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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1132 OF 2009

Thammu Panduranga Rao & Anr.              …       Appellant(s)

versus

State of Andhra Pradesh                                 …   Respondent(s)

J U D G M E N T

M.Y. Eqbal, J.:

The present appeal by special leave is directed against the  

judgment and order dated 9th October, 2007 passed by the High Court  

of Judicature of Andhra Pradesh partly allowing Criminal Appeal No.  

1187 of 2002 filed by the appellants herein (accused Nos. 1 and 2)  by  

inter alia modifying the conviction of accused Nos. 1 and 2 for the  

offence under Section 304 IPC into conviction for the offence under  

Section  304(2)  IPC  and  reducing  the  sentence  of  rigorous  

imprisonment of 10 years to three years in respect of both the accused  

and  the  sentence  of  rigorous  imprisonment  of  four  years  for  the  

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offence under Section 325 IPC in respect of accused No. 2  to one  

year.

2. The case of the prosecution which led to the conviction of  

accused  Nos.  1  and  2  is  that  the  deceased  Boddu  Maraiah  and  

accused No. 2 were having prior disputes between them.  The son of  

said accused loved the daughter of the deceased. As the elders did  

not agree to the proposal, the deceased married his daughter to some  

other person.  Even after her marriage, the son of accused used to go  

to her house and tried to create problems in her married life, because  

of which the son of accused was beaten by the deceased and his  

family members which became the subject matter of a criminal case.  

Thus, it  was alleged that there was inimical  term between the two  

families.   On 2.11.1998 at about 5.30 p.m., while  accused Nos. 1 to 5  

(A-1 to A-5) (accused No. 4 is son of accused No. 2; accused No. 2 is  

the nearest relative of accused No. 1; accused No. 3 is his son; and  

accused  No.  5  is  a  close  relative  of  accused  Nos.  1  to  4)  were  

returning to their village after finishing their fishing work and when they  

reached near the cattle shed of the deceased, they heard PW-2 (wife  

of deceased) abusing her cattle sarcastically.  All  are stated to be  

residents of Ramannamodi.  The accused suspected that PW-2 was  

abusing them.  On PW-2 being questioned by A-2 as to why she was  

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abusing them, the deceased interfered and attacked A-2.  A-1 also  

interfered  and  the  deceased  beat  him  whereupon  A-1  beat  the  

deceased on his head with a stick and induced A-2 to A-5 to beat the  

deceased.  A-2 beat the deceased by poking against his abdomen  

with stick near his naval, A-3 beat him on his back with a stick, A-1  

and A-4 beat PW-2 with sticks and caused injuries and A-1 and A-4  

beat PW-1 (son of deceased) on his left hand wrist and on his neck  

with  sticks.    After  beating  the  deceased,  PW-1  and  PW-2,  the  

accused ran away from the place of occurrence.  Later PW-1 went to  

police station and registered a complaint (Ex.P-13) and a case under  

Section 324/34 IPC was started.  The deceased, PW-1 and PW-2  

were sent to the Government Headquarters Hospital, Machilipatnam.  

After the deceased succumbed to injuries on 4.11.1998 in the hospital,  

the  police  altered  the  FIR  to  Section  302  IPC  and  took  up  

investigation, held inquest over the dead body, observed the scene of  

offence,  conducted  panchnama,  got  the  post  mortem examination  

done and after  receipt  of  post  mortem report  laid  the chargesheet  

under Section 302/34 IPC against A-1 and A-2, under Section 325  

against A-2, under Section 323 against A-1, A-4 and A-5 and under  

Section 114 against  A-5.    In support  of  its  case,  the prosecution  

examined PWs 1 to 14, marked Exhibits P-1 to P-23 and also MOs 1  

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to 26.  No defence witness was examined but Exhibits D-1 to D-9 were  

marked on their side.   

