TMI Blog2003 (7) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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