When the main defence is that
there was a free fight on both sides and that there is no evidence
to show that there is prior meeting of minds. The accused had not been convicted under Section 34 or Section 149 IPC and,
therefore, each individual accused can only be convicted for the
injury attributed to that individual.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1893 OF 2010
GURU @ GURUBARAN & ORS. …APPELLANT(S)
Versus
STATE REP. BY INSP. OF POLICE …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against
the judgment of the High Court whereby Guru @ Gurubaran (A1)
and Durai @ Durairajan (A2) have been convicted under Section
302, Indian Penal Code (IPC) and sentenced to imprisonment for
life and to pay a fine of Rs.1000/ each with default sentence of 3
1
months rigorous imprisonment (RI). As far as Vettri @ Vetrivell
(A3) is concerned, he was convicted under Section 324 IPC on
two counts and sentenced to one year RI on each count and fine
of Rs.1000/ with default sentence of 3 months. Narayanan (A5)
and Srinivasan (A9) along with other accused were convicted
under Section 323 IPC and sentenced to undergo six months RI
and pay fine of Rs.1000/ each with default sentence of 3
months. All the sentences were to run concurrently.
2. The prosecution case is that Parasuraman (PW14), son of
deceased Saroja and Munusamy Pillai (PW1), was in love with
Uma, the younger sister of A1. They both got married and after
the marriage, PW14 lived in his wife’s house. However, Saroja
(deceased) did not approve of this. Thereafter, PW14 came back
to his house. On 03.03.1998, it is alleged that Jayaraman (A4)
assaulted Nagarajan (PW2), brother of Saroja and brotherinlaw
of PW1. To settle the dispute, a Panchayat was called the next
day. It is admitted that this Panchayat was called at the instance
of A1. The Panchayat was to be conducted in the evening.
However, since the Pradhan of the Panchayat was indisposed, the
2
Panchayat could not be held. Thereafter, PW2, his sister Saroja
(deceased), his wife Rani (PW7), Murugan (PW13) and Naveen
Kumar, son of PW2 and PW7 stood outside the house of PW2
talking amongst themselves. According to him, PW13 had come
to the village because of the Panchayat. While they were
standing there, A1 came armed with a sickle (Koduval), A2
armed with an Iron Pipe, A3 armed with a sickle (Koduval) and
A4 to A9 carrying thick wooden staffs in their hands. It is
alleged that A1 attacked deceased Saroja with a sickle on the
front portion of her head and said that it was only because of her
that the younger sister of A1 has to live separately from her
husband. A2 gave a blow on the back of the neck of Saroja with
an iron pipe. The other accused are alleged to have attacked
Saroja with wooden staffs in their hand. When the family
members of Saroja tried to protect her, all the 9 accused
surrounded her and, as such, they could not protect her.
According to the eyewitnesses, they were also attacked by the
members of the aggressive party. The version of all the eyewitnesses is similar.
3
3. However, there are some discrepancies with regard to the
manner in which the said incident took place. According to PW1, on the date of Panchayat, first a verbal altercation took place
between the two sides and then the attack took place whereas,
according to PW2 and some of the other eyewitnesses, the
attack took place without any provocation. We are of the
considered view that for the purpose of deciding this appeal, we
can even presume that there was some verbal altercation
between the two sides.
4. The occurrence is not denied. The main defence is that
there was a free fight on both sides and that there is no evidence
to show that there is prior meeting of minds. The accused had
not been convicted under Section 34 or Section 149 IPC and,
therefore, each individual accused can only be convicted for the
injury attributed to that individual. Therefore, it becomes
relevant to refer to the medical evidence of the autopsy surgeon
Dr. Rajamani, Assistant Surgeon (PW3). The injuries are as
follows:
“1. An Antemortem red, oblique lacerated wound
measuring 6cm x 1cm x 1cm, exposing the bones over the
4
left frontal region of scalp, 1 cm away from the midline with
bleeding and blood clots. On Exploring the wound,
echymosis seen behind the scalp over the frontal, parietal,
temporal and back of skull. There is a fracture of frontal
bone measuring 5 cm in length, vertical, para sagittally and
1cm away from midline over the left side, extended to
upwards to fronto parietal junction, and another fracture
line which is adjacent to it and slightly oblique from the
frontal bone to towards fronto parietal junction, 4cm x 1/8
on and on exposing the skull bones blood clots seen over
the membranes of the leftcerebral hemisphere of brain on
the frontal, parietal, temporal and occipital region, of the
brain. Both fractures are involving inner and outer table of
the skull.