3.       PW-9 Dr. K. Sanjeevarao who held inquest over the dead  

body and issued  post  mortem certificate opined that  the deceased  

died of shock due to rupture of mesenteric vessel and damage to the  

intestines.   The  doctor  stated  that  the  injuries  mentioned  in  the  

certificate would have been caused with sticks like MOs1 to 5 and that  

the internal injuries 2 and 3 were sufficient to cause the death in the  

ordinary course of nature.  The following external injuries were found  

on the dead body:

1. A three sutured injury 1 ½” in length on the right parietal  region.

2. A blue black abrasion 3” x ¼ “ on the right shoulder. 3. A blue black abrasion 1” x ¼ “ over the left loin. 4. A black abrasion 1” x ½ “ on the back of right lumber  

region. 5. A blue black abrasion 1 ½ “ x 1” on the back and left  

lower part of the chest.

4. On internal examination, the doctor found (1)  about 2 ½  

litre  of  blood present  in  the abdominal  cavity and ½ litre  of  blood  

present in the pelvic cavity,  hemoperitoneum  present and all  the  

intestines  congested; (2) bluish contusion 6” x 1” on the middle third  

of small intestine; (3) the mesentance vessels ruptured and the entire  

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mesentery blood stained; (4)  three bluish blood clots each 30 grams  

on  the  mecentary near  the  superior  mesenteric  artery;  (5)  all  the  

internal organs like liver, both the lungs, spleen and both the kidneys  

congested; (6) the stomach empty and its mucosa congested;  (7) the  

brain and its menings congested; (8)  hyoid bone  intact; (9) urinary  

bladder and the gall bladder  empty; and (10) the chambers of the  

heart empty. The doctor opined that the deceased appeared to have  

died of shock due to rupture of mesenteric vessels and contusion of  

the intestines and death would have been occurred within 24 hours  

prior to the post mortem examination and Ex.P-7 is the post mortem  

certificate he issued.  The injuries mentioned in Ex.P-7 would have  

been caused with sticks like MOs.1 to 5 and that the internal injuries 2  

and  3  are  sufficient  to  cause  the  death  in  the  ordinary course  of  

nature.

5. As  regards injuries  to  PW-1 and PW-2,   PW-8 Dr.  M.  

Polaiah  who  medically  examined  PW-1  and  PW-2  stated  in  his  

deposition that he was of the opinion that injury No. 1 i.e. “Swelling  

deformity of lower third of left forearm. Tender” caused to PW-1 was  

grievous in nature and injury No. 2 i.e. “Abrasion of 1” x ¼ “ over the  

anterior of triangle of left side of neck.  Bleeding present” was simple  

in nature and those injuries could have been caused with sticks. As  

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regards injuries i.e. “Swelling deformity of left hand and Contusion of  

1”  x 2”  over right  shoulder blade”,  the doctor opined that  the said  

injuries were simple in nature and could have been caused with sticks  

as alleged.  

6. The  trial  court  on  consideration  of  testimony  of  the  

witnesses held that a case has been made out against A-1 and A-2  

(appellants herein) finding them guilty for the offences under Sections  

304/34, 324/34 and 325 IPC.  Accordingly, they were convicted for the  

offence under Section 304 IPC and sentenced to undergo rigorous  

imprisonment for 10 years and in default to suffer simple imprisonment  

for three months.  A-1 was further convicted for the offence under  

Section 323 IPC and sentenced to undergo rigorous imprisonment for  

six months.   A-2 was further convicted under Section 325 IPC and  

sentenced to undergo rigorous imprisonment for four years and also to  

pay a fine of Rs.500/- and in default to suffer simple imprisonment for  

two months.  A-4 and A-5 were sentenced to pay fine of Rs.1,000/-  

each, in default to suffer simple imprisonment for two months.  All the  

sentences  imposed  on  respective  accused  were  directed  to  run  

concurrently. A-3 had died on 5.12.1998 due to ill health while under  

judicial custody.  In arriving at its conclusion as regards conviction and  

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sentence of A-1 and A-2  (appellants herein), the trial court gave the  

following reasoning:

“21. …..The oral evidence and medical evidence on record  clinchingly proved that on account of injuries caused by A- 1  and  A-2  the  deceased  died,  especially  the  injuries  caused by A-2.  But the common intention of A-1 and A-2  in beating the deceased is clear.  Whether they intended  to kill him is doubtful, though PW-1 stated in his evidence  that the accused uttering `SACHADU NA KODUKU’  went  away because that material aspect was not mentioned by  him in Ex. P-1 or he stated the same before the Police.  The deceased also did not mention in Ex.P-20 that the  accused left the scene of offence uttering so.  Therefore,  the intention to cause death to the deceased on the part of  A-1 and A-2 cannot be inferred from the circumstances but  the  subtle  situation  led  each  party  to  self  provocation.  Consequently A-1 and A-3 beat the deceased as well as  PWs-1 and 2.  In fact on both sides there was no intention  or  preparation  for  the  quarrel.   It  was  a  sudden  and  unexpected quarrel that arose on account of bitter enmity.  Passions  roused  on  seeing  each  other.   Both  sides  plunged into a free fight.  So it can be safely held that A-1  and  A-2  in  furtherance  of  common  intention  beat  the  deceased Maraiah which injuries caused his death in the  ordinary course of nature.  It cannot be held that they have  committed the offence u/s 302 r/w section 34 IPC, but they  have committed an offence punishable u/s 304 r/w section  34 IPC, in other words culpable homicide not amounting to  murder.

22.    … it  has been established beyond doubt  that  on  account of the injury caused by A-1, the left hand of PW-1  was broken.   Not  only a  reading of  Ex.P-1  but  also  a  reading  of  Ex.P-20  coupled  with  the  oral  and  medical  evidence on record this offence against A-1 u/s 325 IPC  has been established.

xxx xxx xxx

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24.  It is the case of the prosecution that A-1 and A-4 beat  PW-2 and caused her two simple injuries with sticks.  PW- 2  received  injuries  on  her  left  hand and right  shoulder  blade.  The evidence of PW-8 and the wound certificate  Ex. P-6 corroborates the evidence of PW-1 and PW-2.  In  Ex. P-1 and P-20 also these injuries caused to PW-2 were  attributed to A-1 and A-4.  Thus, it has been established  by  the  prosecution  that  A-1  and  A-4  beat  PW-2  and  caused injuries to her by beating with sticks punishable u/s  323 IPC.”

7. Aggrieved by the judgment of the trial court, A-1 and A-2  

(appellants  herein)  preferred an appeal  before the High Court  and  

contended that as their guilt  was not proved beyond all  reasonable  

doubt, their conviction and sentence ought to be set aside.  The High  

Court  after going through the entire material on record held that the  

lower court gave sufficient reasons as to why the respective accused  

were  convicted  for  the  offences  under  various  Sections  of  IPC;  

cumulative effect of the injuries led to the death of the deceased and  

A-1  being  the  person  who  participated  in  the  commission  of  the  

offence was also having common intention to attack the deceased;  

there was no ground to interfere with the conviction of the accused for  

the offences under Sections 304, 325 and 323 IPC; and conviction  

under Section 304 could be brought under Section 304(2) IPC and  

accordingly modified the same.   After taking into consideration the  

motive  behind  the  incident,  the  nature  of  weapons  used  and  the  

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circumstances, the High Court was of the view that the accused did  

not use sharp edged weapons to kill  the deceased but they caused  

injuries with a knowledge that they are likely to cause the death.  In the  

result,  the  appeal  of  A-1  and  A-2  (appellants  herein)  was  partly  

allowed by the High Court as mentioned hereinbefore. Finally the High  

Court held:-

      “By taking into consideration the motive behind the  incident,  the  nature  of  weapons  used  and  the  circumstances explained by the learned defence counsel, I  am of the view that the accused did not use sharp edged  weapons to kill the deceased, but they caused injuries with  a knowledge that they are likely to cause the death.  As  the offence under Section 304 I.P.C. was brought under  Section  304(2)  I.P.C.,  the  sentence  of   imprisonment  imposed on the accused is excessive.  Therefore, I am  inclined  to  reduce  the  sentence  imposed  against  the  accused  for  the  offence  under  Section  325  I.P.C.  Therefore, the sentence imposed against  Accused No.2  for the offence under Section 325 I.P.C. is reduced.

