Vs. State by Inspector of Police, Tamil Nadu  INSC 1350 (31 July 2009)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 1375 2009 [Arising out of SLP (Crl.) No. 6729 of 2006] Padmanaban ...
Appellant VERSUS State By Inspector of Police, Tamil Nadu ... Respondent WITH
CRIMINAL APPEAL NO. 1376 2009 [Arising out of SLP (Crl.) No. 3262 of 2007]
Bammiyampatti is a small village situated in the District of Salem
in the State of Tamil Nadu. Amongst others, it is inhabitated by two
communities known as `Naidu' community and `Adi Dravida' community. The fact
that there has been longstanding enmity between the members of the said
communities is not in dispute.
A function was to be organized by Adi Dravida community.
Rangasamy, deceased was having a grocery shop. He despite being belonging to
the Naidu community, permitted the members of the other community to take
electricity from his shop. Having come to learn of the same, the accused
persons, originally eight in number, got infuriated. Rangasamy was threatened
with dire consequences for his act in supplying electrical energy to the
members belonging to the Adi-Dravida community at about 10 p.m. on 29.03.1997.
Next morning, i.e., on 30.03.1997, at about 11.30 a.m., the accused persons
came to his shop with casuarina sticks, trespassed therein and at the
instigation of Accused No. 1 T. Purushothaman Accused No. 3 Murugan and Accused
Nos. 6 to 8 caught him whereafter Accused No. 2 Ravi hit the deceased with a
casuarina stick on the left side of the head, Accused No. 4 Mohan assaulted him
on the right side of the head with a casuarina stick and Accused No. 5 V. Padmanaban
assaulted him on the right side of the face near the eye causing grievous
injuries to him. The incident was witnessed by PW-1 Viswanathan, PW-2 Chandra
and PW-3 Raman.
It is not
much in dispute that PWs 1 and 2 along with one Govindasamy took the injured
Rangasamy to the Omalur Government Hospital at about 12.20 p.m. He was treated
by Dr. Kumudha Rani, PW-7. Mention of the incident found place in the accident
register (Exhibit P-14). The deceased was referred 3 to the Government
Hospital, Salem for further treatment by PW-7, upon taking into consideration
the seriousness of the injuries suffered by him.
Omalur Government Hospital at Salem was situated at a distance of about 23 kms.
from the place of occurrence. The deceased was examined by Dr. G.
Sundaramurthy, PW-8 at about 1.00 p.m. It is evidenced by the entries in the
Accident Register which was marked as Exhibit P-15. However, the injured was
taken to a private nursing home known as Shanmuga Nursing Home. It is also not
in dispute that despite making entries in the accident registers both by the
attending doctors at the Omalur Government Hospital as also Salem Government
Hospital, the SHO of the concerned police station was not intimated thereabout.
Dr. Murugavel, PW-9 examined Rangasamy. He, however, did not respond to the
treatment. He expired at about 4.00 a.m. on 31.03.1997.
PW-1 lodged a First Information Report at about 8.30 p.m. on
30.03.1997. The said First Information Report was recorded by PW-13 V. Shanmugham,
Inspector of Police of Theevattippatti Police Station. It was registered as
Crime Case No. 184 of 1997 under Sections 147, 148, 452, 341 and 307 of the
Indian Penal Code. On the death of Rangasamy, however, the charge was altered
by PW-13 to Sections 147, 148, 452, 341 and 302 of the Indian Penal Code. The
body of the deceased was sent for post mortem 4 examination. The post mortem
report suggests that he died because of head injuries sustained by him.
At the outset, we may place on record that the Accused No. 1
not face trial. Accused No. 3 died during pendency of the trial and, thus, the
case against him abated.
Before the Additional District and Sessions Court - cum - First
Fast Track Court, Salem, the prosecution examined 13 witnesses to prove its
case against the accused person. A large number of documents being Exhibits P-1
to P-32 were also marked. Material exhibits brought on record were marked as
MOs 1 to 12.
learned Sessions Judge recorded a judgment of conviction against Accused Nos. 2
and 4 to 8. They were sentenced to undergo rigorous imprisonment for life. A
fine of Rs. 500/- was also imposed on them and in default thereof to undergo
rigorous imprisonment for 50 days.
