& Ors Vs. State Through Inspector Of Police, Tamil Nadu  Insc 1215 (4 December 2007)
Sinha & Harjit Singh Bedi
APPEAL NO.1276 OF 2005 S.B. Sinha, J.
This appeal is directed against a judgment and order dated 14.10.2004 passed by
a Division Bench of the Madras High Court, Madurai Bench in Criminal Appeal
No.115 of 1997 whereby and whereunder the appeal preferred by the appellants
herein against a judgment of conviction and sentence dated 10.2.1997 passed by
the Additional District & Sessions Judge-cum-Chief Judicial Magistrate, Ramanathpuram
convicting the accused No.7 under Section 302 of the Indian Penal Code and
sentencing him to undergo life imprisonment and accused Nos.8, 9 and 10 under
Section 324 of the Indian Penal Code and sentencing them to undergo one year's
rigorous imprisonment was dismissed.
quarrel ensued between the prosecution party and the accused on 10.7.1973 in
regard to drawing of water from a well. Accused were said to have been bearing
grudge towards the deceased as a criminal case was instituted against them at Kumuthi
Police Station. On 4.8.1993, at about 6.15 pm, a procession of villagers was taken out for celebrating a festival
known as "Mulaipari" festival. It started at village Keelamathupatti.
When the procession reached near the village known as Gandaru, with a view to
commit murder of PW-5, Nagarajan and other persons, the accused persons who
were 11 in number allegedly formed an unlawful assembly with weapons like
knife, cycle chains and sticks in their hands. Accused No.1, Subramanian, and
accused No.3, Selvaraj, are said to have instigated others to commit murder of
PW-5 Nagarajan consequent whereupon accused No.4, Ramu, attacked him with a
stick causing a fracture on his right hand. When deceased Kannan tried to
obstruct him from doing so, accused No.4, Ramu, instructed accused No.2, Selvaraj,
to kill him also. Consequently, accused No.2, Selvaraj, caught hold of the
hands of Kannan, whereas accused No.6 caught hold of his shoulders. Taking
advantage of the said situation, the appellant No.1 herein (accused No.7 - Murugan)
is said to have stabbed him with a knife on his chest. Appellant No.1 is said
to have caused an injury on PW-1, Chithiraichamy, also with his knife, whereas
accused No.8 attacked PW-1 with cycle chain and caused an injury on his head
thereby. Appellant No.3- Selvaraj, (accused No.9) is said to have attacked
PW-3, Kathirvel, with a knife on his nose and head whereas accused No.10, Boomi,
attacked PW-3 with a cycle chain and caused injuries to him. PW-2, Murugesan
was also attacked with a stick.
First Information Report was lodged immediately after the said occurrence. Out
of 11 accused, however, only accused No.7 and 8 to 10, were convicted and
sentenced in the manner, as noticed hereinbefore, whereas others were
acquitted. An appeal preferred thereagainst by the appellants herein has been
dismissed by reason of the impugned judgment.
Naphade, learned senior counsel, in support of the appeal, would, inter alia, submit
Appellant No.1 having inflicted only one blow with a knife on the deceased, the
offence, if any, committed by him falls under Section 304 Part II of the Indian
Penal Code and not under Section 302 thereof.
Appellant No.2 (accused No.8), having examined defence witnesses to prove his
plea of alibi, the learned Sessions Judge, as also the High Court, committed a
serious error in recording a judgment of conviction against him.
this connection our attention has been drawn to the following purported
findings of the learned Sessions Judge :
8th accused has not committed the offence punishable under Section 324
All the other accused having caused only simple injuries, sentence of one
year's rigorous imprisonment is on the higher side.
V. Kanakaraj, learned senior counsel appearing on behalf of the State, on the
other hand, supported the impugned judgment.
prosecution, in support of its case, examined twenty one witnesses.
nature of evidence of the eye-witnesses to the occurrence whereupon strong
reliance has been placed by both the learned Sessions Judge as also the High
Court being identical in nature, we would notice the deposition of PW-1, Chithiraichamy,
only. He spoke about the incident which took place on 4th August, 1993. A complaint was made to him by a
woman named Malathi. She was reprimanded by him stating that there should not
quarrel over drawing of water. She was sent back to her home.
was the daughter of the accused No.2. While the deceased and the injured
persons including the said PW-1 had been participating in the said procession,
accused No.1 to 3 came and gave an exhortation to cut and kill Nagrajan.
Accused No.4, Ramu, is said to have assaulted in his right forearm. The
deceased Kannan intervened. He asked them not to do so, whereupon accused No.2
gave an exhortation to kill him, pursuant whereto accused No.6, Challaiah
caught hold of both his shoulders as a result whereof, he could not make a
move. Appellant No.1, Murugan, stabbed him on the left side of his chest. While
PW-1 asked the assailants not to do so, Appellant No.1 attempted to stab him
also on his neck with a knife but as he turned his neck on the right side, a
laceration was caused on the right side of his neck. Accused No.8 also attacked
him with a cycle chain on his head.
wanted to cause an injury to appellant No.2 (accused No.8) with a small knife
but he was prevented from doing so by one Palaniammal as a result whereof Palaniammal
suffered a laceration in his right hand.
