Supreme Court of India
GURU @ GURUBARAN & ORS. versus STATE REP. BY INSP. OF POLICE on 27 September 2019
SUPREME COURT REPORTS
[2019] 12 S.C.R.
GURU @ GURUBARAN & ORS.
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v.
STATE REP. BY INSP. OF POLICE
(Criminal Appeal No.1893 of 2010)
B
SEPTEMBER 27, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Penal Code, 1860 – ss. 302, 323 and 324 – Murder – Therewas some dispute between the parties – Prosecution case was thatCpanchayat was called to settle the dispute – Since, Pradhan of thePanchayat was indisposed, the Panchayat was not held – Thereafter,PW-2, his sister victim-deceased, his wife PW-7, PW-13 and son ofPW-2 were standing outside the house of PW-2 and talking amongthemselves – While they were standing, all accused persons (A-1,A-2, A-3, A-5 and A-9) came armed with sickles, iron pipe andDwooden staffs and attacked victim – Victim died – High Courtconvicted A-1 & A-2 u/s. 302 IPC, A-3 u/s. 324 IPC and A-5 & A-9u/s. 323 IPC – Accused contended that there was a free fight onboth sides and that there was no evidence to show that there wasprior meeting of minds and further urged that offence was not ofEmurder but culpable homicide not amounting to murder – Held: Theversion of all the eye-witnesses against the accused persons wassimilar – Medical evidence also fully corroborated the version ofall the eye-witnesses – Insofar benefit of Exception 4 to s.300 isconcerned, evidence indicated that all accused persons came armed– The fact they were armed indicated that the occurrence did notFtake place in the heat of passion, upon a sudden quarrel – A-1 hadhit the deceased on head with a sickle with such a great force causingfracture of the skull, bringing the case within clause ‘Fourthly’ ofs.300 IPC – Therefore, there is no reason to alter the sentence andconviction of A-1 – However, A-2 had given blow with an iron pipeon back of the neck of the deceased, which only caused abrasionsG– Therefore, his conviction u/s.302 altered to s.324 IPC – Insofaras conviction of A-3, A-5 and A-9 is concerned, there is no reasonto interfere with the judgment of the High Court.
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Disposing of the appeals, the Court
HELD: 1. The doctor states that the injuries caused thedeath of the victim. The first injury is a lacerated wound and it isurged by the accused persons, that this injury could not havebeen caused by sickle (Koduval), which is a sharp-edged weapon.A sickle is an instrument mainly meant for cutting grass and crops.The inner side is sharp but the outer side is blunt. While using itas an instrument of agriculture only, the sharp edge is used butwhile using it as a weapon of offence, more often than not, it willbe the outer side which will be used to hit the victim. The doctorhas opined that the injury could have been caused by a sicklewhich is MO-1 and, therefore, the medical evidence fullycorroborates the version of all the eye-witnesses. [Para 5][1068-G-H; 1069-A]
2. The accused cannot take benefit of Exception 4 to s.300IPC. It has come in evidence that all the accused persons camearmed. Two were armed with sickles, one with an iron pipe andthe other with wooden staffs. Even if it is assumed that they maynot have come with the intention of killing, the fact that theywere armed, clearly indicates that the occurrence did not takeplace in the heat of passion, upon a sudden quarrel. As pointedearlier, both sides were coming to attend a Panchayat to settle adispute. Where was the need to carry arms if the intention wasonly to settle a dispute? Even otherwise, Exception 4 is notapplicable because the manner in which the blow was given righton the middle of the head, brings this case squarely within clause“Fourthly” of Section 300 IPC. [Para 7] [1069-D-E]
3. A-1 should have known that the act which he isperforming, of hitting the deceased on the head with a sicklewith such great force causing fracture of the skull, is so dangerousthat it would have imminently caused death. Therefore, there isno reason to alter the sentence or conviction of A-1.[Para 8] [1070-A]
4. However, as far as A-2 is concerned, since the High Courthas held that neither Section 34 nor Section 149 IPC areapplicable, each accused will only be responsible for his own actsand injuries. In this behalf, reference was made to a judgment of A
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Athis Court in the case of Atmaram Zingaraji vs. State ofMaharashtra. There is no appeal by the State. As far as A-2 isconcerned, he is alleged to have given a blow with an iron pipeon the back of the neck of the deceased. This resulted in injurynumbers 2 and 3. They are merely abrasions and could not havecaused death. Therefore, the accused can only be held guilty ofBhaving committed the offence under Section 324 IPC. He hasalready undergone imprisonment for around 11 years and,therefore, his conviction under Section 302 IPC is altered toSection 324 IPC and the sentence is reduced to the period ofincarceration already undergone. As far as A-3, A-5 and A-9 areCconcerned, this Court finds no reason to interfere with thejudgment of the High Court as each has been held guilty for theoffence which they have committed. [Para 9] [1070-B-E]
Atmaram Zingaraji v. State of Maharashtra (1997) 7SCC 41 : [1997] 3 Suppl. SCR 432 – referred to.DCase Law Reference [1997] 3 Suppl. SCR 432 referred to Para 9
CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1893 of 2010
From the Judgment and Order dated 10.02.2009 of the High CourtEof Judicature at Madras in Criminal Appeal No. 615 of 2000S. Nagamuthu, Sr. Adv., B. Balaji, S. Arun Prakash, Satya MitraGarg, Advs. for the Appellants.
