Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1857 of 2009
Selvam …… Appellant
Versus
The State of Tamil Nadu rep. by
Inspector of Police ….. Respondent
WITH
CRIMINAL APPEAL Nos. 1667-1668 of 2012
(Arising out of SLP (Crl.) Nos.575-576 of 2010)
Senthil & Anr. …… Appellants
Versus
The State rep. by Inspector of Police ….. Respondent
J U D G M E N T
A. K. PATNAIK, J.
Leave granted in S.L.P. (Crl.) Nos. 575-576 of 2010.
2. These Criminal Appeals are against the judgment dated 12.12.2008 of
the Madras High Court, Madurai Bench, in Criminal Appeal Nos.200-201
of 2008.
3. The facts very briefly are that on 16.11.2006 at 21:00 Hrs. a First
Information Report (for short ‘FIR’) was lodged in Ganesh Nagar Police
Station pursuant to a statement of Meyyappan recorded by the Sub-
Inspector of Police. In this FIR, it is stated thus: Mayyappan lived
at the Thethampatti, Thiruvarangulam, alongwith his family and that
there was a dispute pending between his family and the family of
Arangan over land. On 15.11.2006 at 11.00 a.m. Mariappan, who belongs
to the family of Arangan, died and the family of Arangan wanted to
take the burial procession through house street of Meyyappan and his
family members but Meyyappan’s younger brother Chinnadurai and his
father Rengaiah appealed to the important persons of the village
saying that there was a separate public pathway for taking the dead
body to the cremation ground and the village head and other villagers
accordingly requested the members of the family of Arangan to carry
the dead body of Mariappan through that public pathway. On 16.11.2006
at about 15:00 Hrs. Arangan and his brothers, Meyyappan, Murugan,
Subbaiah, Chidambaram, Senthil, Selvam and others, armed with aruvals
and sticks came to the family house of Meyyappan and asked his family
members to come out and thereafter Arangan and Senthil delivered a cut
on Chinnadurai and Selvam and others assaulted them with sticks and
Chinnadurai was first taken to the government hospital and thereafter
to the Thanjavur Medical College Hospital for treatment.
4. On the basis of this statement of Meyyappan, Ganesh Nagar Police
Station Crime No. 795/06 under Sections 147, 148, 323, 324 and 307 of
the Indian Penal Code, 1860 (for short ‘the IPC’) was registered.
Chinnadurai died at the hospital on 25.11.2006. Investigation was
conducted and a charge-sheet was filed. Charges were framed against
Arangan (accused no.1) under Sections 148 and 302 of the IPC, against
Meyyappan (accused no.2) under Sections 148 and 307 of the IPC,
against Subbaiah (accused no.3) under Sections 147 and 307 of the IPC,
against Chidambaram (accused no.4) under Sections 148 and 326 of the
IPC, against Murugan (accused no.5) under Sections 148 and 326 of the
IPC, against Senthil (accused no.6) under Sections 148 and 302 read
with Section 34 of the IPC, against Selvam (accused no.7) under
Section 147, 302 read with Section 34 and Section 325 of the IPC,
against Thilak (accused no.8) under Sections 147 and 325 of the IPC
and against Marthandam (accused no.9) under Sections 147 and 302 read
with Section 34 of the IPC. The Trial Court convicted accused no.1
under Section 302 of the IPC and sentenced him to undergo life
imprisonment and to pay a fine of Rs.3000/- and in default, to further
undergo rigorous imprisonment for a period of six months. The Trial
Court also convicted accused nos. 6 and 7 under Section 302 read with
Section 34 of the IPC and sentenced them to undergo life imprisonment
and to pay a fine of Rs.3000/- and in default, to further undergo
rigorous imprisonment for a period of six months. The Trial Court
convicted the accused no.4 under Section 324 of the IPC and sentenced
him to undergo rigorous imprisonment for a period of three months and
to pay a fine of Rs.1000/- and in default, to further undergo rigorous
imprisonment for a period of two months. Accused nos. 1, 4 and 6
filed Criminal Appeal no. 200 of 2008 and accused no.7 filed Criminal
Appeal no. 201 of 2008 before the High Court against their conviction
and sentences, but by the impugned judgment the High Court sustained
the conviction and the sentences. Accused no.7 has filed Criminal
Appeal no. 1857 of 2009 and accused nos. 1 and 6 have filed the other
Criminal Appeal arising out of SLP (Crl.) Nos. 575-576 of 2010.
5. Mr. S.B. Sanyal, learned senior counsel appearing for the accused
No.7, submitted that in the FIR it is alleged by the informant that
the accused No.7 had assaulted persons other than Chinnadurai with
stick. He submitted that the informant was examined before the Trial
Court as PW-1 and he has given an entirely different version in his
evidence and has said that the accused no.7 assaulted on the left side
of the head of Chinnadurai. He further submitted that the father of
Chinnadurai, namely, Rengaiah, has also been examined before the Trial
Court as PW-2 and he has deposed that the accused no.7 assaulted on
the left side of the head of Chinnadurai with stick. He submitted
that PW-1 and PW-2 have improved upon the role of the accused No.7 in
the assault on the deceased after coming to know of the opinion of the
doctor in the post mortem report about the injuries on the deceased.
