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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 353 OF 2008  

Babu and Anr.                          …… Appellants

Versus

State rep. by Inspector of Police, Chennai         …..  Respondent

WITH

CRIMINAL APPEAL Nos. 358-359 OF 2008  

Elumalai and Anr.                          …… Appellants

Versus

State rep. by Inspector of Police, Chennai         …..  Respondent

J U D G M E N T

A. K. PATNAIK, J.

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These  are  appeals  against  the  judgment  dated  

06.09.2007 of the Division Bench of the Madras High Court in  

Criminal Appeal Nos.641, 551 and 552 of 2006.

FACTS

2. The  facts  very  briefly  are  that  on  25.01.2004  at  

22:45  hours,  Dhanaprabhu  (hereafter  referred  to  as  the  

‘informant’)  lodged  a  First  Information  Report  in  Police  

Station K.4, Anna Nagar.  In this First Information Report, the  

informant  stated:  his  father  and  he  had  been  running  a  

plastic company in the name of ‘Economic Plastic Industries’  

and his younger brother, Ravi, is also in the said business.  

There was previous enmity between Ravi and one Elumalai  

and on 25.01.2004 at around 5.30 p.m. Elumalai telephoned  

to the wife of Ravi, Vijayalakshmi, and threatened her saying  

‘Ask your husband to behave or else, things will be different’  

and Vijayalakshmi informed this to her husband Ravi.   On  

the same day, at around 10.00 p.m., the informant, Ravi and  

his  friend Gubendiran were on their  way to  Naduvankarai  

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Pillaiyar  Kovil  Street,  through  the  Naduvankarai  Bridge.  

While  crossing  the  Seema  Matriculation  School  at  around  

10.15  in  the  night,  they  saw  Elumalai,  and  Ravi  asked  

Elumalai as to why he telephoned to his wife and threatened  

her, and at once Elumalai and Prakash retaliated and took  

out  knives  from their  hips  and  hacked  Ravi  on  his  head.  

Ravi’s head got cut and smashed and Ravi  fell  down in a  

pool of blood.  Gubendiran, who attempted to prevent the  

attack,  was hacked by Prakash with  a  knife  and this  was  

intercepted  by  Gubendiran  with  his  left  hand  and  

Gubendiran started bleeding.  Thereafter, Babu, Senthil and  

Nagaraj, who were with Elumalai, hacked on the head of Ravi  

with their knives and all of them ran away with their knives  

towards the East and Ravi died on the spot.  Pursuant to the  

FIR, a case was registered under Sections 147, 148, 341, 324  

and 302 of the Indian Penal Code, 1860 (for short ‘the IPC’).  

After investigation, a charge-sheet was filed against Elumalai  

(A-1), Prakash (A-2), Babu (A-3), Senthil (A-4), Nagaraj (A-5)  

and Udaya (A-6).

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3. At  the trial,  the informant was examined as PW-1.  

Gubendiran,  who accompanied Ravi  on  25.01.2004 to  the  

place of occurrence and witnessed the occurrence and got  

injured, was examined as PW-2.  Nagarajan, who had gone in  

search of Ravi  on 25.01.2004 at about 10 O’  clock in the  

night and come to the place of occurrence, was examined as  

PW-3.  On the basis of the evidence of PW-1, PW-2 and PW-3  

as well as other witnesses, the trial court convicted A-1, A-2,  

A-3  and  A-4  under  Sections  148  and  324  IPC  read  with  

Section 149 IPC and Section 302 IPC read with Section 149  

IPC and also convicted A-6 under Sections 147 and 324 IPC  

read with Section 149 IPC and Section 302 IPC.  The trial  

court, however, acquitted A-5 of all the charges. Aggrieved,  

the appellants filed Criminal Appeal Nos. 509, 641, 551 and  

552 of  2006 before the High Court  and by the impugned  

judgment,  the  High  Court  acquitted  A-6  (the  appellant  in  

Criminal  Appeal  No.  509  of  2006),  but  maintained  the  

convictions of A-1, A-2, A-3 and A-4.  Aggrieved, A-1, A-2, A-3  

and A-4 have filed these criminal appeals.

