Crl.A. No. 889 of 2004 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 889 OF 2004

NACHIMUTHU & ANR. ..... APPELLANTS

VERSUS

STATE OF TAMIL NADU ..... RESPONDENT

O R D E R

1. We have heard learned counsel for the parties.

2. The  present  is  a  case  of  fratricide,  the  

deceased was the brother of accused  No. 1.  Accused  

No.  2  is  the  wife  of  Accused  No.  1.   As  per  the  

prosecution story a dispute had arisen between the two  

brothers and their families on account of their land  

holdings with the result that they were not on talking  

terms. On the 7th October, 1989, accused No. 1 armed  

with the handle of a spade and accused No. 2 with a  

stick caused injuries to the deceased after they had  

intercepted  him  in  the  fields  and  after  they  had  

shouted out that they would teach him a lesson for  

wanting his share in the property.    This incident was  

seen by P.W. 1, the daughter of the deceased.  She ran  

away from the spot and while doing so, she came across

Crl.A. No. 889 of 2004 2

P.W.  2,  her  mother  and  her  younger  sister,  running  

towards  the  scene  of  occurrence  as  they  had  been  

attracted by the noise that had come about.  At that  

stage, both P.W. 1 and P.W. 2 saw the accused again  

beating the deceased which led to his immediate death.  

The accused were ultimately arrested and were charged  

for  an  offence  punishable  under  Section  302  of  the  

Indian Penal Code.  The trial court relying on the  

evidence of P.Ws. 1 and 2, the primary witnesses, as  

also  going  through  the  nature  and  extent  of  the  

injuries  caused,  convicted  the  accused  under  the  

aforesaid  Section  and  sentenced  them  to  life  

imprisonment.   

3. An  appeal  was  thereafter  taken  to  the  High  

Court.  The High Court has modified the conviction to  

an extent observing that as it was difficult to fix the  

fatal injury on either of the two accused both the  

accused were liable to be convicted under Section 302  

read  with Section  34 of  the IPC.   A  Special leave  

Petition was filed at the instance of the two accused  

before this Court wherein leave was granted on the 16th  

August, 2004.

4. We  have  heard  Mr.  Ratnakar  Dash,  the  learned  

senior  counsel  for  the  appellants  and  Mr.  S.  

Thananjayan, the learned counsel for the respondent-

Crl.A. No. 889 of 2004 3

State of Tamil Nadu.  We find that the evidence of the  

two witnesses P.W. 1, the daughter, and P.W. 2 the wife  

of the deceased, cannot be faulted.  The eye witness  

account is also corroborated by the medical evidence  

and the report of the Serologist which reveals that the  

blood found on the handle of the spade was human blood  

of blood group 'O' which was the blood group of the  

deceased.

5. Faced with this situation, Mr. Dash has argued  

that  the  case  would  fall  within  the  definition  of  

murder but fell within the ambit of Section 304 Part I  

or Part II of the IPC and that in any case it was only  

accused No. 1 who had caused the injuries on the person  

of the deceased.  He has pointed out that in the facts  

of the case Section 34 was not applicable insofar as  

accused No. 2 was concerned.  We have examined these  

arguments very carefully but find them to be wholly  

without substance.  The injuries on the deceased are  

reproduced below:

   “External: 1.  Abrasion with contrusion present on the left  

index and middle fingers. 2. Bleeding right ear present. 3. Both upper forearms fracture present. 4. A lacerated injury 1X1X5 cm. Present over the  

upper 2/3 and lower 1/3 of the right leg.  Abrasion on the right knee present.

5. A lacerated injury present over the left leg  at the level of upper 2/3 and 1/3 measuring  1x1cm. Bone depth.

6. Abrasion present on the both right and left

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foot. 7. Abrasion present on the left elbow joint.  

Internal 1. On opening of the skull fracture present on  

the right temporal lobe of the skull. 2. A  lacerated  injury  present  on  the  right  

temporal lobe of the brain. 3. 100ml.  Of  blood  present  in  the  cranial  

cavity. 4. On opening of the thorax No. 1 abdomen, no  

evidence of injury. 5. On  opening  of  the  right  forearm,  fracture  

present in the radius and ulna bone at the  level of upper 3/2 and lower 1/3.

6. On  opening  of  the  left  forearm,  fracture  present  on  the  both  radius  and  ulna  bone  present.

7. On opening of the both left, fracture present  on the both tibiae and fibula bone at the  level of upper 1/3 and lower 2/3.

8. Fracture present on the left index and middle  fingers.”

6. It is obvious that the fracture on the right  

temporal lobe of the skull and the lacerated injury on  

the right lobe of the brain are to be co-related to  

each other.  Likewise 100ml  of blood was found in the  

cranial cavity  indicating the severity and intensity  

of the attack.   We also see that there are several  

fractures on the dead body.  It is also clear  that the  

incident had happened in two instalments, and two sets  

of  beatings  had  been   administered  to  the  deceased  

prior to his death.  To submit, therefore, that the  

case would fall under Section 304(I) or 304(II) of the  

IPC is not acceptable.

Crl.A. No. 889 of 2004 5

7. Likewise, we find that accused No. 2 was equally  

involved with accused No. 1, her husband.  It is quite  

evident that she had been armed with a stick and she  

too had used it on the person of the deceased with  

telling effect.  The High Court has observed that it  

was difficult to decipher as to who had caused injury  

No. 1 which was the fatal injury and for that reason  

modified  the  conviction  from  Section  302  IPC  

simplicitor to Section 302 read with Section 34 IPC  

thereof.  It is true that there is no charge under  

Section 302 read with Section 34 but to our mind no  

prejudice can be claimed by the two accused on this  

account as they were fully aware of the circumstances  

that  were  present  against them.   For  the   reasons

recorded above, we find no merit in the appeal. Dismissed.  

8. The accused are on bail.  Their bail bonds are  

cancelled.  They shall be taken into custody forthwith.

...... ..................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI JANUARY 13, 2011.