He argued that where there is such variance between the version in the
FIR and the version of PW-1 and PW-2 before the Court with regard to
the exact role of the accused no.7 in the assault on the deceased, the
accused No.7 cannot be convicted under Section 302 read with Section
34 of the IPC. He cited Anil Prakash Shukla v. Arvind Shukla [(2007)
9 SCC 513] in which this Court has taken a view that where the
witnesses have improved their version given in the FIR after coming to
know of the medical report, benefit of doubt must be given to the
accused. He also relied on Kalyan and Others v. State of U.P. [(2001)
9 SCC 632] where benefit of doubt has been given to the accused on
account of variance between the FIR and the deposition made in the
court.
6. Mr. Sanyal next submitted that PW-11, who conducted the post mortem on
the dead body of the deceased, is clear in his opinion that the injury
on the head of the deceased was a ‘contusion’ and medical dictionary
by P.H. Collin describes ‘contusion’ as a bruise, a dark painful area
on the skin, where blood has escaped into the tissues, but not through
the skin, following a blow. He submitted that PW-11 has also stated
in her cross-examination that she did not see any incised injury
during the examination of the dead body. He submitted that as a
matter of fact the deceased died in the hospital after several days of
the incident. According to Mr. Sanyal, this was therefore not a case
where accused no. 7 could be said to have any intent to cause the
death of the deceased and therefore he was not guilty of the offence
of murder under Section 302 of the IPC. In support of this
submission, he relied on B.N. Kavatakar and Another v. State of
Karnataka [1994 Supp.(1) SCC 304] in which this Court has held after
considering the opinion of the medical officer and after considering
the fact that the deceased died after five days of the occurrence that
the offence would be punishable under Section 326 read with Section 34
of the IPC. He also cited Abani K. Debnath and Another v. State of
Tripura [(2005) 13 SCC 422] where the deceased succumbed to injuries
after lapse of seven days of the occurrence and this Court has
converted the sentence as against accused no.1 from one under Section
302, IPC to one under Section 304 Part-II, IPC, and sentenced him to
suffer rigorous imprisonment for five years.
7. Mr. Sanyal finally submitted that the High Court has in the impugned
judgment treated the case of the accused no.7 in parity with accused nos. 1
and 6, but the facts of the case clearly establish that the role of the
accused no.7 was different from that of accused nos. 1 and 6 in the
occurrence and the accused no.7 should have been awarded lesser punishment
than accused Nos. 1 and 6.
8. Mr. K. K. Mani, learned counsel appearing for the accused nos. 1 and
6 in Criminal Appeal arising out of S.L.P. (Crl.) Nos.575-576 of 2010,
adopted the arguments of Mr. Sanyal. He further submitted that both PW-1
and PW-2 had deposed that accused no.1 and accused no.6 had given cut
injuries on the deceased by aruval, but the medical evidence of PW-11 is
clear that a blunt weapon had been used in assaulting the deceased. He
submitted that this is, therefore, a case where the ocular evidence cannot
be believed because of its inconsistency with the medical evidence.
9. Mr. B. Balaji, learned counsel appearing for the State, in reply,
submitted that PW-1 and PW-2 are injured eyewitnesses and cannot be
disbelieved by the Court. He submitted that the contention of learned
counsel for the appellants that the version given by PW-1 in the FIR and
the version given before the Court are at variance is misconceived. He
argued that in the FIR, PW-1 has stated that accused no.7 and others
assaulted ‘us’ with stick and by the word ‘us’, PW-1 meant not only
himself but also the deceased. He submitted that the evidence of PW-1
and PW-2 clearly establish that accused nos.1, 6 and 7 delivered the
injuries on the head of the deceased, on account of which he fell
unconscious and ultimately died. He submitted that the presence of
accused nos.1, 6 and 7 at the spot and their role in assaulting the
deceased are not in doubt and they are all liable for the offence under
Section 302 read with Section 34, IPC. He finally submitted that this is
not a fit case in which this Court should interfere with the concurrent
findings of facts of the Trial Court and the High Court.
10. We have considered the submissions of learned counsel for the parties
and we find that the difference in the version in the FIR and the
version in the evidence of PW-1 and PW-2 is not very material so as to
create a reasonable doubt with regard to the participation of accused
nos.1, 6 and 7 in the assault on the deceased. In the FIR, it has
been alleged that the accused nos.1 and 6 delivered a cut on the
deceased. In his evidence, PW-1 has stated that accused no.1 had
delivered a cut on the centre of the head of the deceased and accused
no.6 delivered a cut on the head of the deceased. Similarly, in his
evidence PW-2 has stated that accused no.1 delivered a cut on the
centre of the head of the deceased and accused no.6 snatched the
aruval from accused no.1 and delivered a cut on the centre of the head
of the deceased. The FIR and the evidence of PW-1 and PW-2 are, thus,
clear that accused no.1 and accused no.6 delivered a cut injuries on
the deceased. Regarding the participation of the accused no.7 in the
assault, in the FIR it is alleged that accused no.7 assaulted on ‘us’
with a stick. The evidence of PW-1 and PW-2 is that accused no.7
assaulted on the left side of the head of the deceased with a stick.