2. An abrasions varying size from 3cm to 21/2cm x ¼ cm
with ½ cm different from each other, oblique, placed over
middle 1/3 of right side neck.
3. An AM abrasion 21/2cm x ¼ cm obliquely placed 1cm
away from injury No.2 on right side of neck.
4. An AM swelling whole of the anterior and lateral side
of right side neck. On exposing the injury No.2, 3, 4 minor
blood clots under the skin of neck and congestion of
sternomastoid muscle and blood clots seen in anterior and
lateral side of right side neck.”
5. The doctor states that these injuries caused the death. The
first injury is a lacerated wound and it is urged by
Mr. S. Nagamuthu, learned senior counsel, that this injury could
not have been caused by sickle (Koduval), which is a sharpedged
weapon. A sickle is an instrument mainly meant for cutting
grass and crops. The inner side is sharp but the outer side is
blunt. While using it as an instrument of agriculture only, the
sharp edge is used but while using it as a weapon of offence,
more often than not, it will be the outer side which will be used to
5
hit the victim. The doctor has opined that the injury could have
been caused by a sickle which is MO1 and, therefore, the
medical evidence fully corroborates the version of all the eyewitnesses.
6. It was next urged that the offence was not of murder but
may amount to culpable homicide not amounting to murder. It
has been urged that the case would fall within Exception 4 to
Section 300 IPC, which reads as follows:
“Exception 4 – Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.”
7. We are of the view that the accused cannot take benefit of
this Exception. It has come in evidence that all the accused
persons came armed. Two were armed with sickles, one with an
iron pipe and the other with wooden staffs. Even if it is assumed
that they may not have come with the intention of killing, the fact
that they were armed, clearly indicates that the occurrence did
not take place in the heat of passion, upon a sudden quarrel. As
pointed out above, both sides were coming to attend a Panchayat
6
to settle a dispute. Where was the need to carry arms if the
intention was only to settle a dispute? Even otherwise, we feel
that Exception 4 is not applicable because the manner in which
the blow was given right on the middle of the head, brings this
case squarely within clause “Fourthly” of Section 300 IPC, which
reads as follows:
“300. Murder – xxx xxx xxx
Secondly xxx xxx xxx
Thirdly xxx xxx xxx
Fourthly If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is
likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such
injury as aforesaid.”
8. A1 should have known that the act which he is performing,
of hitting the deceased on the head with a sickle with such great
force causing fracture of the skull, is so dangerous that it would
have imminently caused death. Therefore, we find no reason to
alter the sentence or conviction of Guru @ Gurubaran (A1).
9. However, as far as Durai @ Durairajan (A2) is concerned,
since the High Court has held that neither Section 34 nor Section
7
149 IPC are applicable, each accused will only be responsible for
his own acts and injuries. In this behalf, reference was made to
a judgment of this Court in the case of Atmaram Zingaraji vs.
State of Maharashtra1
. There is no appeal by the State. As far
as A2 is concerned, he is alleged to have given a blow with an
iron pipe on the back of the neck of the deceased. This resulted
in injury numbers 2 and 3. They are merely abrasions and could
not have caused death. Therefore, the accused can only be held
guilty of having committed the offence under Section 324 IPC.
He has already undergone imprisonment for around 11 years
and, therefore, his conviction under Section 302 IPC is altered to
Section 324 IPC and the sentence is reduced to the period of
incarceration already undergone. As far as Vettri @ Vetrivell (A3), Narayanan (A5) and Srinivasan (A9) are concerned, we find
no reason to interfere with the judgment of the High Court as
each has been held guilty for the offence which they have
committed.
10. In view of the above, the appeal of Accused Nos. 1, 3, 5 and
9 is dismissed and the appeal of Accused No. 2 is allowed and his
1 (1997) 7 SCC 41
8
conviction is altered from offence punishable under Section 302
IPC to offence punishable under Section 324 IPC and the
sentence is reduced to the period of incarceration already
undergone.
11. AccusedAppellant Nos.1 & 2 were granted bail vide this
Court’s order dated 08.01.2018. In view of the above, bail bond
of Appellant No.1 (A1) is cancelled. He shall be taken into
custody forthwith to serve remaining period of the sentence and
bail bond of Appellant No.2 (A2) is discharged. Pending
application(s), if any, stand(s) disposed of.
…………………………J.
