NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.1453 OF 2005

RANJITHAM … APPELLANT

Versus

BASAVARAJ & ORS.        … RESPONDENTS

WITH

CRIMINAL APPEAL NO.1700 OF 2005

STATE BY INSPECTOR OF POLICE, DHARMAPURI POLICE STATION,  TAMIL NADU … APPELLANT

Versus

SWAMIKANNU & ORS. …        RESPONDENTS

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. These two appeals, by special leave, can be disposed of  

by a common judgment as they challenge the judgment and

order dated 14/3/2005 passed by the Madras High Court in  

Criminal  Appeal  No.130  of  1997  filed  by  Swami  Kannu,  

Basavaraj, Kumaran, Kanagaraj and Gnanapazham (original  

accused 1 to 5 respectively) who are hereinafter referred to  

as “A1” to “A5” respectively for convenience.  

2. In  Sessions  Case  No.  151  of  1993,  A1  to  A5  were  

charged for offence punishable under Section 147 of the IPC.  

A2  and  A4  were  charged  for  offence  punishable  under  

Section 148 of the IPC.  A2 to A5 were charged for offence  

punishable under Section 341 of the IPC.  A1 was charged  

for offence punishable under Section 149 read with Section  

341, offence punishable under Section 109 read with section  

324 and offence  punishable  under  Section  109 read with  

Section  302  of  the  IPC.   A4  was  charged  for  offence  

punishable under Section 324 of the IPC.  A2, A3 and A5  

were charged for offence punishable under Section 149 read  

with Section 324 of the IPC.  A2, A3 and A5 were charged  

for offence punishable under Section 323 of the IPC.  A2 was  

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charged for offence punishable under Section 302 of the IPC.  

A3, A4 and A5 were charged for offence punishable under  

Section 149 read with Section 302 of the IPC.  

3. The case of  the prosecution needs to be narrated in  

brief.

4. A2 to A5 are the sons of A1.  PW-1 Pandurangan is the  

younger  brother  of  deceased  Ranganathan,  who  was  a  

former Member of Legislative Assembly.  He was a member  

of ADMK political party.   He used to, inter alia, run a rice  

mill.  A1  to  A5  were  residing  at  Dharmapuri  while  the  

deceased was a resident of Madhikonpalayam Village.  The  

relations  between  the  accused  and  the  deceased  were  

strained.

5. On 11/11/1992 at about 7.30 p.m. PW-1 Pandurangan,  

PW-4 Jabbar  and one Nanjappan were sitting near  a  bus  

stop at Dharmapuri.  The deceased was also present.  On  

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seeing  A2,  the  deceased  asked  PW-1  to  go  and  collect  

donation  for  organizing  a  meeting  at  Dharmapuri  in  

connection with the visit of a Minister.  A2 refused to pay the  

amount  and  made  some  disparaging  remarks  about  the  

deceased. The deceased got annoyed and told him that if he  

is not willing to pay donation he may not pay but he should  

not  make  such  comments.   A2  persisted  in  making  

comments and told the deceased that he will finish him one  

day.   PW-1  intervened  in  the  quarrel.   Thereafter,  the  

deceased  and  PW-1  got  into  a  car  and  went  to  

Madhikonpalayam.  They alighted near the rice mill.  They  

were discussing about the ensuing marriage of PW-1’s son.  

At about 1.15 p.m. PW-1 came out of the rice mill and saw  

A1 to A5 coming from the east.  On seeing PW-1, A2 to A5  

held his hands and A1 instigated others to kill him.  A4 beat  

PW-1 with a cycle chain on his head, back of chest and left  

side of the wrist.  The others beat him with hands.  PW-1  

raised alarm.  The deceased came out of the rice mill and  

intervened. A1 instigated his sons to kill him.  Thereafter A3  

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to A5 held the hands of the deceased and A2 stabbed the  

deceased on the left side of his chest.  The deceased fell  

down and all the accused ran away.  PW-1 to PW-3 and PW-

5 rushed to  the  place  and removed the  deceased  to  the  

Government  Hospital  Dharmapuri  where  he  was  declared  

dead.   PW-1 then went to Dharmapuri  Police Station and  

lodged his FIR (Ex.P-1).  A2 was arrested on 19/11/1992.  