No.3, Sathiah (accused No.9) stabbed Kathirvelu in his hand with a knife as a
result whereof he received an injury. Accused No.10, Boomi, assaulted Kathirvelu
with a cycle chain on his head resulting in causing bleeding injury on his head
and the right side nose. Accused No.11 Ramamoorthi (accused No.4) assaulted
witness Murugasan with a stick on his right upper arm whereupon all persons
shouted whereafter the accused ran away.
not only, thus, described the incident in great details but also identified the
material objects which were seized at the instance of the accused persons being
the weapons of offence. Evidence of PW-2 and other witnesses are also on the
Appellants had a motive. They came in a group. All of them were armed. Both
parties are related to each other. An occurrence had taken place which took
place on 10th July,
1993 giving rise to
initiation of a criminal case. They, with a view to take revenge, caused murder
of Nagarajan and injuries on some of the prosecution witnesses. The prosecution
witnesses were injured witnesses.
cogent argument has been advanced by Mr. Naphade so as to enable him to hold
that of the said witnesses are not trustworthy. They have been believed by the
courts below. Nothing has been pointed out to us as to why we should differ
with the said findings.
Intention on the part of a person to commit murder must be gathered from the
backdrop of events and the circumstances attending thereto.
similar question came up for consideration before this Court in Virsa Singh v.
State of Punjab [1958 AIR SC 465], wherein this Court, upon a detailed analyses
of the provisions of Sections 299 and 300 of the Indian Penal Code opined that
in order to attract "thirdly" contained Section 300 of the Indian
Penal Code, it must be established :
put it shortly, the prosecution must prove the following facts before it can
bring a case under Section 300 "thirdly";
it must establish, quite objectively, that a bodily injury is present;
the nature of the injury must be proved; These are purely objective
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.
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."
the aforementioned factors are established, absence of any knowledge that an
act of that kind would likely to cause death become immaterial. The intention
to cause the bodily injury, if proved, the rest of the enquiry would be 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
medical evidence, emanating from the deposition of PW-12, Dr., Meenakshisundaram,
found the following external injuries on the body. (1) A cut injury measuring 1
x > x 3" on the left side chest. It was in the outer aspect of the 6th
left side rib bone between the middle of the collar bone. On opening the wound,
the wound has injured the intercostals muscles and blood vessels in the middle
rib bones. It has punctured the left ventricle. The injury was slanting and
upwards and forwards. It has pierced the left ventricle. There was 1= litres of
colour changed blood in the thorasic cavity. The internal injuries were as follows
was no fracture of the head and rib bones.
was empty and pale and was weighing 250 grams. The left ventricle was
punctured. The lungs was pale and was weighing 500 grams, and was wet when
pressed. Abdomen was normal stomach was containing digested food. Liver weighed
1450 grams and was pale and was wet when pressed. Spleen was also wet when
pressed and weighed 165 grams, and was pale. Kidneys were pale and moist on
pressure. Intestines empty.
empty. There was no fracture on the pelvis. Hyoid bone was intact and the skull
was also intact. Skull membranes were intact. Brain was pale and weighed 1450
grams. There was no intra-cranial haemorrhage in the brain and was weighing
1250 grams. There was no fracture in the spinal chord."
Infliction of a single injury by itself is not a relevant factor to hold that
the assailant had no intention to cause murder of the deceased. What is
important in a case of this nature is to consider the entire circumstances to
arrive at one conclusion or the other. When a group of people come with an intention
to assault particular person(s), with dangerous weapon, the same would attract
to principles laid down in Virsa Singh (supra). Prosecution witnesses testified
in regard to their intention.
Singh's case has been followed by this Court in Anil v. State of Haryana [2007 (7) SCALE 56].
We, therefore, are unable to accede to the submissions of Mr. Naphade that
appellant No.1 had no intention to cause death of Nagarajan.
in this case, there was enough material to convict other appellants for
commission of an offence under Section 302/34 of the Indian Penal Code,
unfortunately, the appellants, other than the first appellant, have been only
convicted under Section 324 of the Indian Penal Code. As the State did not
prefer any appeal thereagainst, this Court is unable to alter the judgment of
conviction and sentence.
The learned Trial Judge appears to have committed more than one mistake in his
judgment. He, while analysing the evidence of DW-1, who was examined on behalf
of appellant No.2 (accused No.8) to prove alibi on his part, although came to
the conclusion that the said evidence was not acceptable, as indicated
hereinbefore, arrived at the finding that the 8th accused has not committed the
offence under Section 324 of the Indian Penal Code. Evidently, a typographical
error has crept in as otherwise he could not have convicted him along with
appellants No.3 and 4 for commission of an offence under Section 324 of the
Indian Penal Code. We may also notice that whereas in the beginning of the
judgment, he recorded the sentence imposed upon appellants No.2 to 4 to undergo
rigorous imprisonment for three years, in the operative part of the judgment,
he directed that they were sentenced to undergo rigorous imprisonment for one
year only. We have, however, no option but to hold that the later part of the
judgment should be taken to be correct.
far as the purported plea of alibi of appellant No.2 is concerned, a clear
finding has been arrived at that DW-1 has manipulated Exhibit D-3 just to help
the said accused. The High Court also agreed with the said view.
not see any reason to differ with the views of the learned Sessions Judge as
also the High Court.
For the aforementioned reasons, we do not find any merit in this appeal. It is