(Deepak Gupta)
…………………………J.
(Aniruddha Bose)
New Delhi
September 27, 2019
9
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1893 OF 2010
GURU @ GURUBARAN & ORS. …APPELLANT(S)
Versus
STATE REP. BY INSP. OF POLICE …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against
the judgment of the High Court whereby Guru @ Gurubaran (A1)
and Durai @ Durairajan (A2) have been convicted under Section
302, Indian Penal Code (IPC) and sentenced to imprisonment for
life and to pay a fine of Rs.1000/ each with default sentence of 3
1
months rigorous imprisonment (RI). As far as Vettri @ Vetrivell
(A3) is concerned, he was convicted under Section 324 IPC on
two counts and sentenced to one year RI on each count and fine
of Rs.1000/ with default sentence of 3 months. Narayanan (A5)
and Srinivasan (A9) along with other accused were convicted
under Section 323 IPC and sentenced to undergo six months RI
and pay fine of Rs.1000/ each with default sentence of 3
months. All the sentences were to run concurrently.
2. The prosecution case is that Parasuraman (PW14), son of
deceased Saroja and Munusamy Pillai (PW1), was in love with
Uma, the younger sister of A1. They both got married and after
the marriage, PW14 lived in his wife’s house. However, Saroja
(deceased) did not approve of this. Thereafter, PW14 came back
to his house. On 03.03.1998, it is alleged that Jayaraman (A4)
assaulted Nagarajan (PW2), brother of Saroja and brotherinlaw
of PW1. To settle the dispute, a Panchayat was called the next
day. It is admitted that this Panchayat was called at the instance
of A1. The Panchayat was to be conducted in the evening.
However, since the Pradhan of the Panchayat was indisposed, the
2
Panchayat could not be held. Thereafter, PW2, his sister Saroja
(deceased), his wife Rani (PW7), Murugan (PW13) and Naveen
Kumar, son of PW2 and PW7 stood outside the house of PW2
talking amongst themselves. According to him, PW13 had come
to the village because of the Panchayat. While they were
standing there, A1 came armed with a sickle (Koduval), A2
armed with an Iron Pipe, A3 armed with a sickle (Koduval) and
A4 to A9 carrying thick wooden staffs in their hands. It is
alleged that A1 attacked deceased Saroja with a sickle on the
front portion of her head and said that it was only because of her
that the younger sister of A1 has to live separately from her
husband. A2 gave a blow on the back of the neck of Saroja with
an iron pipe. The other accused are alleged to have attacked
Saroja with wooden staffs in their hand. When the family
members of Saroja tried to protect her, all the 9 accused
surrounded her and, as such, they could not protect her.
According to the eyewitnesses, they were also attacked by the
members of the aggressive party. The version of all the eyewitnesses is similar.
3
3. However, there are some discrepancies with regard to the
manner in which the said incident took place. According to PW1, on the date of Panchayat, first a verbal altercation took place
between the two sides and then the attack took place whereas,
according to PW2 and some of the other eyewitnesses, the
attack took place without any provocation. We are of the
considered view that for the purpose of deciding this appeal, we
can even presume that there was some verbal altercation
between the two sides.
4. The occurrence is not denied. The main defence is that
there was a free fight on both sides and that there is no evidence
to show that there is prior meeting of minds. The accused had
not been convicted under Section 34 or Section 149 IPC and,
therefore, each individual accused can only be convicted for the
injury attributed to that individual. Therefore, it becomes
relevant to refer to the medical evidence of the autopsy surgeon
Dr. Rajamani, Assistant Surgeon (PW3). The injuries are as
follows:
“1. An Antemortem red, oblique lacerated wound
measuring 6cm x 1cm x 1cm, exposing the bones over the
4
left frontal region of scalp, 1 cm away from the midline with
bleeding and blood clots. On Exploring the wound,
echymosis seen behind the scalp over the frontal, parietal,
temporal and back of skull. There is a fracture of frontal
bone measuring 5 cm in length, vertical, para sagittally and
1cm away from midline over the left side, extended to
upwards to fronto parietal junction, and another fracture
line which is adjacent to it and slightly oblique from the
frontal bone to towards fronto parietal junction, 4cm x 1/8
on and on exposing the skull bones blood clots seen over
the membranes of the leftcerebral hemisphere of brain on
the frontal, parietal, temporal and occipital region, of the
brain. Both fractures are involving inner and outer table of
the skull.