Jayanth Muth Raj, Sr. Adv.(AAG), M. Yogesh Kanna, Adv. forthe Respondent.FThe Judgment of the Court was delivered by DEEPAK GUPTA, J.
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1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against thejudgment of the High Court whereby Guru @ Gurubaran (A--1) andGDurai @ Durairajan (A-2) have been convicted under Section 302, IndianPenal Code (IPC) and sentenced to imprisonment for life and to pay afine of Rs.1000/- each with default sentence of 3 months rigorousimprisonment (RI). As far as Vettri @ Vetrivell (A-3) is concerned, hewas convicted under Section 324 IPC on two counts and sentenced toone year RI on each count and fine of Rs.1000/- with default sentenceHof 3 months. Narayanan (A-5) and Srinivasan (A-9) along with other accused were convicted under Section 323 IPC and sentenced to undergosix months RI and pay fine of Rs.1000/- each with default sentence of 3months. All the sentences were to run concurrently.
2. The prosecution case is that Parasuraman (PW-14), son ofdeceased Saroja and Munusamy Pillai (PW-1), was in love with Uma,the younger sister of A-1. They both got married and after the marriage,PW-14 lived in his wife’s house. However, Saroja (deceased) did notapprove of this. Thereafter, PW-14 came back to his house. On03.03.1998, it is alleged that Jayaraman (A-4) assaulted Nagarajan (PW-2), brother of Saroja and brother-in-law of PW-1. To settle the dispute,a Panchayat was called the next day. It is admitted that this Panchayatwas called at the instance of A-1. The Panchayat was to be conductedin the evening. However, since the Pradhan of the Panchayat wasindisposed, the Panchayat could not be held. Thereafter, PW-2, his sisterSaroja (deceased), his wife Rani (PW-7), Murugan (PW-13) and NaveenKumar, son of PW-2 and PW-7 stood outside the house of PW-2 talkingamongst themselves. According to him, PW-13 had come to the villagebecause of the Panchayat. While they were standing there, A-1 camearmed with a sickle (Koduval), A-2 armed with an Iron Pipe, A-3 armedwith a sickle (Koduval) and A-4 to A-9 carrying thick wooden staffs intheir hands. It is alleged that A-1 attacked deceased Saroja with a sickleon the front portion of her head and said that it was only because of herthat the younger sister of A-1 has to live separately from her husband.A-2 gave a blow on the back of the neck of Saroja with an iron pipe.The other accused are alleged to have attacked Saroja with woodenstaffs in their hand. When the family members of Saroja tried to protecther, all the 9 accused surrounded her and, as such, they could not protecther. According to the eye-witnesses, they were also attacked by themembers of the aggressive party. The version of all the eye-witnessesis similar.
3. However, there are some discrepancies with regard to themanner in which the said incident took place. According to PW-1, onthe date of Panchayat, first a verbal altercation took place between thetwo sides and then the attack took place whereas, according to PW-2and some of the other eye-witnesses, the attack took place without anyprovocation. We are of the considered view that for the purpose ofdeciding this appeal, we can even presume that there was some verbalaltercation between the two sides.
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A4. The occurrence is not denied. The main defence is that therewas a free fight on both sides and that there is no evidence to show thatthere is prior meeting of minds. The accused had not been convictedunder Section 34 or Section 149 IPC and, therefore, each individualaccused can only be convicted for the injury attributed to that individual.Therefore, it becomes relevant to refer to the medical evidence of theBautopsy surgeon Dr. Rajamani, Assistant Surgeon (PW-3). The injuriesare as follows:
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“1. An Antemortem red, oblique lacerated wound measuring 6cmx 1cm x 1cm, exposing the bones over the left frontal region ofscalp, 1 cm away from the midline with bleeding and blood clots.On Exploring the wound, echymosis seen behind the scalp overthe frontal, parietal, temporal and back of skull. There is a fractureof frontal bone measuring 5 cm in length, vertical, para sagittallyand 1cm away from midline over the left side, extended to upwardsto fronto parietal junction, and another fracture line which isadjacent to it and slightly oblique from the frontal bone to towardsfronto parietal junction, 4cm x [1/8 ]on and on exposing the skullbones blood clots seen over the membranes of the leftcerebralhemisphere of brain on the frontal, parietal, temporal and occipitalregion, of the brain. Both fractures are involving inner and outertable of the skull.