The word ‘us’ in the FIR cannot mean to exclude the deceased inasmuch
as the deceased was the brother of PW-1 and was the son of PW-2.
There is evidence to show that besides the deceased, PW-1 and PW-2
were also injured and were treated at the hospital. Hence, accused
no.7 has used the stick not just against PW-1 and PW-2, but also
against the deceased. We, therefore, do not find any material
difference between the version in FIR and in the evidence of PW-1 and
PW-2 on the role of accused No.7 in the assault.
11. The evidence of PW-1 and PW-2, in our opinion, establishes beyond
reasonable doubt that accused no.1 used the aruval to strike at the
head of the deceased. From the evidence of PW-1 and PW-2, it is also
established beyond reasonable doubt that accused no.6 snatched the
aruval from accused no.1 and struck on the head of the deceased. The
evidence of PW-1 and PW-2 also establish that accused no.7 struck the
head of the deceased by a stick. The result of all these acts of
accused nos.1, 6 and 7 is the death of the deceased. Section 34, IPC,
states that when a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him
alone. Section 33, IPC, states that the word “act” denotes as well a
series of acts as a single act. Thus, even though accused nos.1, 6
and 7 may have committed different acts, they have cumulatively
committed the criminal act which has resulted in the death of the
deceased and are liable for the criminal act by virtue of Section 34,
IPC. We, therefore, do not find any merit in the submission that
accused No.7 was not liable for the same punishment as accused Nos. 1
and 6.
12. The next question which we have to decide is whether the criminal
act committed by accused nos.1, 6 and 7 amounts to murder under
Section 300, IPC, or some other offence. The medical evidence of PW-
11 is clear that all the injuries of the deceased were most probably
as a result of an assault by a blunt weapon and in the opinion of PW-
11, the deceased appears to have died due to head injuries. PW-11
has also admitted in her cross-examination that she did not see any
incised injuries during the post mortem examination and had a sickle
been used it would have caused incised wounds. Thus, it appears that
accused no.1 and accused no.6 had used not the sharp side but the
blunt side of the aruval and accused no.7 had used the stick in the
assault on the deceased. The fact that the blunt side of the aruval
and a stick was used in the assault on the deceased would go to show
that accused nos.1, 6 and 7 did not have any intention to cause the
death of the deceased. Nonetheless, the injuries caused by accused
nos.1, 6 and 7 were all on the head of the deceased, including his
parietal and temporal regions. Accused nos.1, 6 and 7, thus, had the
intention of causing bodily injury as is likely to cause death and
were liable for punishment for culpable homicide not amounting to
murder under Section 304 Part I, IPC.
13. On similar facts, where injuries were caused by a blunt weapon,
this Court in State of Punjab v. Tejinder Singh & Anr. [1995 Supp (3)
SCC 515] held in para 8:
“8. In view of our above findings we have now to ascertain whether for
their such acts A-1 and A-2 are liable to be convicted under Section
302 read with Section 34 IPC. It appears from the evidence of PW 4 and
PW 5 that the deceased was assaulted both with the sharp edge and
blunt edge of the gandasas and the nature of injuries also so
indicates. If really the appellants had intended to commit murder,
they would not have certainly used the blunt edge when the task could
have been expedited and assured with the sharp edge. Then again we
find that except one injury on the head, all other injuries were on
non-vital parts of the body. Post-mortem report further shows that
even the injury on the head was only muscle-deep. Taking these facts
into consideration we are of the opinion that the offence committed by
the appellants is one under Section 304 (Part I) IPC and not under
Section 302 IPC.”
14. In this case, the assault on the deceased was on 16.11.2006 and the
deceased died in the hospital after nine days on 25.11.2006. In Abani
K. Debnath and Another v. State of Tripura (supra) this Court, after
considering the nature of the injuries as well as the fact that the
deceased succumbed to the injury after a lapse of seven days, took the
view that the conviction of the accused in that case cannot fall under
Section 302, IPC.
15. After considering the evidence of PW-1 and PW-2, the medical evidence
of PW-1 and the fact that the deceased died after nine days of the
assault, we are of the considered opinion that the Trial Court and the
High Court were not right in convicting the appellants under Section
302, IPC, and the appellants should have been convicted instead under
Section 304 Part-I read with Section 34, IPC. We accordingly allow
these appeals in part, modify only the conviction and sentence on the
appellants under Section 302, IPC, and instead order that the
appellants (namely, accused nos.1, 6 and 7) are convicted under
Section 304 Part-I read with Section 34, IPC, and sentenced to
rigorous imprisonment for seven years. The fine amount imposed by the
Trial Court and affirmed by the High Court is affirmed.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Swatanter
Kumar)
New Delhi,
October 16, 2012.
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