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CONTENTIONS ON BEHALF OF THE PARTIES

4. Mr.  P.R.  Kovilan  Poonakunpran,  learned  counsel  

appearing for A-3 and A-4, the appellants in Criminal Appeal  

No. 353 of 2008,  and Mrs. Anjani Aiyagari, learned counsel  

appearing for A-1 and A-2, the appellants in Criminal Appeal  

Nos.  358-359  of  2008,  submitted  that  originally  eight  

accused persons were charged for the offence under Section  

302  read  with  149  of  the  IPC,  but  two  of  these  accused  

persons were juveniles and were proceeded against under  

the  Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  

2000,  and out of the remaining five accused persons,  the  

trial  court acquitted A-5 and the High Court acquitted A-6  

and there remain only four accused persons (A-1 to A-4) who  

have been convicted under Section 302/149 of the IPC.  They  

submitted that for a conviction under Section 302 of the IPC  

with the aid of Section 149 of the IPC, a minimum of five  

accused persons have to form an unlawful assembly with the  

common object of causing the death of a person and in this  

case since after the acquittal of A-6 by the High Court, there  

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are only four accused persons, the conviction under Section  

302/149 of  the IPC  is  not  sustainable.   In  support  of  this  

submission,  they  relied  on  the  decision  of  this  Court  in  

Mohan Singh and Another v. State of Punjab (AIR 1963 SC  

174), Shaji and Others v. State of Kerala [(2011) 5 SCC 423]  

and  Raj  Kumar  alias  Raju  v.  State  of  Uttaranchal  (now   

Uttarakhand)  [(2008) 11 SCC 709].

5. Learned counsel  for  the  appellants  next  submitted  

that the offence under Section 302 of the IPC is in Chapter  

XVI of the IPC titled “Of Offences Affecting the Human Body”,  

whereas Sections 141 and 149 of the IPC are in Chapter VIII  

of  the IPC,  which is  titled “Of Offences against  the public  

tranquility”.  They submitted that the provisions relating to  

unlawful  assembly  thus  deal  with  offences  against  public  

tranquility and can have no application to offences against  

the human body and therefore the High Court is not right in  

maintaining the conviction of the appellants under Section  

302 of the IPC with the aid of Section 149 of the IPC.  

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6. Learned counsel for the appellants argued that the  

very  foundation  of  the  prosecution  case  is  that  on  

25.01.2004 at about 5.30 p.m. A-1 had telephoned to the  

wife of the deceased and threatened her and the wife of the  

deceased informed the deceased and at 10.00 p.m. on the  

same day the deceased along with PW-1 and PW-2 went to  

the place where the incident took place, but the prosecution  

has not been able to prove that there was a telephone in the  

house of the deceased.  In this context, learned counsel for  

the appellants referred to the evidence of the Investigating  

Officer,  PW-13,  to  the  effect  that  he  had  not  enquired  

whether  the  deceased  had  a  telephone  facility  at  his  

residence.   They  submitted  that  since  the  foundation  on  

which the prosecution case begun has not been proved, the  

trial  court  and  the  High  Court  should  not  have  held  the  

appellants guilty.

7. Learned  counsel  for  the  appellants  submitted  that  

the evidence of PW-1, PW-2 and PW-3, who claim to be eye-

witnesses, should not have been believed by the trial court  

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and  the  High  Court  to  convict  the  appellants.   They  

submitted that only PW-2 was with the deceased at the time  

of the occurrence,  and PW-1 in fact came to the place of  

occurrence in search of the deceased after the occurrence  

had  taken  place.   They  submitted  that  there  were  

discrepancies in the evidence of PW-1, PW-2 and PW-3.  They  

pointed  out  that  while  PW-1  has  stated  that  when  the  

incident took place there were 40 persons at the place of  

occurrence, PW-2 has stated that there was nobody nearby  

except the accused persons and PW-3 has stated that he has  

neither  seen  PW-1  nor  PW-2  at  the  place  of  occurrence.  

