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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.     1857     of     2009      

Selvam                       …… Appellant

Versus

The State of Tamil Nadu rep. by Inspector of Police                                        ….. Respondent

                 WITH

CRIMINAL     APPEAL     Nos.       1667-1668       of     2012      (Arising out of SLP (Crl.) Nos.575-576 of 2010)

Senthil & Anr.                      …… Appellants

Versus

The State rep. by Inspector of Police              ….. Respondent

J     U     D     G     M     E     N     T   

A.     K.     PATNAIK,     J.   

Leave granted in S.L.P. (Crl.) Nos. 575-576 of 2010.

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2. These Criminal Appeals are against the judgment  

dated 12.12.2008 of the Madras High Court, Madurai  

Bench, in Criminal Appeal Nos.200-201 of 2008.

3. The facts very briefly are that on 16.11.2006 at 21:00  

Hrs. a First Information Report (for short ‘FIR’) was  

lodged in Ganesh Nagar Police Station pursuant to a  

statement of Meyyappan recorded by the Sub-

Inspector of Police. In this FIR, it is stated thus:  

Mayyappan lived at the Thethampatti,  

Thiruvarangulam, alongwith his family and that there  

was a dispute pending between his family and the  

family of Arangan over land.  On 15.11.2006 at 11.00  

a.m. Mariappan, who belongs to the family of Arangan,  

died and the family of Arangan wanted to take the  

burial procession through house street of Meyyappan  

and his family members but Meyyappan’s younger  

brother Chinnadurai and his father Rengaiah appealed  

to the important persons of the village saying that  

there was a separate public pathway for taking the  

dead body to the cremation ground and the village  

head and other villagers accordingly requested the  

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members of the family of Arangan to carry the dead  

body of Mariappan through that public pathway.  On  

16.11.2006 at about 15:00 Hrs. Arangan and his  

brothers, Meyyappan, Murugan, Subbaiah,  

Chidambaram, Senthil, Selvam and others, armed with  

aruvals and sticks came to the family house of  

Meyyappan and asked his family members to come out  

and thereafter Arangan and Senthil delivered a cut on  

Chinnadurai and Selvam and others assaulted them  

with sticks and Chinnadurai was first taken to the  

government hospital and thereafter to the Thanjavur  

Medical College Hospital for treatment.  

4. On the basis of this statement of Meyyappan, Ganesh  

Nagar Police Station Crime No. 795/06 under Sections  

147, 148, 323, 324 and 307 of the Indian Penal Code,  

1860 (for short ‘the IPC’) was registered.  Chinnadurai  

died at the hospital on 25.11.2006.  Investigation was  

conducted and a charge-sheet was filed.  Charges were  

framed against Arangan (accused no.1) under Sections  

148 and 302 of the IPC, against Meyyappan (accused  

no.2) under Sections 148 and 307 of the IPC,  against  

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Subbaiah (accused no.3) under Sections 147 and 307  

of the IPC, against Chidambaram (accused no.4) under  

Sections 148 and 326 of the IPC, against Murugan  

(accused no.5) under Sections 148 and 326 of the IPC,  

against Senthil (accused no.6) under Sections 148 and  

302 read with Section 34 of the IPC, against Selvam  

(accused no.7) under Section 147, 302 read with  

Section 34 and Section 325 of the IPC, against Thilak  

(accused no.8) under Sections 147 and 325 of the IPC  

and against Marthandam (accused no.9) under  

Sections 147 and 302 read with Section 34 of the IPC.  

The Trial Court convicted accused no.1 under Section  

302 of the IPC and sentenced him to undergo life  

imprisonment and to pay a fine of Rs.3000/- and in  

default, to further undergo rigorous imprisonment for  

a period of six months.  The Trial Court also convicted  

accused nos. 6 and 7 under Section 302 read with  

Section 34 of the IPC and sentenced them to undergo  

life imprisonment and to pay a fine of Rs.3000/- and  

in default, to further undergo rigorous imprisonment  

for a period of six months.  The Trial Court convicted  

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the accused no.4 under Section 324 of the IPC and  

sentenced him to undergo rigorous imprisonment for a  

period of three months and to pay a fine of Rs.1000/-  

and in default, to further undergo rigorous  

imprisonment for a period of two months.  Accused  

nos. 1, 4 and 6 filed Criminal Appeal no. 200 of 2008  

and accused no.7 filed Criminal Appeal no. 201 of  

2008 before the High Court against their conviction  

and sentences, but by the impugned judgment the  

High Court sustained the conviction and the  

sentences.  Accused no.7 has filed Criminal Appeal no.  