A3  was  arrested  on  20/11/1992.   The  other  accused  

surrendered.   After  completion  of  the  investigation  the  

accused were charged as aforesaid.

6. In  support  of  its  case,  the  prosecution  examined  as  

many as  21  witnesses.    A1  denied  all  the  incriminating  

circumstances and stated that a false case was foisted on  

him.  Version of  A2 as evident from his statement  under  

Section 313 of the Code of Criminal Procedure (for short,  

“the  Code”),  is  important  and  needs  to  be  stated.   He  

admitted that there was a dispute between his family and  

the family of the deceased.  The deceased and A1 belonged  

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to different political parties.  According to him, PW-1 did not  

ask for any donation from A2.  Donation was asked by a  

candidate  from the  political  party  to  which  the  deceased  

belonged and A2 made a remark that the amount, which has  

already been collected, can be utilized for the meeting and  

the deceased should not use such tactics.  On 11/11/1992  

the situation in Madhikonpalayam village was tense.  When  

he was going to his father’s house he learnt that he and his  

family  members  were  going  to  be  beaten  up by  persons  

belonging to the deceased’s political party and that at 9.30  

p.m. they are going to burn tyres and throw them on their  

rice mill.  He, therefore, asked his father and other members  

of  his  family  to  leave  the  house  and  take  shelter  at  a  

different  place.   While  he  was  proceeding  to  Tirupathur  

Road, A3 was attacked by PW-1 with a stone.  A3 ran away  

from the place.  On seeing him, PW-1, PW-3 and two others  

held him and dragged him towards the mill and threatened  

him  that  he  is  going  to  be  tied  and  thrown  into  fire.  

According to A2 in order to escape from their attack and  

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save his life, he took out a penknife, which was in his key  

bunch,  and  stabbed  generally  with  it  without  targeting  

anybody  or  any  part  of  the  body  and,  thereafter,  ran  to  

Madhikonpalayam Police Station and surrendered.  A3 was  

at the Police Station.  A complaint was given to the Police  

Officer  about  the  burning  of  his  rice  mill  but  the  Police  

Officer did not record the said complaint.   He also stated  

that  the  henchmen  of  the  deceased  damaged  their  

properties,  but the police did not  take any action against  

them because they belonged to a particular political party.  

The police acted in a biased manner and implicated all his  

family members in this case.  He denied that A1 instigated  

A4 to beat PW-1 with a cycle chain. He did not handover  

knife (M.O.-1) to the police. A3 filed a written statement and  

took a similar stand.   

7. The trial court held A1 to A5 guilty under Section 147  

of  the  IPC  and  sentenced  each  one  of  them  to  simple  

imprisonment  for  one  year.   A1  was  found  guilty  under  

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Section 302 read with Section 109 of the IPC and sentenced  

to life imprisonment.  A2 was found guilty under Section 148  

of  the  IPC  and  sentenced  to  18  months  simple  

imprisonment.  A2 was found guilty under Section 302 of the  

IPC and sentenced to life imprisonment. A2, A3 and A5 were  

found guilty under Section 341 of the IPC. Each one of them  

was sentenced to 2 weeks simple imprisonment.   A3, A4  

and  A5  were  found  guilty  under  Section  302  read  with  

Section 149 of the IPC and each one of them was sentenced  

to life imprisonment.   A1 was found not guilty of  offence  

punishable under Section 341 read with Section 149 of the  

IPC and Section 324 read with Section 109 of the IPC.  He  

was acquitted of the said charges.  A2, A3 and A5 were held  

not  guilty  of  offences  punishable  under  Section  324 read  

with Section 149 and Section 323 read with Section 34 of  

the IPC. They were acquitted of the said charges. A4 was  

found not guilty of the charge under Section 148 and 324 of  

the  IPC,  he  was  acquitted  of  the  said  charge.   The  

substantive sentences were directed to run concurrently.   

