Baskar @ Kannan Vs.
State of T.Nadu  INSC 98 (20 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1249 OF 2006
Baskar @ Kannan ....Appellant Versus State of Tamil Nadu ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madras High Court
upholding the conviction of the appellant for offence punishable under Section
304 Part II of the Indian Penal Code, 1860 (in short the `IPC'). The accused
persons are described as A-1, A-2 etc. as described by the Trial Court. A-1 by
the impugned judgment of the High Court was held guilty of offence punishable
under Section 302 IPC, while A-2 to A-7 including the present appellant were
found guilty under Section 304 Part II, IPC and each was sentenced to undergo
rigorous imprisonment for five years. A-3 to A-7 were found guilty of offence
under Section 324 IPC and each was sentenced to under RI for two years. A-1 to
A-7 were acquitted of the other charges leveled against them. A-9 and A-10 were
acquitted of the charges levelled against them. Fifteen persons faced trial,
out of whom the trial Court acquitted A-8, A-11 to A-15. By the impugned
judgment, as noted above, the High Court directed acquittal of A-9 and A- 10.
prosecution version as unfolded during trial is as follows:
PW-1 is the native of
Thugli Periyar Nagar. PWs 2, 3, 4 5 and 6 all belonged to the same place. PWs
2, 3 and 4 were originally employed in Ambika Sugar Mills, Kottur. P.Ws. 6 and
7 are also the residents of the said place and all were carrying on
agricultural operations. P.W.8 belonged to kealathur village, where he was
serving as village menial. P.W.9 belonged to Keezhasuriya Moolai village, where
he was serving as village assistant community. A-1 to A-11 and A-13 to A-15
belong to Hindu Padayachi out of whom, A-1 and A-2, though belonged to Hinduism
originally, switched over to Muslim faith. A-12 belonged to another community.
P.Ws. 1 to 4 2 belonged to scheduled caste and they were all employed at the
time of occurrence under one Bhaskar.
On 26.3.2001 at about
5.00 p.m., after finishing work, P.Ws. 1 to 4 came out of the sugar factory and
went to a nearby tea stall for taking tea. At that time, A-1 was plying auto on
the road. On seeing sugarcane on the road, P.Ws. 1 to 4 were able to proceed on
the middle of the road. When A- 1 came nearby he uttered "you add four
more persons and lie on the road".
In reply, P.W.1 told
him "on hearing the horn of the Auto, we gave way and even then, why are
you scolding". There arose a quarrel. In that, A-1 took casurine stick and
tried to attack P.W.1. The other witnesses, namely P.Ws.
2 to 4 held the
accused and stopped him from attacking. This was also witnessed by Thangeraj
(hereinafter referred to as deceased), who was taking tea in a nearby tea
stall. He suddenly intervened and pacified them.
A-1 turned the Auto
and took the same to Keezhasuriyamoolai village.
P.Ws. 1 to 4 went to
Muniyendi Vilas for taking tea. Forty five minutes later, at about 6.00 p.m.,
when the witnesses along with Thangaraju were at the place of occurrence, A-l,
A-2, A-4 to A-6 armed with aruvals, A-3 armed with an iron road and A-7 armed
with a knife and the other accused armed with casurina sticks, came there. The
deceased Thangaraju tried to 3 pacify them. A-1 cut the deceased on the left
side of the neck. Again A-1 cut the deceased below the left ear. A-4 cut him on
the left side of the hip. A2 cut him with aruval on the left shoulder. A-5 cut the
deceased on the waist.
A-7 stabbed him with
the knife on the left armpit and the deceased fell down. A-3 beat PW-1 on the
head with the iron rod. A-4 cut P.W.1 on the left waist. The rest of the
accused surrounded P.W.1 and cut P.W.1 on the right arm, left shoulder, right
thigh and on the back respectively and they fled away from the place of
One Mohan took P.W.1
to the Government Hospital, Kumbakonam, where he was admitted by P.W.10, the
Doctor, at about 7.00 p.m. He issued Ex.P.11, the wound certificate. A
communication was received by P.W.
