[NON-REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.605 OF 2007

SUBRAMANI & ANR.  ...APPELLANTS Versus

STATE REP. BY INSPECTOR OF POLICE …..RESPONDENT

O R D E R

HARJIT SINGH BEDI, J.

1. This appeal arises out of the following facts:

The deceased, Manoharan, was residing with his third wife PW-1 in  

Vendambadi  Kudi  Street.   He was also claiming a share in  the bank  

deposits left in the Cooperative Bank at Namakkal, by his aunt.  This  

claim was opposed by A-1, his father, A-2 and A-3, the husbands of his  

sisters, A-4 son of A-2, A-5 his second wife and A-6 the brother of A-5,  

and there was some amount of friction between them on account of these  

conflicting claims.  At about 1:30 a.m., on the 6th January, 2002, PW-1  

and the deceased were sleeping in their house when A-3, A-5 and A-6  

armed with bamboo sticks, A-4 armed with a reaper and A-1 with a stone  

reached  that  place  and  on  the  exhortation  of  A-1  that  the  deceased  

should be finished off, he was attacked by all the accused.  The deceased

also  attempted  to  

escape but in that effort  he fell  down whereupon A-4 hit  him on the  

skull, A-2 attacked him with a knife and A-1 with a stone on his head.  

PW-1, who had seen the incident, went close to her husband and found  

that he was dead.  She immediately went to the Panchayat President who  

directed  her  to  approach  the  police.   She  accordingly  reached  police  

station, Namakkal at about 6:30 a.m. and lodged a report and a case  

under  Sections  147,  148  and  302  of  the  Indian  Penal  Code  was  

registered.   The  Inspector  of  police,  PW-16,  thereafter  took  up  the  

investigation, visited the site, made the necessary enquiries and sent the  

dead body for its post mortem examination.  The post-mortem, performed  

by PW-9, revealed 24 injuries on the dead body.  The accused were also  

arrested and pursuant to the disclosure statements made by A-1 and A-

2, the weapons used by them were recovered.

On the completion of the investigation, the accused were charged  

for offences punishable under Sections 147, 148, 149 and 302 of the  

Indian Penal Code.  They pleaded not guilty and were brought to trial.

2. The Trial  Court,  relying on the evidence of  PW-1,  the  only eye-

witness, held that A-2, A-3, A-4 and A-6 were guilty of the offence under  

Section 302 read with Section 149 of the Indian Penal Code.  The Court,  

however, acquitted A-1 and A-5 of the charge of murder but found them  

guilty under Sections 147 and 148 of the Indian Penal Code and awarded  

them a sentence under those provisions.   The Trial  Court accordingly  

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sentenced  A-2,  A-3,  

A-4 and A-6 to life imprisonment under Section 302/149 of the Code.

3. An appeal was thereafter filed in the High Court by the accused.  

This appeal was partly allowed and the conclusions drawn were:

“  For  the  foregoing  reasons,  the  conviction  and  sentence imposed upon A-2 to A-6 under Section 147  of I.P.C. are set aside, and they are acquitted of the   said charge.  The conviction and sentence imposed  upon A-2 to A-6 under Section 148 of I.P.C. are set   aside, and they are acquitted of the said charge.  So   far as the conviction and sentence imposed upon A-3  and A-6 under Section 302 read with 149 of I.P.C.  are concerned, the same are set aside, and they are  acquitted of the said charge.  The conviction of A-2  under  Section  302  read  with  149  of  I.P.C.  is  set  aside, and instead he is convicted under Section 302  of  I.P.C.  The  life  sentence  imposed  on  A-2  is   confirmed.  So far as A-4 is concerned, the conviction   and sentence imposed upon him under Section 302  read with 149 of I.P.C. are set aside, and instead,   he  is  convicted  under  Section  324  of  I.P.C.  and  directed to suffer one year’s Rigorous Imprisonment”

A-2 and A-4 are before us by way of special leave.

4. In the course of the hearing, Mr. Vijay Francis, the learned counsel  

for the appellants, has raised pleas similar to those raised in the Courts  

below.  He has first submitted that there was no independent witness to  

the incident and in the light of the fact that there was no light in the  

house where the murder had happened and more particularly as there  

was admittedly grave animosity between the parties, it appeared that the  

PW-1 had not been able to identify the accused and that they had been  

involved on mere suspicion or on account of strained relations.  It has  

also been submitted that these possibilities had been facilitated by the  

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fact  that  though  the  

incident is alleged to have happened at about 1:30 a.m. and the police  

station was only 5 km. away, the FIR had been lodged after a long delay.  

It has also been pleaded that in the facts of the case, it appeared that the  

intention of A-2 was not to cause death but he had the knowledge that  

death  could  be  caused  and  as  such,  he  was  liable  for  an  offence  

punishable under Section 304 (II) of the Indian Penal.

5. The learned counsel for the respondent has, however, supported  

the judgment of the High Court.

6. We see that PW-1 is the wife of the deceased whereas the accused  

are his close relatives.  The facts show the deep set rancour between PW-

1  and  the  deceased  on  the  one  side  and  the  accused  on  the  other.  