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8. The  High  Court  acquitted  A2  holding  that  A2  had  

stabbed  the  deceased  in  exercise  of  his  right  of  private  

defence.   The  High  Court  further  held  that  since  A2  had  

stabbed  the  deceased  in  exercise  of  his  right  of  private  

defence,  there  was  no  question  of  the  other  accused  

instigating  him  to  stab  the  deceased.   The  High  Court  

acquitted all the other accused.

9. Criminal Appeal No.1700 of 2005 is filed by the State of  

Tamil Nadu and Criminal Appeal No.1453 of 2005 is filed by  

Ranjitham, wife  of  deceased Ranganathan challenging the  

said judgment and order acquitting all the accused.  During  

the pendency of these appeals A1 (Swami Kannu) has died.  

As against him the appeals have abated.  

10. Counsel for the appellants vehemently contended that  

the impugned order is perverse.  Counsel submitted that the  

High Court was wrong in accepting the argument that A2  

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attacked  the  deceased  in  exercise  of  his  right  of  private  

defence.  Counsel submitted that it is the accused who were  

the aggressors and, therefore, plea of private defence could  

not have been raised by them.  Counsel submitted that the  

High Court did not take note of the unassailable findings of  

trial  court.   Counsel  submitted  that  there  is  cogent  and  

adequate  evidence  of  eye-witnesses  which  has  been  

overlooked and, therefore,  it is necessary to set aside the  

impugned judgment and order.

11. Counsel for the accused, on the other hand, submitted  

that substantial part of the prosecution story is disbelieved  

by the trial  court.   This being an appeal  against order of  

acquittal, this Court should be slow in disturbing the order of  

acquittal.   Counsel  submitted that the evidence on record  

clearly establishes the theory of right of private defence and,  

hence,  the  appeals  deserve  to  be  dismissed.   Counsel  

submitted  that,  in  any event,  so  far  as  A2 is  concerned,  

intention to kill the deceased cannot be attributed to him.  

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He could be convicted only under Section 304 Part II of the  

IPC.  

12. We are dealing with an appeal against acquittal.  We  

are mindful of the principles laid down by this Court through  

a long line of judgments which guide a court dealing with an  

appeal against an order of acquittal.  Unless it appears to us  

that  the  impugned  judgment  is  perverse,  we  cannot  

interfere with it.  If the view taken by the court acquitting  

the accused is a reasonably possible view, we cannot disturb  

it because the presumption of innocence of the accused is  

strengthened by the order of  acquittal.   If  two views are  

possible on appreciating the evidence and if the view taken  

by  the  acquitting  court  is  a  reasonably  possible  view  we  

cannot  substitute  it  by  the  other  view  just  because  it  

appears to us to be a possible view.  Keeping these well  

established principles in mind we shall approach this case.  

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13. The  strained  relationship  between  the  family  of  the  

deceased and the complainant’s family, is admitted.  They  

are  related  to  each  other.   It  is  also  apparent  from the  

evidence  on  record  that  the  deceased  belonged  to  ADMK  

political party and the complainant’s family belonged to the  

rival  political  party.   In  fact,  the  incident  in  question  is  

preceded by some discussion about collection of donation for  

the expenses of the proposed meeting of a Minister.

14. That the deceased was stabbed by A2 is admitted.  A2  

has taken up the defence of right of  private defence.  In  

several  decisions,  this  court  has considered the nature of  

this right.  Right of private defence cannot be weighed  in a  

golden scale and even in absence of physical  injury,  in a  

given  case,  such  a  right  may  be  upheld  by  the  court  

provided  there  is  reasonable  apprehension  to  life  or  

reasonable apprehension of a grievous hurt to a person.  It  

is well settled that the onus of proof on the accused as to  

exercise of right of private defence is not as heavy as on the  

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prosecution to prove guilt of the accused and it is sufficient  