Learned counsel for the appellants submitted that the truth  

is  that  PW-2  had  earlier  named  someone  else  as  the  

accused, but he was put up in the lockup and pressurized by  

the police to name the appellants as the accused persons.  

They referred to the evidence of PW-2 to show that he was  

actually put in the lockup for five days and that he had given  

the oral complaint to the authorities in this regard.   

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8. They  further  submitted  that  there  were  several  

doubts with regard to the date and time when the FIR was  

lodged as well as the place where the FIR was lodged.  They  

referred to the evidence of PW-10, the Head Constable of K.4  

Police Station where the FIR was registered, to show that he  

has  not  stated  that  the  FIR  was  registered  at  the  Police  

Station.  They  submitted  that  PW-1  has  also  stated  in  his  

evidence that when he went between 10.30 p.m. and 11.00  

p.m. to the Police Station to lodge the FIR, he saw the Sub-

Inspector and the Sub-Inspector wrote the FIR, but he admits  

that he does not know the name of the Sub-Inspector and  

that he saw the Inspector on the next day and on the day  

when he lodged the FIR, he did not see the Inspector.  On  

the other hand, the FIR (Ext. P-21) shows that the Inspector  

of Police had himself signed the FIR on 25.01.2004.  They  

cited the decision of this Court in Meharaj Singh (L/Nk.) etc.   

v. State of U.P.  [(1994) 5 SCC 188] for the proposition that  

where there is delay in lodging of the FIR, there is danger of  

introduction of a false prosecution story as an afterthought.   

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9. Learned  counsel  for  the  appellants  submitted  that  

the investigation was defective inasmuch as the knives (MO  

1 to MO 5), which were alleged to have been used on the  

deceased  by  the  appellants  and  recovered  by  the  Police,  

have not been examined by finger print experts to find out  

the  real  accused  persons.  They  submitted  that  the  

appellants should be acquitted of the charge under Section  

302/149 of the IPC for the same reasons for which A-5 and A-

6 have been acquitted by the trial court and the High Court.  

10. Finally, learned counsel for the appellants submitted  

that the evidence led through PW-1, PW-2 and PW-3, in any  

case,  shows that after  provocation by the deceased there  

was a sudden fight between the accused persons on the one  

hand, and the deceased, PW-2 and PW-3, on the other hand,  

and  therefore  the  offence  allegedly  committed  by  the  

appellants falls under Exception 4 to Section 300 of the IPC  

and  the  appellants  are  at  best  to  be  guilty  of  culpable  

homicide  not  amounting  to  murder  and  are  liable  to  

punishment under Section 304 of the IPC.  They submitted  

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that  the  appellants  have  already  undergone  11  years  of  

imprisonment and should now be set at liberty.  In support of  

this submission, they relied on the decisions of this Court in  

Felix Ambrose D’Souza v. State of Karnataka [(2009) 16 SCC  

361],  State  of  Andhra  Pradesh  v.  Thummala  Anjaneyulu  

[(2010)  14  SCC  621]  and  Veeran  and  Others  v.  State  of   

Madhya Pradesh [(2011) 11 SCC 367].

11. In reply, learned counsel for the State, Mr. V. Balaji,  

submitted that both the trial court and the High Court have  

believed the evidence of PW-1, PW-2 and PW-3 and there is  

no good ground shown for this Court to discard the evidence  

of the aforesaid three eye-witnesses.  He further submitted  

that  it  is  not  correct  that  the  deceased  did  not  have  a  

telephone at his house as the evidence of PW-1 would show  

that  Vijayalakshmi,  the  wife  of  the  deceased,  had  a  cell  

phone.  He further submitted that PW-2 is a witness who was  

injured in the occurrence and this will be clear from the FIR  

in which it is stated that PW-2, who attempted to prevent the  

attack on the deceased, was hacked by Prakash with a knife  

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and as a result he got a cut on the left hand.  He submitted  