13, the Head
Constable, attached to Kumbakonam East Police Station at 19.30 hours, who in
turn informed the same to Penthenellur Police Station, within whose
jurisdiction the occurrence has taken place. On receipt of the intimation on
26.3.2001 at 1930 hours, P.W.16, the Sub Inspector of Police proceeded to the
Government Hospital, Kumbakonam at 2030 hours. He recorded the statement of
P.W.1, which was marked as Ex.P.1, on the strength of which a case came to be
registered in Crime No. 72 of 2001 under Sections 147, 148, 324, 307 and 302
IPC and Section 3(2)(v) of SC/ST Act. Ext. P17 the FIR was dispatched to the
4 P.W.19, the Deputy
Superintendent of Police, on receipt of the copy of the FIR on 26.03.2001 at
about 11.00 p.m., proceeded to the place of occurrence and made an inspection
in the presence of two witnesses. He prepared Ex.P.2, the observation mahazar
and Ex.P.35, the rough sketch. He conducted inquest on the dead body of the
deceased in the presence of the witnesses and panchayatdars and prepared
Ex.P.35, the inquest report.
Following the same,
the dead body was sent to the Government Hospital, Thiruvidaimarudur for the
purpose of post-mortem.
The autopsy of the
dead body was conducted. During investigation A-5 gave confessional statement
voluntarily and the same was recorded in the presence of witnesses. Following
the same A-5 produced five aruvals, one iron rod and one knife in the presence
of witnesses. After completion of investigation, charge sheet was filed. Since
the accused persons pleaded innocence trial was held. Prosecution examined 20
witnesses. As noted above, the trial Court found the appellants to be guilty
and awarded punishments.
5 Before the High
Court the primary stand related to acceptability of so called eye witnesses PWs
1 to 4, particular emphasis was made on the evidence of PW-1 to show that there
could not have been a common object to murder the deceased or attempt to murder
PW-1. It was also submitted that it is highly unbelievable that twenty persons
were involved in such an attempt. It was, therefore, highlighted that in a
group clash PWs 1 to 4 could not identify the assailants properly. The High
Court did not find any substance in the stand taken by the appellant. The High
Court did not accept the stand of the prosecution regarding applicability of
Section 302 read with Section 149 IPC. It was held that in respect of the
respective acts committed by each one of them the matter is required to be
considered. From the post mortem certificate it was noticed that the first
injury was caused by A-1 with aruval on the neck and the corresponding injuries
caused the death. At the same time, A-2, A-4, A-5 and A-6 were armed with
aruval, A-7 with knife and A-3 with iron rod and they have attacked the
deceased and contributed corresponding injuries. Therefore, it was held that
A-1 had to be convicted in terms of Section 302 IPC. So far as others are
concerned the acts attracted Section 304 Part II IPC.
support of the appeal, learned counsel for the appellant submitted that the
High Court has erred in discarding the stand of the appellants before it. So
far as the present appellant is concerned there was no specific role attributed
to him. Therefore, his conviction as maintained by the High Court cannot be
counsel for the respondent-State on the other hand submitted that this is a
case where clearly Section 302 IPC read with Section 149 was applicable. He
however conceded that no appeal has been filed by the State questioning the
judgment of the High Court.
is to be noted that PW-1 was not only an eye witness but also an injured
witness. Merely because PWs 1 to 4 were related to the deceased that cannot be
a ground to cast a doubt on the authenticity of their evidence.
What was required was
the closer scrutiny of the evidence. PW-1 has narrated the entire incident in
Ext.P-1 which was lodged immediately while he was admitted in the Government
Hospital for treatment. In the Ext.P-1 PW-1 has categorically stated about the
presence of A-1 to A-7. He had also stated that A-1, A-2, A-3 A-4, A-5, and
A-6, the present appellant were armed with aruvals. He had also given a
detailed description of the overt 7 acts attributable to each one of them, and
as to how they attacked the deceased. His evidence in Court is to similar
effect . The evidence of PWs 2 to 4 is also in similar lines.
High Court noted that after there was a quarrel A-1 went to his village and
brought all the accused persons with him. On the facts of the case the High
Court noted that there was absence of common object. What was to be expected
was an assault. Accordingly, it was held that A-2 to A-7 were guilty of offence
punishable under Section 304 Part II, IPC. We find that the trial Court and the
High Court have rightly found the appellant guilty. The reasoning given by the
High Court to find the appellant guilty does not suffer from any infirmity. The
appeal is without merit and is dismissed accordingly.
(Dr. ARIJIT PASAYAT)
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