1857 of 2009 and accused nos. 1 and 6 have filed the  

other Criminal Appeal arising out of SLP (Crl.) Nos.  

575-576 of 2010.

5. Mr. S.B. Sanyal, learned senior counsel appearing for  

the accused No.7, submitted that in the FIR it is  

alleged by the informant that the accused No.7 had  

assaulted persons other than Chinnadurai with stick.  

He submitted that the informant was examined before  

the Trial Court as PW-1 and he has given an entirely  

different version in his evidence and has said that the  

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accused no.7 assaulted on the left side of the head of  

Chinnadurai.  He further submitted that the father of  

Chinnadurai, namely, Rengaiah, has also been  

examined before the Trial Court as PW-2 and he has  

deposed that the accused no.7 assaulted on the left  

side of the head of Chinnadurai with stick.  He  

submitted that PW-1 and PW-2 have improved upon  

the role of the accused No.7 in the assault on the  

deceased after coming to know of the opinion of the  

doctor in the post mortem report about the injuries on  

the deceased.  He argued that where there is such  

variance between the version in the FIR and the  

version of PW-1 and PW-2 before the Court with regard  

to the exact role of the accused no.7 in the assault on  

the deceased, the accused No.7 cannot be convicted  

under Section 302 read with Section 34 of the IPC.  He  

cited Anil Prakash Shukla v. Arvind Shukla [(2007) 9  

SCC 513] in which this Court has taken a view that  

where the witnesses have improved their version given  

in the FIR after coming to know of the medical report,  

benefit of doubt must be given to the accused.  He also  

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relied on Kalyan and Others v. State of U.P. [(2001) 9  

SCC 632] where benefit of doubt has been given to the  

accused on account of variance between the FIR and  

the deposition made in the court.  

6. Mr. Sanyal next submitted that PW-11, who conducted  

the post mortem on the dead body of the deceased, is  

clear in his opinion that the injury on the head of the  

deceased was a ‘contusion’  and medical dictionary by  

P.H. Collin describes ‘contusion’  as a bruise, a dark  

painful area on the skin, where blood has escaped into  

the tissues, but not through the skin, following a blow.  

He submitted that PW-11 has also stated in her cross-

examination that she did not see any incised injury  

during the examination of the dead body.  He  

submitted that as a matter of fact the deceased died in  

the hospital after several days of the incident.  

According to Mr. Sanyal, this was therefore not a case  

where accused no. 7 could be said to have any intent  

to cause the death of the deceased and therefore he  

was not guilty of the offence of murder under Section  

302 of the IPC.  In support of this submission, he  

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relied on B.N. Kavatakar and Another v. State of  

Karnataka [1994 Supp.(1) SCC 304] in which this  

Court has held after considering the opinion of the  

medical officer and after considering the fact that the  

deceased died after five days of the occurrence that the  

offence would be punishable under Section 326 read  

with Section 34 of the IPC.  He also cited Abani K.  

Debnath and Another v. State of Tripura [(2005) 13 SCC  

422] where the deceased succumbed to injuries after  

lapse of seven days of the occurrence and this Court  

has converted the sentence as against accused no.1  

from one under Section 302, IPC to one under Section  

304 Part-II, IPC, and sentenced him to suffer rigorous  

imprisonment for five years.   

7. Mr. Sanyal finally submitted that the High Court has  

in the impugned judgment treated the case of the accused  

no.7 in parity with accused nos. 1 and 6, but the facts of  

the case clearly establish that the role of the accused no.7  

was different from that of accused nos. 1 and 6 in the  

occurrence and the accused no.7 should have been awarded  

lesser punishment than accused Nos. 1 and 6.