In  the  result,  the  appeal  is  allowed in  part.   The  conviction of Accused Nos. 1 and 2 for the offence under  Section  304  I.P.C.,  is  modified  into  conviction  for  the  offence under Section 304(2) I.P.C.   Regarding Rigorous  Imprisonment,  it  is  reduced to rigorous Imprisonment of  three years to each of the accused.  The fine and default  sentence remain un-altered.  The conviction of Accused  No.1 for the offence  under Section 323 I.P.C., and the  sentence  of  Rigorous  Imprisonment  for  six  months  is  confirmed.  Conviction of  Accused No.2 for  the offence  under Section 325 I.P.C., is confirmed, but the sentence of  rigorous  imprisonment  of  four  years  is  reduced  to  Rigorouos Imprisonment of one year.  The fine amount  remains un-altered.   All  the sentences of  imprisonment  against each of the accused shall run concurrently.”

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8. Mr.  Venkateswara  Rao  Anumolu,  learned  counsel  

appearing for the appellants assailed the impugned judgment of the  

High Court mainly on the ground that  the conviction and sentence  

cannot be sustained as the injuries were inflicted by the appellants  

while exercising their right of private defence.  Admittedly, the accused  

–appellants  were  on  inimical  terms  with  the  deceased  and  the  

witnesses.   Learned  counsel  drew  our  attention  to  the  injuries  

sustained by the parties and the report of the doctor and submitted  

that  in  the  facts  and  circumstances  of  the  case,  the  impugned  

judgment of conviction is liable to be set aside.

9. Mr.  Shishir  Pinaki,  learned  counsel  appearing  for  the  

respondent, on the other hand, submitted that  the evidence of  the  

prosecution witnesses including the injured witnesses and the injuries  

inflicted on the deceased completely ruled out the application of right  

of private defence.

10. It is the cardinal principle of law that everyone has a right  

to defend his own person and property but the right of private defence  

cannot be exercised for  causing more harm than necessary or  for  

taking revenge.  Such right of  private defence must be used as a  

shield to avert an attack and it should not be vindictive and cannot be  

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used to retaliate.  In no case the right of private of defence extends to  

the inflicting of more harm than it is necessary to inflict for the purpose  

of defence.   

11.  From analyzing the evidence on record which has already  

been noticed by the trial court, it is clear that  appellant No.1(A-1) beat  

PW-1 on his  right  wrist  with a stout  stick  with the result  his  hand  

broken. A-5 also beat him on the right side of the neck with a stout  

stick.  Then the deceased interfered. He tried to rescue his son.  Then  

A-1 gave a blow on his head with stout stick and caused a bleeding  

injury.  To rescue the deceased, PW-2 interfered; then A-1 and A-4  

beat  her  with  sticks  on  her  hands  and  back  and  caused injuries.  

Though the deceased was already beaten on his head when his wife  

was being beaten by A-1 and A-4, he again mustered his strength and  

tried to interfere when A-2 poked with a stick on his abdomen and A-3  

beat him with a stick on his back and gave two blows.  In fact the  

deceased in his statement before the Police under Ex.P-20 said that  

A-2 did not simply poke in his abdomen by the side of his naval with a  

stick but in fact he pounded at his abdomen with the stick.  In other  

words, in vernacular ‘KULLA BODICHI NADU’ in fact this is the injury  

that led to the death of the deceased because the intestines were  

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ruptured  and bleeding took place internally and serious damage was  

caused  to  the  vital  organs  inside  and  caused  the  death  of  the  

deceased.

12. The High Court has fully gone into the evidence of the  

witnesses examined and injuries sustained by the deceased and PW-

2 and came to the conclusion that the cumulative effect of the injuries  

led to the death of the deceased and appellant No.1 being the person,  

who participated in the commission of the offence, was also having  

common intention to attack the deceased.  However, the High Court in  

the facts and circumstances of  the case modified the order of  the  

conviction and sentence.  

13. Considering the entire facts and circumstances of the case  

and the evidence available on record, we do not find any reason to  

interfere  with  the  impugned  judgment  of  conviction  and  sentence  

passed by the High Court.

14.   For the reasons aforesaid, there is no merit in this appeal,  

which  is  accordingly  dismissed.   The  bail  bonds  of  the  accused-

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appellants stand cancelled.  They shall  surrender forthwith to serve  

out the remaining period of the sentence.

……………………………..J. (P. Sathasivam)

……………………………..J. (M.Y. Eqbal)

New Delhi, April  26, 2013.

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