Moorthy Vs. State of
Tamil Nadu  INSC 1985 (19 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.578 OF 2001 Moorthy
.... Appellant Versus State of Tamil Nadu .... Respondent
Dalveer Bhandari, J.
appeal is filed by Moorthy son of Kuppan against the judgment of the High Court
of judicature at Madras in Criminal Appeal No. 377 of 1991 by which the
appellant was convicted under section 304 Part I IPC and sentenced to seven
years of imprisonment.
facts of the case which are necessary to dispose of this appeal are as under:-
2 PW1, Palaniammal and her son, Murugan, the deceased in this case were in
possession and enjoyment of a porambok land and regarding that there was a
dispute at the instance of the accused claiming a right to enjoyment and
possession to the said property. Accused 1 and 2 are brothers and the 3rd
accused has two young children called Senthil and Subhash.
The incident had
taken place on 18.5.1988 in the evening at about 4.30 p.m. Even on that morning
there was an incident in which the parents of accused 1 and 2 and the wife of
the 2nd accused sustained injuries which resulted in a complaint against the
deceased and others before the police. PW1, Palaniammal (mother of the
deceased) sustained a fracture in her leg when she accidentally fell down. She
was admitted as an inpatient in the Government hospital at Salem in the Female
Surgical Ward. At 4.45 p.m. on 18.5.1988, the deceased Murugan had visited his
mother in the hospital.
When he was talking
to his mother, accused 1 (Rathinam) and accused 2 (Moorthy) entered that Ward
with knives. Accused 1 stabbed Murugan on his stomach resulting in a bleeding
injury. Murugan, after sustaining an injury raised an alarm 3 and tried to
escape from that place by running away.
However, while he was
running, he tumbled over the steps and fell down in front of the Ward. Accused
1 and 2 chased him and after Murugan fell down, accused 1 and 2 over- powered
him and repeatedly attacked on his face and hands by knives. The 3rd accused
(Kuppayee) is stated to have caught hold of Murugan while the juvenile accused
Senthil and Subhash stated to have caught hold of his legs by pressing them
with their hands. At that time, PW2, who is grand-son of PW1 was there. He had
also come to the hospital for a courtesy visit. PW1, in her testimony stated
that accused 1 and 2 stabbed her son many a times simultaneously. Doctor after
examining Murugan declared him dead.
his body was taken to the mortuary. PW2, the Sub-Inspector of Police in the
Police Outpost Government Headquarters Hospital at Salem at about 5 p.m. on
18.5.1988 received a telephonic message about the incident and immediately
rushed to the scene of occurrence. PW12 recorded statement from PW1 with regard
to what had 4 happened and exhibited as P1. Thereafter PW13, the Inspector of
Police was informed. PW13, after receipt of the information proceeded to the
scene of occurrence at 6 p.m. and reached the Female Surgical Ward. He examined
He found the dead
body in the mortuary. PW13 found blood- stains on the ground and also on the
tar portion of the road.
PW10 is the Assistant
Civil Surgeon attached to the Government hospital, Salem. He conducted
post-mortem and found the following injuries.
"1. Lacerated 2
cm x .5 cm x.5 cm on the right side of the lower lip.
2. A stab wound 2 cm
x 1 cm x 2 cms over the right side of the face at the angle of middle.
3. An incised wound 2
cm x 5 cm x 5 cms over the right side of the face 3 cm below the right eye.
4. A stab wound 3 cms
x 1.5 cm x 6 cms over the right side of chest 10 cms below the right collar
bone 6 cm medial top the nipple.
5. A stab wound 2 cm
x 1 cm x 4 cms over the right side of the chest 2 cm away from injury no.4.
6. A stab wound 2 cm
x 2 cm x 6 cms over the right side of the chest 3 cms away from midline and 1
cm below the right nipple.
7. An incised wound 2
cms x 1 cm x .5 cm over the right side of the chest on the mid antillary line 6
cms below and away from right nipple.
8. A stab wound 4 cms
x 4 cms x 4 cms over the left side of the abdomen 4 cms above and away from
9. A stab wound 4 cms
x 3 cms x 5 cms at the spot of right axilla.
10. An incised wound
2 cms x .5 cms x .5 cms over the left side of the abdomen on the mid antillary
line 15 cms above the iliac crest.
11. An abrasion 6 cms
x 8 cms over the right front of the left keen joint.
