW2 clearly reveals that the accused 1 & 2 suddenly provocated on hearing the reply from the deceased Kaliamurthy, the 1st accused suddenly provocated and attempted to attack Kaliamurthy with aruval.It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault.He gave a second blow to Kalaivanan (PW4) for having come to the rescue of Kaliyamurthy, which fell on Kalaivanan's (PW4's) leg cutting his toe.When Kaliyamurthy came to the rescue of Kalaivanan (PW4), Sivakumar (A2) took a casuarina log and gave one solid blow on Kaliyamurthy's head by saying that all these problems were because of him (Kaliyamurthy) only and that he should be no more.Though at the first blush, this argument did sound reasonable, but, the evidence on record militates against such ahttp://www.judis.nic.in 25 conclusion.Hence, instead of taking Kaliyamurthy that far, Chandra (PW1) took him to Sugam Multispeciality Hospital in Kumbakonam itself for better treatment.There, Dr. Sundarrajan (PW 14) treated Kaliyamurthy and put him on ventilator.His pulse rate was coming down and he was gasping for breath.

Sections cited: Section 34 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 294(b) in The Indian Penal Code, Section 324 in The Indian Penal Code, Section 323 in The Indian Penal Code, Section 299 in The Indian Penal Code, Section 325 in The Indian Penal Code, Section 307 in The Indian Penal Code, Section 304 in The Indian Penal Code