Accused Nos. 2 and 4 to 8 preferred appeals before the High Court
questioning the correctness of the said judgment of conviction and sentence. By
reason of the impugned judgment, whereas the High Court accepted the appeals
preferred by the Accused Nos. 6 to 8 on the premise that no overt act had been
5 attributed to them as also on the ground that PW-3 did not assign any
specific role so far as they are concerned, dismissed the appeals of the appellants
Appellants are, thus, before us.
Mr. P.R. Kovilan Poongkuntran, learned counsel appearing on behalf
of Accused No. 2 Ravi and Accused No. 4 Mohan, Mr. V. Kanagraj, learned senior
counsel appearing on behalf of the Accused No. 5 Padmanaban submitted:
prosecution having regard to the genesis of the occurrence cannot be said to
have proved its case beyond all reasonable doubt.
conduct of the prosecution witnesses should be held to be suspicious as they
had taken the deceased to a hospital which is 23 kms. away from the place of
Despite the fact that the police station was adjacent to the hospital, no First
Information Report was lodged although the concerned prosecution witnesses had
sufficient time therefor.
delay in lodging the First Information Report has not been explained.
doctors PWs 7 and 8 who were said to have treated the deceased even did not
inform the police although the incident was recorded in the accident registers
[Exhibits P-14 and P-15].
the accused persons having allegedly gone to the shop of the deceased with a
common intention, there was absolutely no reason as to why all of them were not
treated alike having regard to the fact that the Accused Nos. 6 to 8 were
acquitted of the charges levelled against them by the High Court.
High Court committed a serious error in passing the impugned judgment insofar
as it failed to take into consideration the individual overt acts of the
appellants herein in the light of deposition of PWs 1, 2 and 3.
reliance ought to have been placed on the deposition of PW-1 as occurrence
having been taken place inside a structure, he could not have witnessed the
incident in its minutest details from a distance of 10 feet.
1 and 2 being closely related to the deceased, no reliance should have been
placed on their testimonies by the High Court without any corroborative
evidence. PW-3, who otherwise is a chance witness, also should not have been
prosecution having failed to establish existence of any strong motive on the
part of the appellants to join their hands together in committing the offence,
the High Court should have recorded a judgment of acquittal.
any event, the appellants having no intention to cause death of the deceased,
at best, a case under Section 304, Part II of the Indian Penal Code has been
Mr. R. Nedumaran, learned counsel appearing on behalf of the
State, however, supported the impugned judgment.
PW-1 Vishwanathan, in his deposition, stated in details as to how
all the accused persons came to the grocery shop of the deceased and vandalized
of the PW-1 was adjacent to the shop of the deceased.
to him, the appellants were armed with casuarina sticks. He furthermore stated
that it was at the instance of Accused No. 1 Purushothaman, Accused No. 4 Mohan
struck a blow on the right side of the head of the deceased as a result whereof
he fell down where after Accused No. 2 Ravi 8 assaulted him on the left side of
the head and Accused No. 5 Padmanaban assaulted him on his face near the right
evidence of PW-1 is sufficiently corroborated by PW-2 Chandra and PW-3 Raman.
It is also not in dispute that the deceased at the earliest
possible opportunity was taken to the Omalur Government Hospital and on being
referred to the Government Hospital, Salem was taken there. As the Chief
Medical Officer of the Government Hospital, Salem was not available, for better
medical treatment, the deceased was taken to the Shanmuga Nursing Home.
PW-7 Dr. Kumudha Rani, who was an Assistant Surgeon in the Omalur
Government Hospital found the following injuries on the person of the deceased:
A lacerated wound 10 cm x 1 cm x = cm over right parietal bone near midline.
lacerated wound 8 cm x 1 cm x = cm over left parietal bone near midline.
Contusion 4 cm x 3 cm right upper eye lid."
Dr. G. Sundaramurthy, PW-8 who was working at Government Hospital,
Salem admittedly treated the deceased as an inpatient. The deceased was
admitted in the Shanmugha Nursing Home at about 6.35 p.m.
Shanmugham, Inspector of Police of Theevattippatti Police Station received a
telephonic message from the Nursing Home. He arrived at the Nursing Home at
about 7 O'Clock, recorded the statement of Viswanathan, brother-in-law of the
deceased (PW-1). The First Information Report was registered by him after
coming back to the police station at about 8.30 p.m. He visited the place of
occurrence on the next day. By that time, as noticed hereinbefore, the deceased
breathed his last.
The post-mortem examination of the deceased was conducted by PW-11
Dr. Vallinayagam. The injuries found by him on the person of the deceased are
A lacerated wound on the right side of the crown of the head.