2. An abrasions varying size from 3cm to 21/2cm x ¼ cm
with ½ cm different from each other, oblique, placed over
middle 1/3 of right side neck.
3. An AM abrasion 21/2cm x ¼ cm obliquely placed 1cm
away from injury No.2 on right side of neck.
4. An AM swelling whole of the anterior and lateral side
of right side neck. On exposing the injury No.2, 3, 4 minor
blood clots under the skin of neck and congestion of
sternomastoid muscle and blood clots seen in anterior and
lateral side of right side neck.”
5. The doctor states that these injuries caused the death. The
first injury is a lacerated wound and it is urged by
Mr. S. Nagamuthu, learned senior counsel, that this injury could
not have been caused by sickle (Koduval), which is a sharpedged
weapon. A sickle is an instrument mainly meant for cutting
grass and crops. The inner side is sharp but the outer side is
blunt. While using it as an instrument of agriculture only, the
sharp edge is used but while using it as a weapon of offence,
more often than not, it will be the outer side which will be used to
5
hit the victim. The doctor has opined that the injury could have
been caused by a sickle which is MO1 and, therefore, the
medical evidence fully corroborates the version of all the eyewitnesses.
6. It was next urged that the offence was not of murder but
may amount to culpable homicide not amounting to murder. It
has been urged that the case would fall within Exception 4 to
Section 300 IPC, which reads as follows:
“Exception 4 – Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.”
7. We are of the view that the accused cannot take benefit of
this Exception. It has come in evidence that all the accused
persons came armed. Two were armed with sickles, one with an
iron pipe and the other with wooden staffs. Even if it is assumed
that they may not have come with the intention of killing, the fact
that they were armed, clearly indicates that the occurrence did
not take place in the heat of passion, upon a sudden quarrel. As
pointed out above, both sides were coming to attend a Panchayat
6
to settle a dispute. Where was the need to carry arms if the
intention was only to settle a dispute? Even otherwise, we feel
that Exception 4 is not applicable because the manner in which
the blow was given right on the middle of the head, brings this
case squarely within clause “Fourthly” of Section 300 IPC, which
reads as follows:
“300. Murder – xxx xxx xxx
Secondly xxx xxx xxx
Thirdly xxx xxx xxx
Fourthly If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is
likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such
injury as aforesaid.”
8. A1 should have known that the act which he is performing,
of hitting the deceased on the head with a sickle with such great
force causing fracture of the skull, is so dangerous that it would
have imminently caused death. Therefore, we find no reason to
alter the sentence or conviction of Guru @ Gurubaran (A1).
9. However, as far as Durai @ Durairajan (A2) is concerned,
since the High Court has held that neither Section 34 nor Section
7
149 IPC are applicable, each accused will only be responsible for
his own acts and injuries. In this behalf, reference was made to
a judgment of this Court in the case of Atmaram Zingaraji vs.
State of Maharashtra1
. There is no appeal by the State. As far
as A2 is concerned, he is alleged to have given a blow with an
iron pipe on the back of the neck of the deceased. This resulted
in injury numbers 2 and 3. They are merely abrasions and could
not have caused death. Therefore, the accused can only be held
guilty of having committed the offence under Section 324 IPC.
He has already undergone imprisonment for around 11 years
and, therefore, his conviction under Section 302 IPC is altered to
Section 324 IPC and the sentence is reduced to the period of
incarceration already undergone. As far as Vettri @ Vetrivell (A3), Narayanan (A5) and Srinivasan (A9) are concerned, we find
no reason to interfere with the judgment of the High Court as
each has been held guilty for the offence which they have
committed.
10. In view of the above, the appeal of Accused Nos. 1, 3, 5 and
9 is dismissed and the appeal of Accused No. 2 is allowed and his
1 (1997) 7 SCC 41
8
conviction is altered from offence punishable under Section 302
IPC to offence punishable under Section 324 IPC and the
sentence is reduced to the period of incarceration already
undergone.
11. AccusedAppellant Nos.1 & 2 were granted bail vide this
Court’s order dated 08.01.2018. In view of the above, bail bond
of Appellant No.1 (A1) is cancelled. He shall be taken into
custody forthwith to serve remaining period of the sentence and
bail bond of Appellant No.2 (A2) is discharged. Pending
application(s), if any, stand(s) disposed of.
…………………………J.
(Deepak Gupta)
…………………………J.
(Aniruddha Bose)
New Delhi
September 27, 2019
9