12. An abrasion 6 cms
x .5 cms over the right front of the neck, 6 cms above the suprasternal notch.
13. A stab wound 4
cms x 2 cms x 7 cms over the back of the left side of chest 32 cms above the
posterior iliac spine.
14. A stab wound 4
cms x 2 cms x 4 cms over the centre of the back and below the nape of the neck.
15. A stab wound 3
cms x 2 cms x 6 cms over the centre of back 7 cms below injury no.14.
16. A stab wound 3
cms x 2 cms x 6 cms over the back of the right side of the chest 6 cms away
from injury no.14.
17. An incised wound
8 cms x 3 cms x 2 cms over the back of the right side of the chest 6 cms away
from injury no.15.
18. Laceration 8 cms
x 4 cms x 2 cm over the inner side of the left elbow.
19. Laceration 4 x 3
x 1 cm over inner side of left palm.
20. Laceration 5 cms
x cms x 1 cm over the dorsal aspect of the left palm.
Heart : Chambers
empty. On opening thorax cavity 200 ml. of dark fluid blood present.
Lungs : Right - 1.
Laceration 4 cms x 2 cms on the lower lobe.
2. A stab wound 3 cms
x 2 cms x 2 cms on the lower lobe 2 cms below injury no.1.
3. A stab wound 2 cms
x 2 cms x 3 cms on the middle lobe.
4. He found a stab
wound 3 cms x 2 cms x 3 cms found on the middle lobe 1 cm below injury no.3.
Left : Laceration 2
cms x 2 cms x 1 cm on the upper lobe. Cut section congested.
100 gms of partially digested;
particles. Stomach was also congested. No smell of alcohol.
doctor was of the opinion that the deceased appeared to have died of shock and
haemorrhage, as a result of the injuries sustained by him about 10 to 11 hours
prior to the post-mortem. The doctor was of the opinion that the injuries could
have been caused with a weapon like material 7 object No.1 - knife and death
must have occurred instantaneously.
appellant in his statement under section 313 of the Code of Criminal Procedure
stated that the deceased attempted to murder him with a knife in the Government
hospital and during the course of struggle between the deceased and the
accused, even the accused sustained injuries and according to him he was also
beaten by the deceased and the brother-in-law of the second accused stabbed the
deceased in self defence. It may be pertinent to mention that the statement
under section 313 is not corroborated by the medical evidence. The deceased had
received multiple injuries on the vital parts of the body which led to his
death. The appellant was examined in the government hospital, Salem and the
following minor and superficial injuries were found on him:
linear abreasions of varying sizes seen over the chest wall.
2. A lacerated injury
0.5 cm x 0.5 cm seen over the right little finger.
3. A lacerated injury
0.5 cm x 0.5. cm seen over the tip of the right thumb.
4. Two abrasions with
dull black colour seen over the left thumb near the root of the right terminal
5. Two abrasions dull
black in colour seen over the right side of the front of neck and on the left
side of the front of neck."
is the grand-son of PW1. He was also examined in the case. In his statement he
stated as under:- "PW1 Palaniammal is my grand mother and my mother's
mother. The deceased Murugan is my maternal uncle. On 28.5.1988, my
grand-mother PW1 was taking treatment for her injury in the Head Quarters
Hospital at Salem. On that day, at 4.45 p.m., I went to Salem for seeing my
grand- mother PW1 Palaniammal. When I was going into the ward where my
grand-mother was lying, my maternal uncle Murugan came running from the ward
with a stab injury on his stomach and crying "Ayo, Appah, Amma". At
that time the first accused Rathinam and the second accused Moorthy, each of
them having a knife in their hands, ran chasing my maternal uncle Murugan. The
3rd accused Kuppayee and the two juvenile accused also ran behind them.
On seeing the accused
coming with knife in their hands, I got out of the way. My uncle who was chased
by the accused fell down due to tripping on the steps. My uncle Murugan fell
down on face downwards. The first accused Rathinam and the second accused
Moorthy stabbed on his back repeatedly and simultaneously. My uncle rolled
turning his face upwards. At that time a stab fell on his hand. I did not
notice correctly who had stabbed. Both the accused had stabbed my uncle 9
simultaneously on his chest, breast and the stomach."
is the trained nurse on duty. PW4 is admitted as inpatient in Male Surgical
Ward. PW5 is the Sub-Inspector.