2. A lacerated
wound on the left side of the crown of the head.
Contusion over the right eye brow.
Further, on the crown of the head, a lacerated wound on the right side.
Contusion on the back side of the head."
also recorded the manner in which the incident had taken place as also the
weapons of attack. Indisputably, the casuarina sticks were recovered on the
basis of the statements of the appellants. Both the courts below have placed
implicit reliance on the evidence of PWs 1, 2 and 3. We have been taken through
their depositions and we do not find any reason to differ therewith.
PWs 1 and 2 may be closely related to the deceased but the same,
in our opinion, by itself, would not be a ground for rejecting their
not related to the deceased. The injuries suffered by the deceased have been
proved. The medical evidences in no uncertain terms corroborate the depositions
of the eye-witnesses. The injuries on the person of the deceased were found to
have been inflicted by the appellants and the appellants alone.
that the shop of the deceased was located near the residential colony of the
members of the Adi Dravida Community is not in dispute. It is also not in
dispute that they held a function on the Republic Day. The fact that electrical
11 connection was taken from the shop premises of the deceased wherefor a case
for theft of electrical energy was recorded has been established.
eye-witnesses account clearly proved the motive on the part of the accused to
commit the said offence. The deceased being a member of the Naidu Community was
reprimanded by his community member as he had tried to do something for the
members of the other community.
along with others were members of an unlawful assembly.
to the shop of the deceased with deadly weapons. It was witnessed, apart from
PWs 1 and 2 also, by PW-3 who was owner of a tailoring shop which was situated
by the side of the shop of the deceased. PW-3 was a witness to both part of the
occurrence, viz., the action on the part of the accused to come to the shop of
the deceased and threatening him in the night of 29.03.1997 and their visit on
the following morning and assaulting the deceased ultimately resulting in his
death. The occurrence might have taken place on Sunday but there is nothing to
show that the shops were closed.
Submission of Mr. Kanagraj that PW-1 could not have seen the
occurrence from a distance of 10 feet cannot be accepted. The occurrence has 12
taken place inside a shop and not inside a residential house. The shop being
open, we find no reason to disbelieve the deposition of PW-1 to state in
details in regard to the manner in which the occurrence had taken place.
of PWs 2 and 3 at the place of occurrence has also been found to be acceptable
by the courts below.
Some delay might have been caused in lodging of the First
Information Report, but, the same has sufficiently been explained. It is true
that PW-7 in his evidence stated that he had sent the information to the police
station but he also admitted that the same was not recorded in the accident
register. PW-7 was examined on 22.04.2003., i.e., after a period of more than
six years from the date of the incident. At the time of his deposition, he was
working in the ESI Hospital, Salem as Medical Officer. The Inspector of Police
PW-13 in his evidence categorically stated that he received the telephonic
message at about 6 O'Clock in the evening from the Nursing Home and he reached
there at about 7 O'Clock. We do not find any reason to disbelieve the said
evidence brought on record by the prosecution.
No doubt lodging of a First Information Report at the earliest
possible opportunity is desirable. But, the courts cannot also ignore the
ground realities that the relatives of the deceased would give priority to the
treatment of a severely injured person. All attempts would first be made to
save his life. The action on the part of the prosecution witnesses, in our
considered opinion, in giving priority to the treatment to the injured was
PW-4 Sekaran, son of the deceased in his deposition, who has not
been cross-examined, categorically stated that he had been working in a company
known as Power Held Corporation of India at K.R. Thoppur. He was informed about
the incident by his maternal aunt Chandra (PW-2) when she came in a car and
took him to the Shanmugha Nursing Home where the deceased was admitted in its
Intensive Care Unit. The fact that he had to be brought to the Nursing Home by
PWs is again a pointer to the fact that they were busy in not only making
arrangements for proper medical treatment of the deceased but also intimating
the son of the deceased (PW-4) and bringing him to the hospital at the earliest
possible opportunity. We, therefore, are of the opinion that the delay in
lodging the First Information Report has sufficiently been explained.
Submission of Mr. Kanagraj that PWs 2 and 3 are chance witnesses
again cannot be accepted. PW-3, as noticed hereinbefore, is owner of a
tailoring shop 14 which is situated by the side of the shop belonging to the
deceased. The place of occurrence is a small village. PW-2's presence,
therefore, at the place of occurrence, cannot be doubted or disputed.