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8.  Mr. K. K. Mani, learned counsel appearing for the  

accused nos. 1 and 6 in Criminal Appeal arising out of  

S.L.P. (Crl.) Nos.575-576 of 2010, adopted the arguments of  

Mr. Sanyal.  He further submitted that both PW-1 and PW-2  

had deposed that accused no.1 and accused no.6 had given  

cut injuries on the deceased by aruval, but the medical  

evidence of PW-11 is clear that a blunt weapon had been  

used in assaulting the deceased.  He submitted that this is,  

therefore, a case where the ocular evidence cannot be  

believed because of its inconsistency with the medical  

evidence.   

9. Mr. B. Balaji, learned counsel appearing for the State, in  

reply, submitted that PW-1 and PW-2 are injured  

eyewitnesses and cannot be disbelieved by the Court.  He  

submitted that the contention of learned counsel for the  

appellants that the version given by PW-1 in the FIR and  

the version given before the Court are at variance is  

misconceived. He argued that in the FIR, PW-1 has stated  

that accused no.7 and others assaulted ‘us’  with stick  

and by the word ‘us’, PW-1 meant not only himself but  

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also the deceased.   He submitted that the evidence of  

PW-1 and  PW-2 clearly establish that accused nos.1, 6  

and 7 delivered the injuries on the head of the deceased,  

on account of which he fell unconscious and ultimately  

died.  He submitted that the presence of accused nos.1, 6  

and 7 at the spot and their role in assaulting the  

deceased are not in doubt and they are all liable for the  

offence under Section 302 read with Section 34, IPC.  He  

finally submitted that this is not a fit case in which this  

Court should interfere with the concurrent findings of  

facts of the Trial Court and the High Court.   

10.  We have considered the submissions of learned  

counsel for the parties and we find that the difference  

in the version in the FIR and the version in the  

evidence of PW-1 and PW-2 is not very material so as  

to create a reasonable doubt with regard to the  

participation of accused nos.1, 6 and 7 in the assault  

on the deceased.  In the FIR, it has been alleged that  

the accused nos.1 and 6 delivered a cut on the  

deceased.  In his evidence, PW-1 has stated that  

accused no.1 had delivered a cut on the centre of the  

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head of the deceased and accused no.6 delivered a cut  

on the head of the deceased.  Similarly, in his evidence  

PW-2 has stated that accused no.1 delivered a cut on  

the centre of the head of the deceased and accused  

no.6 snatched the aruval from accused no.1 and  

delivered a cut on the centre of the head of the  

deceased.  The FIR and the evidence of PW-1 and PW-2  

are, thus, clear that accused no.1 and accused no.6  

delivered a cut injuries on the deceased.  Regarding  

the participation of the accused no.7 in the assault, in  

the FIR it is alleged that accused no.7 assaulted on ‘us’  

with a stick.   The evidence of PW-1 and PW-2 is that  

accused no.7 assaulted on the left side of the head of  

the deceased with a stick.  The word ‘us’  in the FIR  

cannot mean to exclude the deceased inasmuch as the  

deceased was the brother of PW-1 and was the son of  

PW-2.  There is evidence to show that besides the  

deceased, PW-1 and PW-2 were also injured and were  

treated at the hospital.  Hence, accused no.7 has used  

the stick not just against PW-1 and PW-2, but also  

against the deceased.  We, therefore, do not find any  

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material difference between the version in FIR and in  

the evidence of PW-1 and PW-2 on the role of accused  

No.7 in the assault.  

11.  The evidence of PW-1 and PW-2, in our opinion,  

establishes beyond reasonable doubt that accused  

no.1 used the aruval to strike at the head of the  

deceased.  From the evidence of PW-1 and PW-2, it is  

also established beyond reasonable doubt that accused  

no.6 snatched the aruval from accused no.1 and  

struck on the head of the deceased.  The evidence of  

PW-1 and PW-2 also establish that accused no.7  

struck the head of the deceased by a stick.  The result  

of all these acts of accused nos.1, 6 and 7 is the death  

of the deceased.  Section 34, IPC, states that when a  

criminal act is done by several persons in furtherance  

of the common intention of all, each of such persons is  

liable for that act in the same manner as if it were  

done by him alone.  Section 33, IPC, states that the  

word “act”  denotes as well a series of acts as a single  

act.  Thus, even though accused nos.1, 6 and 7 may  

have committed different acts, they have cumulatively  

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committed the criminal act which has resulted in the  

death of the deceased and are liable for the criminal  

act by virtue of Section 34, IPC.  We, therefore, do not  

find any merit in the submission that accused No.7  

was not liable for the same punishment as accused  

Nos. 1 and 6.