for  him  to  prove  the  defence  on  the  touchstone  of  

preponderance of probabilities (See Sat Narain v. State of  

Haryana  1  )  .  In  V Subramani & Anr. v. State of Tamil   

Nadu  2  , this Court examined the nature of this right.  This  

court  held  that  whether  a  person  legitimately  acted  in  

exercise of his right of private defence is a question of fact  

to be determined on the facts and circumstances of  each  

case.  In a given case it is open to the Court to consider  

such a plea even if the accused has not taken it, but the  

surrounding circumstances establish that it was available to  

him.  The burden is on the accused to establish his plea.  

The  burden  is  discharged  by  showing  preponderance  of  

probabilities in favour of that plea.  The injuries received by  

the  accused,  the  imminence  of  threat  to  his  safety,  the  

injuries caused by the accused and whether the accused had  

time to have recourse to public authorities are all relevant  

factors to be considered.

1 (2009) 17 SCC 141 2 (2005) 10 SCC 358

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15. Whether  A2 stabbed the  deceased in  exercise  of  his  

right of private defence will  have to be considered in the  

light of the above principles.  The High Court while holding  

that A2 exercised his right of private defence, accepted A2’s  

explanation that A2 had to stab the deceased because his  

properties were destroyed and henchmen of the deceased  

dragged him with a view to tying him and throwing him into  

the  fire.   The  High  Court  has  also  observed  that  PW-19  

Inspector  Selvaraj  has  admitted  that  during  the  incident,  

rice mill of A2, home of A1 and property of A3 were burnt  

and though he received information about the said incident  

at  3.30  a.m.  on  12/9/1992,  he  did  not  register  the  

complaint.   The  High  Court  also  noted  that  PW-16  Dr.  

Asokan has, after examining A3, stated that he had found  

that  A3 had sustained an injury.   This  injury,  which  was  

caused during the course of the same incident, has not been  

explained by the prosecution.  The High Court,  therefore,  

concluded that A2 had reasonable apprehension that death  

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or grievous hurt will be the consequence of the acts of the  

deceased  and  his  people  and,  therefore,  he  stabbed  the  

deceased in exercise of his right of private defence.  It is not  

possible for us to  concur  with  the  High Court on this  

issue.  

16. PW-1  has  stated  in  his  evidence  that  the  incident  

occurred near their rice mill.  There is no challenge to this  

statement.   PW-19 Selvaraj,  the Investigating Officer  has  

been cross-examined at length but no suggestion is put to  

him that the incident of stabbing did not take place near the  

rice mill of the deceased.  Thus, it is clear that the accused  

had  gone  to  the  rice  mill  of  the  deceased.   It  is  also  

pertinent to note that as per certificate (Exh.13) issued by  

PW-14  Dr.  Ramakrishnan,  PW-1  had  received  simple  

injuries.  

17.  To establish the right of private defence, the accused  

have not laid any evidence.  We have narrated, in detail, the  

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gist  of  A2’s  statement  under  Section  313  of  the  Code.  

Defence of A3 is also on similar lines.  In short, A2’s case is  

that prosecution witnesses were aggressors.  According to  

him the atmosphere in the village was tense and there was a  

threat that the rice mill and properties of the accused would  

be set on fire by throwing burning tyres on them and, in  

fact,  the properties of the accused were set on fire.  The  

police adopted a partisan approach.  They did not register  

the complaint.  It is further stated by A2 that while he was  

approaching Tirupathur  Road,  A3 received a  stone injury.  