Viewed in the light of this family dispute, there is no reason whatsoever  

for PW-1 to have excluded the true assailants.  PW-1 clearly stated as to  

the manner in which the incident had happened and that she had been a  

witness from a very short distance.  Even assuming, therefore, that there  

was some uncertainty as to the presence of a light, that would not in any  

manner detract from the value of PW-1’s evidence, as the parties were  

very well-known to each other and the weapons used were those which  

would bring the victim PW-1 and the assailants in very close proximity to  

each other.   The spontaneity of the recording of the First information  

Report  supports  the  prosecution  story.   PW-1  was  the  widow  of  the  

deceased and his third wife.  She would be the only person at home with  

the deceased at 1.30 a.m. and no other witness could be expected at that  

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hour.   It  is  obvious  

that she was also friendless in the village as the rest of the family had, in  

a manner, ganged up against her and her deceased husband and even  

the  Panchayat  President  had  made  no  attempt  to  help  her  and  had  

advised her  to  approach the  police.   It  is  natural  therefore,  that  she  

would have taken a couple of hours to gather her wits and then to leave  

for the police station 5 km away.   The special report was delivered to the  

Magistrate within a few minutes of 6:30 a.m.  We, therefore, find that  

there was absolutely no delay in the recording of the FIR and that in a  

manner  corroborates  the  prosecution  story.   In  any  case,  the  courts  

below have given the benefit of doubt to most of the accused and, we  

must say, that the High Court has, perhaps, erred in acquitting some of  

them.  In the light of the fact, however, that there is no State appeal  

against acquittal, we are unable to interfere in this matter.   

We  also  find  that  medical  evidence  clearly  supports  a  case  of  

murder against A-2 who was armed with a knife.   The doctor, PW-9, who  

had conducted the post-mortem examination found the following injuries  

on the person of the deceased :

1. Cut injury of 8 x 2 cm x bone deep present over the center of  the skull.

2. A punctured wound 2 cm x 1 cm x bone deep present center of  the skull cm behind the first wound.

3. Cut injury of 3 cm x 2 x 1 cm present behind the right ear.

4. A lacerate wound of 3 cm x 2 x bone deep present below the  first wound.

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5. A  lacerated  wound of 4 cm x 2 cm x bone deep present 6 cm behind the  right ear.

6. A cut injury of 3 x 1 cm x bone deep present over the right  temporal region.

7. A lacerated wound of 4 cm x 2 x 2 cm over the left side of the  nose.

8. An abrasion of 4 cm present over the right frontal palm of right  thumb.

9. Multiple  scratch marks present  behind the right elbow; right  forearm, and back of right hand.

10. A cut injury of 5 x 2 cm x 2 cm present over the right palm of  right thumb.

11. Abrasion of 6 cm present below the right nipple.

12. Abrasion of 5 cm right lower abdomen.

13. Multiple scratch marks present over the left chest, back of the  left elbow, outer aspect of the left wrist, outer aspect of right  thigh, front of right knee joint.

14. Contusion outer aspect of right thigh.

15. Abrasion of 5 cm present over the outer aspect of right leg.

16. Punctured wound of 2 cm x 1 cm x bone deep over the lower  1/3 of right leg of outer aspect.

17. Multiple scratch marks present over the outer aspect of right  foot.

18. Bone deformity present over the lower 1/3 of right leg.

19. An abrasion of 4 cm present over the outer aspect of middle  third of left thigh.

20. Contusion present over the posterior aspect of M/3 of left thigh.

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21. Multiple  scratch  

marks present over the upper third of posterior aspect of left leg  and lateral aspects of left foot.

22. Punctured wound of 3 x 2 x bone deep present below the left  knee joint.

23. A lacerated wound 4 X 2 cm x bone deep present over the upper  6/3rd of left leg.

24. A lacerated wound of 3 cm x 2 cm x bone deep present over the  lower 3 of the left leg.

Extremities. 1.Fracture of right tibia L/3 present 2.Fracture of right tibia upper third.

Skull  1.blood clots present over the right temporal  region, 2.  right temporal bole lacerated.

He also opined that injury Nos. 1 and 2 could have been caused  

with a knife and that these two injuries had caused the death of the  

deceased.  The Trial Court and High Court have both held that as A-2  

had  caused  these  injuries,  he  alone  was  liable  for  the  murder,  more  

particularly as they were both on the head.  We also see that the High  

Court  was,  perhaps,  not  justified  in  acquitting  A-4  of  the  charge  of  

murder and finding him guilty under Section 324 only as the facts show  

that he too had been armed with a lethal weapon and had attacked the  

deceased  while  he  lay  asleep.   To  say,  therefore,  that  there  was  no  

common intention to commit  murder  appears  to be rather  farfetched.  

However,  in  the  light  of  the  fact  that  the  State  Government  has  not  

chosen to file an appeal, we are constrained to accept the situation as it  

is.  The appeal is therefore dismissed.   

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………………………………….J. (HARJIT SINGH BEDI)

………………………………….J. (CHANDRAMAULI KR. PRASAD)

JANUARY 20, 2011, NEW DELHI.

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