that the discrepancies in the evidence of PW-1, PW-2 and  

PW-3 pointed out by the learned counsel for the appellants,  

if any, are not material and in any event do not belie the  

prosecution case against the appellants that the knives with  

which the offence was committed (MO 1 to MO 5) have not  

been examined by finger print experts.  He further submitted  

that the FIR also corroborated the substantive evidence of  

PW-1, PW-2 and PW-3 and was registered within half an hour  

of the incident without any delay.   He submitted that the  

contention  of  the  appellants  that  date  and  time  of  the  

lodging of the FIR was doubtful has no substance as would  

be clear from Exts. P-1 and P-21 as well as the evidence of  

PW-1 and PW-13.   

12. In reply to the contention of the appellants that the  

appellants  are  at  best  guilty  of  culpable  homicide  not  

amounting  to  murder  under  Section  304  of  the  IPC,  he  

submitted that a perusal of the post mortem report (Ext. P-7)  

and  the  evidence  of  the  Doctor  who  conducted  the  

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postmortem,  PW-7,  would  show  that  there  were  multiple  

injuries on the face and head of the deceased on account of  

which the deceased died.  He argued that the injuries were  

of  a  very  grave  nature  and would  in  the  ordinary  course  

cause death  of  a  person  and therefore  the  appellants  by  

causing  the  injuries  intended  to  cause  the  death  of  the  

deceased and are guilty of the offence under Section 302 of  

the IPC.   

FINDINGS OF THE COURT  

13. It is not necessary for us to deal with the contention  

of the learned counsel of the appellants that the provisions  

of Sections 141 and 149, IPC, relating to unlawful assembly  

would  not  be  attracted  in  case  of  offences  affecting  the  

human body such as the offence under Section 302, IPC, nor  

is  it  necessary  for  us  to  deal  with  the  contention  of  the  

appellants that after the acquittal of A-5 and A-6 by the trial  

court and the High Court respectively, there were only four  

accused persons and for constituting ‘unlawful assembly’, a  

minimum  of  five  persons  are  necessary  because  we  find  

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from the evidence that the conviction of A-1, A-2, A-3 and A-

4,  the  appellants  herein,  under  Section  302,  IPC  can  be  

sustained without the aid of Sections 141 and 149, IPC.   PW-

1 has stated that at 10.25 p.m. on 25.01.2004, they saw that  

A-1 and A-2 had threatened the deceased and at that time A-

2 was standing close to A-1 and when the deceased abused  

A-1, all of them hacked the deceased on his head and the  

deceased swooned and fell down and at once A-1, A-2, A-3  

and A-4 along with three others attacked the deceased with  

the  knives.   PW-2  has  similarly  stated  that  when  the  

deceased asked A-1 as to why he was threatening his wife  

by phone, at once A-1 took out  his knife from his hip and  

hacked the deceased and the deceased fell  down and A-1  

cut his head and face and thereafter A-1, A-2, A-3, A-4 and  

three other persons hacked the deceased.  PW-3 has also  

stated  that  when  he  went  to  Naduvankarai  to  meet  the  

deceased, A-1 and A-2 hacked the deceased and the other  

accused  persons  kicked  the  deceased  and  tortured  the  

deceased and the accused were armed with knives.  Thus,  

the evidence of PW-1, PW-2 and PW-3 makes it clear that the  

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deceased  was  attacked  by  A-1,  A-2,  A-3  and  A-4  in  

furtherance of their common intention and therefore all the  

four  accused  persons  (the  appellants)  were  liable  for  the  

criminal  act  of  causing  the  death  of  the  deceased  under  

Section 34, IPC, as if the criminal act was done by each of  

them alone.  In Dhanna etc. v. State of M.P. [(1996) 10 SCC  

79], this Court has held that where the Court finds that the  

strength of the assembly was insufficient to constitute it into  

“unlawful  assembly”,  but  the  remaining  persons  who  

participated in the crime had shared common intention with  

the main perpetrators of the crime, the Court can take the  

aid of Section 34 of the IPC even if the said Section was not  

specifically mentioned in the charge.  