He  ran  away.   On  seeing  A2,  PW-1,  PW-3  and  others  

dragged him towards the mill and threatened him that he is  

going to be tied and thrown into fire and, therefore, in order  

to  escape  from  the  attack  he  stabbed  with  a  penknife  

without targeting anybody. But the evidence on record does  

not probabalise the defence version that the burning of the  

properties of the accused was done before A2 stabbed the  

deceased.   PW-19  Inspector  Selvaraj  has  stated  that  he  

came to know at 3.30 a.m. on 12/11/1992 that the rice mill  

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and he properties of the accused were burnt.  It is pertinent  

to  note  that  as  per  FIR  (Annexure  P-1)  recorded  on  

12/11/1992,  the  incident  took  place  at  10.15  p.m.  on  

11/11/1992.  It is not clear as to when exactly the burning  

of  properties  of  the  accused  took  place.   It  is  possible,  

therefore,  that  the  said  incident  was  a  reaction  to  the  

murder of Ranganathan, the deceased.  There is, however,  

some substance in the contention of counsel for the accused  

that the police did not promptly register the complaint of the  

accused that their properties were burnt.  This is supported  

by  the  evidence  of  PW-18  S.I.  Thangaraj  and  PW-19  

Inspector Selvaraj. We record our dissatisfaction about this  

inaction  of  the  police.    But,  this  does  not  lead  us  to  

conclude that there was imminent threat to the properties of  

the accused when the stabbing incident took place.

18. It is true that A3 received injury during the course of  

this incident.  But, according to PW-16 Dr. Asokan, it was a  

simple injury.  Its non-explanation by the prosecution, in the  

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facts of this case, does not have any adverse impact on the  

prosecution case.  The fact that the accused had gone to the  

rice mill of the deceased is a circumstance which needs to be  

taken  into  account  while  considering  the  plea  of  right  of  

private defence and it makes an irreparable dent in the said  

plea.   The  High  Court  was,  therefore,  clearly  in  error  in  

drawing  an  inference  that  A2  stabbed  the  deceased  in  

exercise of his right of private defence.  It is not possible for  

us to concur  with this  finding of  the High Court.   In  our  

opinion, to this extent, the High Court’s finding is perverse  

and needs to be set aside.

19. What needs to be decided now is what offence has A2  

committed.   A2  has  inflicted  one  stab  wound  on  the  

deceased with a penknife after an altercation between the  

two sides.  The blow landed on the chest, a vital part of the  

body of the deceased.  The question is whether A2 is guilty  

of murder or culpable homicide not amounting to murder.   

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20. In  Hari Ram vs.  State of  Haryana  3  ,  there was an  

altercation between the appellant and the deceased.  The  

appellant had remarked that the deceased must be beaten  

to make him behave.  He thereafter ran inside the house,  

brought  out  a  jelly  and  thrust  it  into  the  chest  of  the  

deceased.   This  Court  observed  that  in  the  heat  of  

altercation between the deceased on the one hand, and the  

appellant  and  his  comrades  on  the  other,  the  appellant  

seized a jelly and thrust it into the chest of the deceased.  

This was preceded by his remark that the deceased must be  

beaten to make him behave.  Therefore, it does not appear  

that  there  was  any  intention  to  kill  the  deceased.   This  

Court,  therefore,  set aside the conviction of  the appellant  

under  Section  302  of  the  IPC  and  instead  convicted  him  

under Section 304 Part II of the IPC and sentenced him to  

suffer rigorous imprisonment for five years.  

3 (1983) 1 SCC 193

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21. In  Jagtar  Singh vs.  State  of  Punjab  4  ,  in  a  trivial  

quarrel  the  appellant  wielded  a  weapon  like  a  knife  and  

landed a blow on the chest  of  the deceased.   This  Court  

observed that the quarrel had taken place on the spur of the  

moment.  There was exchange of abuses.  At that time, the  

appellant gave a blow with a knife which landed on the chest  

of the deceased and therefore, it was permissible to draw an  

inference  that  the  appellant  could  be  imputed  with  a  

knowledge that he was likely to cause an injury which was  

likely to cause death but since there was no premeditation,  

no intention could be imputed to him to cause death.   This  

Court, therefore, convicted the appellant under Section 304  

Part  II  of  the IPC instead of  Section 302 of  the IPC and  

sentenced  him  to  suffer  rigorous  imprisonment  for  five  

years.