Trial Court vide judgment dated 30th March, 1990 acquitted the accused. The
respondent-State of Tamil Nadu filed an appeal against the said judgment of
acquittal before the High Court of Madras. The High Court re-examined and
re-evaluated the entire evidence on record and came to a definite conclusion
that acquittal of the appellant is unsustainable and because according to the
Trial Court the material available on record established the guilt of the
appellant particularly when the appellant in a statement under section 313
Cr.P.C. admitted his involvement in the occurrence which took place at 4.45
p.m. on 18.5.1988 in the hospital. The High Court had observed that even
according to the case of the appellant he caused those injuries in his self-
defence. The appellant has stated before the High Court that he cannot be
convicted solely on the basis of the stand taken by him when he was questioned
under section 313 of the 10 Code of Criminal Procedure. The High Court has
placed reliance on the judgment of this court in State of U.P. v. Lakhmi 1998
SCC 4 SCC 336. The relevant portion of the judgment which was relied on by the
High Court reads as under:- "It cannot be said that statement of an
accused recorded under section 313 of the Code does not deserve any value or
utility if it contains inculpatory admissions. The need of law for examining
the accused with reference to incriminating circumstances appearing against him
in prosecution evidence is not for observance of a ritual in a trial, nor is it
a mere formality. It has a salutary purpose. It enables the Court to be
apprised of what the indicted person has to say about the circumstances pitted
against him by the prosecution. Answers to the questions may sometimes be flat
denial or outright repudiation of those circumstances. In certain cases accused
would offer some explanations to incriminating circumstances. In very rare
instances accused may even admit or own incriminating circumstances adduced
against him, perhaps for the purpose of adopting legally recognized defences.
In all such cases the Court gets the advantage of knowing his version about
those aspects and it helps the Court to effectively appreciate and evaluate the
evidence in the case. If an accused admits any incriminating circumstance appearing
in evidence against him there is no warrant that those admissions should
altogether be ignored merely on the ground that such admissions were advanced
as a defence strategy."
the statement of the appellant under section 313 cannot altogether be ignored.
DW1 clearly stated in his testimony that 2nd accused told him that he sustained
injuries when he was involved in the incident at 4.45 p.m. on 18.5.1988 in the
Government hospital at Salem. The High Court on the basis of the evidence on
record reached at the definite conclusion that the medical evidence clearly
establishes that it is the 2nd accused who caused number of injuries on the
deceased which proved fatal. In this view of the matter, according to the High
Court, the prosecution has clearly established the involvement of the 2nd
accused with the overt act attributed against him vis-a-vis the deceased.
According to the High
Court, the Trial Court seriously erred in acquitting the appellant on the basis
of overwhelming evidence on record. According to the High Court, the appellant
had exceeded his right of private defence, therefore the appellant is liable to
be convicted for an offence under section 304 Part I IPC for exceeding the
right of private defence. The High Court in this case while setting aside the
Trial Court judgment convicted the appellant under section 12 304 Part I IPC
and sentenced him to seven years of rigorous imprisonment.
have heard learned counsel for the parties at length and perused the judgments
and depositions on record. The deceased had received 20 incised injuries caused
on various parts of the body in general and on vital parts of the body in
particular. The deceased was killed mercilessly by inflicting twenty incised
injuries and mostly on the vital parts of the body.
if we accept the version of the High Court that the accused had the right of
private defence, in the facts and circumstances of the case, but he had
exceeded his right so he was convicted under section 304 Part I IPC.
examination of the injuries on the accused it is clearly borne out that those
injuries are very minor and superficial in nature whereas twenty incised
injuries inflicted on the deceased were of very serious nature and character.
The Sessions Court
has gravely erred in acquitting the accused on the face of the testimony of the
witnesses in the case. We have to examine the evidence in proper perspective -
13 why should ordinarily PW1, mother of the deceased would falsely implicate
the accused and let off the real assailant? Similarly, why PW2, nephew of the
deceased would save the real assailant and falsely name the accused?. The High
Court in the impugned judgment while reversing the judgment of the Sessions
Court convicted the accused under section 304 Part I IPC.
have not examined whether in the facts and circumstances, the High Court was
justified in converting the sentence from section 302 IPC to section 304 Part I
IPC because there is no appeal by the State.
appellant must be convicted at least under section 304 Part I IPC. No
interference is called for. The appeal being devoid of any merit is accordingly
(Harjit Singh Bedi)