14. We have  considered  the  discrepancies  in  the  eye-

witnesses account of the occurrence given by PW-1, PW-2  

and  PW-3  pointed  out  by  the  learned  counsel  for  the  

appellants with regard to the names and number of persons  

who  were  present  at  the  place  of  occurrence  when  the  

incident took place on 25.01.2004, but we find that PW-1,  

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PW-2  and  PW-3  were  examined  on  21st September,  2005  

more than one and a half years after the incident and it was  

natural for them to differ in some respects of what they saw  

and what they remember.  As has been held by this Court in  

State of Rajasthan v.  Smt. Kalki and Another [(1981) 2 SCC  

752],  in  the  depositions  of  witnesses  there  are  always  

normal  discrepancies  however  honest  and  truthful  the  

witnesses may be and these discrepancies are due to normal  

errors of observation, normal errors of memory due to lapse  

of time, due to mental disposition such as shock and horror  

at the time of occurrence, and the like.

15. We  have  also  considered  the  contention  of  the  

learned counsel for the appellants that it is doubtful that the  

FIR was registered at the Police Station and that the FIR may  

not have been registered on 25.01.2004 but on the next day  

when PW-1 met  the  Inspector  of  the  Police  Station.   We,  

however,  find  that  the  Inspector  of  Police  who  has  been  

examined as PW-13 has stated very clearly in his evidence  

that on 25.01.2004 at 10.45 pm when he was at the Police  

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Station, PW-1 lodged a complaint and he wrote down that  

complaint  and  read  it  over  to  PW-1  and  obtained  his  

signature  and  registered  Crl  No.181/2004  under  Sections  

147, 148, 341, 324 and 302, IPC.   The complaint written by  

PW-1  has  been  marked  as  Ext.P-1  and  the  printed  FIR  

prepared by PW-13 has been marked as Ext.P-21.  PW-13  

has further stated that the printed FIR was sent to the 5 th  

Metropolitan  Magistrate  and  the  copies  were  sent  to  the  

higher  officials  concerned  and  immediately  he  visited  the  

place of occurrence at 11.30 p.m.  The evidence of PW-13 is  

supported by the evidence of PW-1 who has stated that after  

his brother died,  he informed his  house and informed the  

police at K.4 Anna Nagar Police Station and the police came  

and saw the place at which the murder was committed.  In  

his  cross  examination,  however,  he  has  stated  that  Sub-

Inspector had written the FIR and that he did not know the  

name of the Sub-Inspector and he saw the Inspector on the  

next day and when he lodged the complaint he has not seen  

the Inspector.  On a reading of the evidence of PW-1, in its  

entirety, one can only come to the conclusion that the FIR  

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was lodged by PW-1 on 25.01.2004 soon after the incident  

between 10.30 p.m. to 11 p.m. but PW-1 was confused as to  

the designation of the officer  before whom he lodged the  

FIR, the Sub-Inspector or the Inspector.  We have, therefore,  

no doubt that the FIR was lodged at the K.4 Police Station  

within half an hour of the incident on 25.01.2004.  Hence,  

the decision of  this Court  in  Meharaj  Singh (L/Nk.)  etc.  v.   

State of U.P.  (supra) that where there is delay in lodging of  

the FIR, there is danger of introduction of a false prosecution  

story does not apply to the facts of the present case.   

16. We also do not find any merit in the submission of  

learned  counsel  for  the  appellants  that  there  was  no  

evidence  to  show  that  at  the  residence  of  the  deceased  

there  was  a  telephone  through  which  the  wife  of  the  

deceased received the threat call from A-1 at 5.30 p.m. on  

25.01.2004.  PW-1 has stated that the wife of the deceased  

Vijayalakshmi had a mobile phone and A-1 had talked over  

cell phone to Vijayalakshmi.  Similarly, we do not find any  

merit in the submission of learned counsel for the appellants  

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that  the  prosecution  case  should  not  be  believed  as  the  

knives (MO 1 to MO 5) which have been recovered had not  

been examined by the finger print experts to find out the  

real  accused persons  because in  this  case  there  is  direct  

evidence of three eye witnesses, PW-1, PW-2 and PW-3, to  

establish beyond reasonable doubt that the appellants had  

struck  the  deceased  with  knives.   If  a  defect  in  the  

investigation does not create a reasonable doubt on the guilt  

of  the  accused,  the  Court  cannot  discard  the  prosecution  

case  on  the  ground  that  there  was  some  defect  in  the  

investigation.