22. In  Hem Raj v. The State (Delhi Administration)  5  ,  

the appellant and the deceased had suddenly grappled with  

4 1983 (2) SCC 342 5 1990 (Suppl.) SCC 291

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each  other  and  the  entire  occurrence  was  over  within  a  

minute.   During  the  course  of  the  sudden  quarrel,  the  

appellant dealt a single stab which unfortunately landed on  

the chest of the deceased resulting in his death.  This Court  

observed that  as the totality  of  the established facts  and  

circumstances show that the occurrence had happened most  

unexpectedly, in a sudden quarrel and without premeditation  

during the course of which the appellant caused a solitary  

injury to the deceased, he could not be imputed with the  

intention to cause death of the deceased, though knowledge  

that he was likely to cause an injury which is likely to cause  

death could be imputed to him.  This Court, therefore, set  

aside  the  conviction  under  Section  302  of  the  IPC  and  

convicted the appellant under Section 304 Part II of the IPC  

and sentenced him to  undergo  rigorous  imprisonment  for  

seven years.

23. In  V.  Subramani,  there  was  some  dispute  over  

grazing  of  buffaloes.   Thereafter,  there  was  altercation  

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between the accused and the deceased.  The accused dealt  

a single blow with a wooden yoke on the deceased.  Altering  

the conviction from Section 302 of the IPC to Section 304  

Part II of the IPC, this Court clarified that it cannot be laid  

down as a rule of universal application that whenever death  

occurs on account of a single blow, Section 302 of the IPC is  

ruled out.  The fact situation has to be considered in each  

case.  Thus, the part of the body on which the blow was  

dealt, the nature of the injury and the type of the weapon  

used  will  not  always  be  determinative  as  to  whether  an  

accused  is  guilty  of  murder  or  culpable  homicide  not  

amounting to murder. The events which precede the incident  

will  also have a bearing on the issue whether the act  by  

which  death  was  caused  was  done  with  an  intention  of  

causing death or knowledge that it is likely to cause death  

but without intention to cause death.  It is the totality of  

circumstances which will decide the nature of the offence.  

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24. The deceased received a single stab injury.  PW-15 Dr.  

Subramani, who did the postmortem has described the said  

injury as a stab injury seen at the left chest, that is, junction  

of  second  rib  bone  and  chest  bone.   On  internal  

examination, he found that the injury had gone inside the  

left chest through the lungs into the heart.  Undoubtedly,  

the injury was serious and on a vital part of the body, but it  

was caused by a penknife, which was in key bunch of the  

accused.  A  key  bunch  is  carried  by  a  person  in  routine  

course and a penknife is used for odd jobs, which a person  

may be required to do during the course of the day.  It is  

not possible for us to say, in the facts of this case, that A2  

had carried the penknife which was in his key bunch to stab  

the deceased.  The background of this case also needs to be  

kept in mind.  This case appears to have political overtones.  

The accused and the deceased belonged to different political  

parties.   Admittedly,  there  was  enmity  between  the  two  

sides.  There had been an altercation between the deceased  

and PW-1 on the one hand and the accused on the other  

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hand.  PW-1 had, at the instance of the deceased, asked for  

donation  from A2  and  A2  is  stated  to  have  made  some  

disparaging remarks.  The situation in the village was tense.  

The accused had then gone to the rice mill of the deceased.  

There  again,  there  was  an  altercation  between  the  two  

sides.  The circumstances on record clearly indicate that A2  

stabbed the deceased without premeditation,  in  a  sudden  

fight in the heat of passion.  His case falls in Explanation 4  

to Section 300 of the IPC.  A2 knew that the act by which  

the  death  was  caused  was  likely  to  cause  death  but  it  

appears to us that he had no intention to cause death.  In  

the light of the abovementioned judgments of this court, this  

in our opinion, is a fit case where A2-Basavaraj should be  

convicted for the offence of culpable homicide not amounting  

to murder and should be sentenced for five years rigorous  

imprisonment under Section 304 Part II of the IPC. Needless  

to say that he must be given set off for the period already  

undergone by him.  