It is also idle to contend that the appellants had no motive to
kill the deceased. Prosecution witnesses in their depositions clearly brought
out the motive on the part of the accused to commit the crime.
Submission of Mr. Kanagraj that the appellants had committed an
offence only under Section 304, Part II of the Indian Penal Code cannot be
accepted for more than one reason. Appellants had formed an unlawful assembly.
They came to the place of occurrence with deadly weapons. The overt acts
attributed to them resulted in causing serious injuries on the head of the
deceased. They not only were grievous in nature, the skull of the deceased was
also found fractured. The intensity of the assault on the person of the
deceased by the appellants, therefore, can be well imagined. When three
injuries have been caused on vital parts of the body, we have no doubt in our
mind that the appellants knew that the said injuries were likely to cause death
or cause such bodily injury which may result in death.
In Virsa Singh v. State of Punjab [AIR 1958 SC 465] Bose, J. laid
down the legal principle in this behalf in the following terms:
considering whether the intention was to inflict the injury found to have been
inflicted, the enquiry necessarily proceeds on broad lines as, for example,
whether there was an intention to strike at a vital or a dangerous spot, and
whether with sufficient force to cause the kind of injury found to have been
It is, of
course, not necessary to enquire into every last detail as, for instance,
whether the prisoner intended to have the bowels fall out, or whether he
intended to penetrate the liver or the kidneys or the heart.
a man who has no knowledge of anatomy could never be convict, for, if he does
not know that there is a heart or a kidney or bowels, he cannot be said to have
intended to injure them. Of course, that is not the kind of enquiry. It is
broad-based and simple and based on commonsense; the kind of enquiry that
`twelve good men and true' could readily appreciate and understand."
The aforementioned dicta has been followed by this Court in a
large number of decisions including Kesar Singh & Anr. v. State of Haryana
[2008 (6) SCALE 433]. In view of the well-settled legal position, we need not
refer to all the decisions of this Court operating in the field, but, we may
notice Kesar Singh (supra).
Therein this Court considered a large number of decisions and stated the law in
the following terms:
put it shortly, the prosecution must prove the following facts before it can
bring a case under Section 300, "3rdly":
must establish, quite objectively, that a bodily injury is present;
the nature of the injury must be proved;
purely objective investigations.
it must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that
some other kind of injury was intended. Once these three elements are proved to
be present, the enquiry proceeds further and, Fourthly, it must be proved that
the injury of the type just described made up of the three elements set out
above is sufficient to cause death in the ordinary course of nature. This part
of the enquiry is purely objective and inferential and has nothing to do with
the intention of the offender.
these four elements are established by the prosecution (and, indisputably, the
burden is on the prosecution throughout) the offence is murder under Section
300, "3rdly". It does not matter that there was no intention to cause
death. It does not matter that there was no intention even to cause an injury
of a kind that is sufficient to cause death in the ordinary course of nature
(not that there is any real distinction between the two). It does not even
matter that there is no knowledge that an act of that kind will be likely to
cause death. Once the intention to cause the bodily injury is actually found to
be proved, the rest of the 17 enquiry is purely objective and the only question
is whether, as a matter of purely objective inference, the injury is sufficient
in the ordinary course of nature to cause death..."
Singh (supra), this Court noticed the deviation from Virsa Singh tests
beginning from State of Andhra Pradesh v. Rayavarapu Punnayya and Anr, [(1976)
4 SCC 382], to hold:
the propositions in Virsa Singh have not been rigidly followed subsequently.
For example, in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr, [(1976)
4 SCC 382], the enquiry became one of whether the accused intended to cause the
ultimate internal injury that led to death i.e. the Court inferred, from the
surrounding facts and circumstances in that case that the accused had intended
to cause the hemorrhage etc that ultimately led to death."
Court furthermore noticed the importance of the term "fight" used in
Section 299 of the Indian Penal Code to opine:
word "fight" is used to convey something more than a verbal quarrel.
It postulates a bilateral transaction in which blows are exchanged. In order to
constitute a fight, it is necessary that blows should be exchanged even if they
all do not find their target.
and Dhirajlal, Vol 2, page 1364, Footnote 4] No material in this regard has
been brought on record."
also Mohd. Asif v. State of Uttaranchal JT 2009 (4) SC 1 and Bala Baine Linga
Raju v. State of A.P., 2009 (7) SCALE 73]
For the reasons aforementioned, we do not find any merit in these
appeals. They are dismissed accordingly.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]