& Ors Vs. State of Tamilnadu  Insc 348 (14 August 2002)
Hegde & Bisheshwar Prasad Singh. Bisheshwar Prasad Singh, J.
appeal is directed against the judgment and order of the High Court of Madras
dated 21st September,
2002 passed in
Criminal Appeal. No.293 of 1990 filed by the appellants against the judgment
and order of the Sessions Judge dated 3rd August, 1990 whereby appellants 1 and 2 were
found guilty of the offences under Sections 341, 302/109 IPC and appellant No.3
was found guilty of the offence under Section 341 and 302 IPC.
appellants have been sentenced to 6 months rigorous imprisonment under Section
341 IPC and life imprisonment under Section 302/109 and 302 IPC. The High Court
by the impugned judgment and order dismissed the appeal and affirmed the
judgment and order of the trial court.
leave was granted limited to the question as to whether the offence proved
falls under Section 304 IPC and whether the conviction and sentence under
Section 302, 302/109 IPC calls for modification.
No.1 Munuswamy is the father of appellants 2 and 3, namely Kumaresan and Selvam.
It is the case of the prosecution that on 28th April, 1989 at about 3.00 p.m. while PW.3 Adhimoolam was drying beedi leaves, appellant No.1
came at about 4.00 p.m. and waited by the side of the road.
About half an hour later deceased Ravi
came on a bicycle. He was followed by appellants 2 and 3 who also reached the
place of occurrence following him. Appellant No.1 stopped the deceased while
appellants 2 and 3 who came from behind dashed their bicycle against the
bicycle of the deceased. The deceased left his bicycle and started running away
chased by the appellants.
the accused over-powered him and while appellant No.1 caught hold of the right
hand of the deceased, accused No.2 caught hold of the left hand of the
deceased. Appellant No.1 ordered that the deceased should be stabbed and
immediately appellant No.3 took out a pen knife from his hip and stabbed the
deceased on the right side of his chest. They dragged the deceased and made him
lie down near the road. This incident was also witnessed by Ravi, PW. 4 who was grazing his cattle near the scene of
occurrence. They reported the matter to the father of the deceased who went to
the police station and lodged the complaint. After investigation, the
appellants were put up for trail and were ultimately found guilty of the
offences as earlier noticed.
medical evidence on record disclosed the following injuries on the body of the deceased
incised gaping wound 8 cm x 3 cm over (R) interior aspect of chest at the level
of right nipple with exposing muscle and rib (4th) beneath.
lacerated wound 3 cm x 2 cm x bone depth seen over ( R ) side of parietal
abrasion 3 cm x 2 cm seen over ( R ) leg.
abrasion 4 cm x 3 cm seen over ( R ) buttock region.
Internal examination : Thorax : An incised wound 6 cm x 2 cm x lung beneath
seen on the anterior aspect of pleura with 1200 ml. of bloody fluid in the ( R
) Throacic cavity. Lungs : Right lung 510 g. wt. An incised wound 2 cm in
breath over the edge of medical aspect of upper lobe of right lung. C/s. normal
appearance and pale. Left Lung : 500 gms. wt. C/s. normal appearance and pale.
: 340 g. wt. Great vessels on the anterior aspect of the Aorta a cm x cm
punctured like wound seen at the root of Aorta with clotted blood coming out. On
pressure from the Aorta." According to PW.2, the doctor who conducted the
post mortem examination on the body of the deceased, the deceased died of shock
and hemorrhage due to injury on vital organs. It is also the case of the
prosecution that the deceased died almost instantaneously.
have carefully perused the evidence on record and we find that this is not a
case where the appellants accidentally met the deceased with whom they had
enmity of some sort, and at the spur of the moment the assault took place.
sought to be contended on behalf of the appellants that appellant No.1 had
merely caught the hand of the deceased and appellant No.2 also did the same. It
was only appellant No.3 who stabbed the deceased. According to learned counsel,
appellants 1 and 2 can only be held guilty of the offence under Section 341 IPC
while the appellant No.3 can at best be said to have committed an offence
punishable under Section 304 IPC.
never intended to commit the murder of the deceased since the knife used by
appellant No.3 was only a pen knife. Learned counsel, however, could not
controvert the fact that the knife had a long blade enough to cause the
injuries of the nature found. It is also worth noticing that apart from two
abrasions there was also an incised gaping wound on the chest and a lacerated
wound over the right side of parietal region.
regard to the nature of the injuries and their location, it would be difficult
to accept the submission that the person who assaulted the deceased with a
knife did not intend to cause the death of the deceased.
appellants came to the place of occurrence in a planned manner. The evidence is
clear that appellant No.1 came first and waited by the side of the road.
Thereafter appellants 2 and 3 came on a bicycle closely following the deceased.
No.1 stopped the deceased and appellants 2 and 3 made sure that the deceased
did not escape by dashing their bicycle against his bicycle with the result
that the deceased had to abandon his bicycle and run for his life. Even
thereafter they chased him and while appellants 1 & 2 caught hold of his
hands, appellant No. 3 stabbed him with the knife. These facts clearly disclose
a pre-concerted plan to assault the deceased at the place selected by the
No.1 is said to have exhorted his son to stab the deceased. Obviously he knew
that his son was carrying a knife or some such weapon, otherwise the words
'stab' would not have been used by appellant No. 1. He may have merely exhorted
his son to assault the deceased. This itself is a clear indication of the fact
that accused No. 1, the father, knew that his son was carrying a knife.
facts and circumstances of the case we are satisfied that so far as appellant
No.3 is concerned, he is guilty of the offence under Section 302 IPC. It will
not be possible to bring his case under any of the exceptions and to record his
conviction and sentence under Section 304 IPC.
as appellants 1 & 2 are concerned, they have also been rightly found guilty
of the offence under Section 302/109 IPC. The evidence leaves no room of doubt
that the appellants had entered into a conspiracy for killing the deceased and
pursuant thereto appellant No.1 waited at the spot while appellants 2 and 3
followed the deceased on their bicycle. All of them chased the deceased. After
he was over-powered by appellants 1 & 2, on the order of appellant No.1,
appellant No.3 stabbed him. It cannot be said in the facts and circumstances of
the case that the act of appellant No.3 was merely his individual act, and that
appellants 1 and 2 cannot be held guilty of the offence under Section 302/109
IPC. On the facts found this is a case of abetment by conspiracy in which all
the conspirators were present and actively participated when the plan was
therefore, find no merit in this appeal and the same is accordingly dismissed.