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25. So far as A1, A3, A4 and A5 are concerned, we are,  

however,  of  the  view  that  the  High  Court  was  right  in  

acquitting them.   PW-1, PW-2 and PW-3 are eye-witnesses.  

PW-1 has stated that A4 had levelled attack on his head,  

back and chest with a cycle chain.   The cycle chain is not  

recovered.   PW-14 Dr.  Ramakrishnan,  who has  examined  

him  has  stated  that  the  injuries  suffered  by  PW-1  were  

simple injuries.  PW-14 Dr. Ramakrishnan has further stated  

that if the injuries suffered by PW-1 were caused by a cycle  

chain, they would have caused imprint and he had not found  

any imprint injuries on PW-1’s body.   So far as PW-2 is  

concerned, he has rightly been disbelieved by the trial court  

because  his  name  is  not  mentioned  in  the  FIR  and  the  

evidence of PW-1 and PW-3 do not establish his presence.  

PW-3 has  given a  version similar  to  that  of  PW-1.   It  is  

pertinent  to  note  that  though  PW-1  has  stated  that  his  

clothes  were  stained  with  blood,  no  such  clothes  were  

recovered.  All this leads us to conclude that the prosecution  

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story narrated by PW-1, PW-2 and PW-3 about the use of  

cycle chain to beat PW-1 has rightly been disbelieved by the  

trial  court.   A4  is,  therefore,  acquitted  of  charge  under  

Section 324 of the IPC.  Since charge against A4 that he had  

attacked PW-1 with cycle chain has failed, the trial court has  

acquitted  A1  of  the  charge  that  he  had  instigated  A4  to  

attack PW-1 with a cycle chain.   Consequently A2, A3 and  

A5 have also been acquitted of offence under Section 324  

read with Section 149 of the IPC in respect of the alleged  

cycle chain attack on PW-1.  It is observed that they had no  

intention to attack PW-1 with a cycle chain.  The evidence on  

record clearly establishes that only A2 had a penknife in his  

key bunch.  The other accused did not have any weapon  

with them.  The trial court has observed that the medical  

evidence does not bear out the story that A2, A3, A5 had  

attacked  PW-1 with  hands.   Eye-witnesses  have  also  not  

stated so.  Therefore, A2, A3 and A5 have been acquitted of  

the charge under Section 323 read with Section 34 of the  

IPC.  The trial court has held that A1 had no intention to  

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wrongfully  confine  PW-1.   He  is,  therefore,  acquitted  of  

charge under Section 341 read with Section 149 of the IPC.  

Having considered the evidence on record in depth, we are  

of the considered opinion that so far as A1, A3, A4 and A5  

are concerned, the substratum of the prosecution story has  

given way.   To hold them guilty for  the stabbing of the  

deceased with the aid of Section 149 or to hold them guilty  

of  murder with the aid of  Section 109 after  setting aside  

their order of acquittal, in our opinion, would not be proper  

because there is  nothing perverse about the High Court’s  

order so far as their acquittal is concerned.  In the result, we  

pass the following order:

26. A2-Basavaraj  is  convicted  for  culpable  homicide  not  

amounting to murder punishable under Section 304, Part II  

of the IPC.  For the said offence, he is sentenced to suffer  

rigorous  imprisonment  for  five  years.   Learned  First  

Additional  District  Judge  and  Chief  Judicial  Magistrate,  

Dharmapuri at Krishnagiri  is directed to ascertain whether  

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A2-Basavaraj  has  undergone  any  sentence.   If  he  has  

already  undergone  five  years’  sentence,  then  it  is  not  

necessary to arrest him.  If he has undergone less than five  

years’ sentence, then he is directed to be taken in custody  

so that he serves rest of the sentence.  If he has undergone  

any sentence, he is directed to be given set off for the same.  

In that case, after completion of the sentence, he is directed  

to be released from custody unless he is  required in any  

other case.  

27. Appeals are partly allowed in the aforestated terms.  

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI NOVEMBER  28, 2011.

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