17. We are also not convinced with the submission of the  

learned counsel for the appellants that this was a case which  

fell under  Exception 4 to Section 300, IPC.  Exception 4 to  

Section 300, IPC is quoted hereinbelow:

“Exception 4.  Culpable homicide is  not  murder  if  it  is  committed  without  premeditation in  a sudden fight  in  the  heat of passion upon a sudden quarrel  and without the offender  having taken  

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undue advantage or acted in a cruel or  unusual manner.”

The language of  Exception 4 to Section 300 is, thus, clear  

that  culpable  homicide  is  not  murder  if  it  is  committed  

without  premeditation  in  a  sudden  fight  in  the  heat  of  

passion upon a sudden quarrel provided the offender has not  

taken  undue  advantage  or  acted  in  a  cruel  or  unusual  

manner.  In this case, there is no evidence to show that the  

deceased was armed in any manner when he questioned A-1  

as to why he had threatened his wife.  On the other hand,  

the  appellants  were  armed  with  knives  and  attacked  the  

deceased  on  his  head  and  face  even  after  he  fell  down.  

Thus, A-1, A-2, A-3 and A-4, who were the offenders, have  

taken undue advantage and acted in  a cruel  and unusual  

manner towards the deceased who is  not  proved to have  

been armed.   

18. Moreover,  we  find  from  the  evidence  of  PW-7,  the  

doctor who conducted the post mortem of the deceased on  

26.01.2004 at around 12.45 hours, that he found as many as  

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six  injuries  on the head and face of  the deceased.  These  

injuries are extracted hereinbelow:

“Injury 1: A bruised injury in red colour  admeasuring 3x2 cm on the left cheek  and in 2x2 cm at the tip of the nose.

Injury 2: An oblique incised injury 3x0.05  cm bone deep on the lower jaw.

Injury 3: An incised injury vertical, 2x0.5  cm bone  deep  on  th4  left  side  of  the  lower jaw.

Injury 4: An incised injury, oblique 3x05  cm muscle deep on the lower lip on its  right side.

Injury  5:  Several  incised  injuries  crosswise and longitudinal.  On opening  it, it was found that the tissues on the  cranium  were  found  bruised  and  the  bones  of  the  skull  fractured and brain  smashed and visible from outside.

Injury  6:  An  incised  injury  seen  horizontally and gaping in between the  eyes,  22x6  cm.  on  dissecting,  it  was  found that,  all  the tissues,  nerves and  blood vessels had got cut the face was  smashed and the  upper  jaw bone and  the lower jaw bone crumbled.  Both the  eyes had got  completely smashed and  seen outside the eye-sockets.  The teeth  in the upper jaw and those of the lower  jaw were broken and some fallen.”

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PW-7 has further stated that due to these injuries sustained  

on his head and face, the deceased would have died as has  

been expressed by him in the  post mortem report Ext.P-7.  

Considering  the  nature  of  the  injuries  and,  in  particular,  

injury  nos.5  and  6,  we  have  no  doubt  that  the  common  

intention of A-1, A-2, A-3 and A-4 was to cause the death of  

the  deceased.   Accordingly,  A-1,  A-2,  A-3  and  A-4  (the  

appellants)  were guilty  of  the offences under  Section 302  

read with Section 34, IPC.

19. In the result, we find no merit in the appeals and we  

accordingly dismiss the same.

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

………………………..J.                                                                (H. L. Gokhale) New Delhi, March 19, 2013.    

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