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2. An abrasions varying size from 3cm to 2[1/2]cm x ¼ cm with ½cm different from each other, oblique, placed over middle 1/3 ofright side neck.
3. An AM abrasion 2[1/2]cm x ¼ cm obliquely placed 1cm awayfrom injury No.2 on right side of neck.
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4. An AM swelling whole of the anterior and lateral side of rightside neck. On exposing the injury No.2, 3, 4 minor blood clotsunder the skin of neck and congestion of sternomastoid muscleand blood clots seen in anterior and lateral side of right side neck.”
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5. The doctor states that these injuries caused the death. Thefirst injury is a lacerated wound and it is urged by Mr. S. Nagamuthu,learned senior counsel, that this injury could not have been caused bysickle (Koduval), which is a sharp-edged weapon. A sickle is aninstrument mainly meant for cutting grass and crops. The inner side is H
sharp but the outer side is blunt. While using it as an instrument ofagriculture only, the sharp edge is used but while using it as a weapon ofoffence, more often than not, it will be the outer side which will be usedto hit the victim. The doctor has opined that the injury could have beencaused by a sickle which is MO-1 and, therefore, the medical evidencefully corroborates the version of all the eye-witnesses.
6. It was next urged that the offence was not of murder but mayamount to culpable homicide not amounting to murder. It has been urgedthat the case would fall within Exception 4 to Section 300 IPC, whichreads as follows:
“Exception 4 – Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passion upona sudden quarrel and without the offender having taken undueadvantage or acted in a cruel or unusual manner.”
7. We are of the view that the accused cannot take benefit of thisException. It has come in evidence that all the accused persons camearmed. Two were armed with sickles, one with an iron pipe and theother with wooden staffs. Even if it is assumed that they may not havecome with the intention of killing, the fact that they were armed, clearlyindicates that the occurrence did not take place in the heat of passion,upon a sudden quarrel. As pointed out above, both sides were coming toattend a Panchayat to settle a dispute. Where was the need to carryarms if the intention was only to settle a dispute? Even otherwise, wefeel that Exception 4 is not applicable because the manner in which theblow was given right on the middle of the head, brings this case squarelywithin clause “Fourthly” of Section 300 IPC, which reads as follows:
Fourthly -If the person committing the act knows that it is soimminently dangerous that it must, in all probability, cause deathor such bodily injury as is likely to cause death, and commits suchact without any excuse for incurring the risk of causing death orsuch injury as aforesaid.”
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A8. A-1 should have known that the act which he is performing, ofhitting the deceased on the head with a sickle with such great forcecausing fracture of the skull, is so dangerous that it would have imminentlycaused death. Therefore, we find no reason to alter the sentence orconviction of Guru @ Gurubaran (A-1).B9. However, as far as Durai @ Durairajan (A-2) is concerned, A
B9. However, as far as Durai @ Durairajan (A-2) is concerned,since the High Court has held that neither Section 34 nor Section 149IPC are applicable, each accused will only be responsible for his ownacts and injuries. In this behalf, reference was made to a judgment ofthis Court in the case of Atmaram Zingaraji vs. State of Maharashtra[1].There is no appeal by the State. As far as A-2 is concerned, he isCalleged to have given a blow with an iron pipe on the back of the neck ofthe deceased. This resulted in injury numbers 2 and 3. They are merelyabrasions and could not have caused death. Therefore, the accused canonly be held guilty of having committed the offence under Section 324IPC. He has already undergone imprisonment for around 11 years and,Dtherefore, his conviction under Section 302 IPC is altered to Section 324IPC and the sentence is reduced to the period of incarceration alreadyundergone. As far as Vettri @ Vetrivell (A-3), Narayanan (A-5) andSrinivasan (A-9) are concerned, we find no reason to interfere with thejudgment of the High Court as each has been held guilty for the offencewhich they have committed.E
10. In view of the above, the appeal of Accused Nos. 1, 3, 5 and9 is dismissed and the appeal of Accused No. 2 is allowed and hisconviction is altered from offence punishable under Section 302 IPC tooffence punishable under Section 324 IPC and the sentence is reducedto the period of incarceration already undergone.F
11. Accused-Appellant Nos.1 & 2 were granted bail vide thisCourt’s order dated 08.01.2018. In view of the above, bail bond ofAppellant No.1 (A-1) is cancelled. He shall be taken into custodyforthwith to serve remaining period of the sentence and bail bond ofAppellant No.2 (A-2) is discharged. Pending application(s), if any, stand(s)Gdisposed of.
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Ankit Gyan
1(1997) 7 SCC 41
Appeals disposed of.