12.   The next question which we have to decide is whether  

the criminal act committed by accused nos.1, 6 and 7  

amounts to murder under Section 300, IPC, or some  

other offence.  The medical evidence of PW-11 is clear  

that all the injuries of the deceased were most  

probably as a result of an assault by a blunt weapon  

and in the opinion of PW-11, the deceased appears to  

have died due to head injuries.   PW-11 has also  

admitted in her cross-examination that she did not see  

any incised injuries during the post mortem  

examination and had a sickle been used it would have  

caused incised wounds.  Thus, it appears that accused  

no.1 and accused no.6 had used not the sharp side  

but the blunt side of the aruval and accused no.7 had  

used the stick in the assault on the deceased.  The fact  

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that the blunt side of the aruval and a stick was used  

in the assault on the deceased would go to show that  

accused nos.1, 6 and 7 did not have any intention to  

cause the death of the deceased.  Nonetheless, the  

injuries caused by accused nos.1, 6 and 7 were all on  

the head of the deceased, including his parietal and  

temporal regions.  Accused nos.1, 6 and 7, thus, had  

the intention of causing bodily injury as is likely to  

cause death and were liable for punishment for  

culpable homicide not amounting to murder under  

Section 304 Part I, IPC.   

13.    On similar facts, where injuries were caused by a  

blunt weapon, this Court in State of Punjab v. Tejinder  

Singh & Anr. [1995 Supp (3) SCC 515] held in para 8:

“8. In view of our above findings we have now to  ascertain whether for their such acts A-1 and A-2  are liable to be convicted under Section 302 read  with Section 34 IPC. It appears from the evidence  of PW 4 and PW 5 that the deceased was  assaulted both with the sharp edge and blunt  edge of the gandasas and the nature of injuries  also so indicates. If really the appellants had  intended to commit murder, they would not have  certainly used the blunt edge when the task  could have been expedited and assured with the  sharp edge. Then again we find that except one  

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injury on the head, all other injuries were on non- vital parts of the body. Post-mortem report  further shows that even the injury on the head  was only muscle-deep. Taking these facts into  consideration we are of the opinion that the  offence committed by the appellants is one under  Section 304 (Part I) IPC and not under Section  302 IPC.”

14. In this case, the assault on the deceased was on  

16.11.2006 and the deceased died in the hospital after  

nine days on 25.11.2006.  In Abani K. Debnath and  

Another v. State of Tripura (supra) this Court, after  

considering the nature of the injuries as well as the  

fact that the deceased succumbed to the injury after a  

lapse of seven days, took the view that the conviction  

of the accused in that case cannot fall under Section  

302, IPC.  

15. After considering the evidence of PW-1 and PW-2, the  

medical evidence of PW-1 and the fact that the  

deceased died after nine days of the assault, we are of  

the considered opinion that the Trial Court and the  

High Court were not right in convicting the appellants  

under Section 302, IPC, and the appellants should  

have been convicted instead under Section 304 Part-I  

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read with Section 34, IPC.  We accordingly allow these  

appeals in part, modify only the conviction and  

sentence on the appellants under Section 302, IPC,  

and instead order that the appellants (namely, accused  

nos.1, 6 and 7) are convicted under Section 304 Part-I  

read with Section 34, IPC, and sentenced to rigorous  

imprisonment for seven years.  The fine amount  

imposed by the Trial Court and affirmed by the High  

Court is affirmed.                  

.……………………….J.                                                            (A. K. Patnaik)

………………………..J.                                                            (Swatanter Kumar) New Delhi, October 16, 2012.    

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