REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1893 OF 2010

GURU @ GURUBARAN & ORS.  …APPELLANT(S)

Versus

STATE REP. BY INSP. OF POLICE        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against

the judgment of the High Court whereby Guru @ Gurubaran (A­1)

and Durai @ Durairajan (A­2) have been convicted under Section

302, Indian Penal Code (IPC) and sentenced to imprisonment for

life and to pay a fine of Rs.1000/­ each with default sentence of 3

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months rigorous imprisonment (RI).   As far as Vettri @ Vetrivell

(A­3) is concerned, he was convicted under Section 324 IPC on

two counts and sentenced to one year RI on each count and fine

of Rs.1000/­ with default sentence of 3 months.  Narayanan (A­5)

and Srinivasan  (A­9)  along  with  other  accused were  convicted

under Section 323 IPC and sentenced to undergo six months RI

and pay fine of Rs.1000/­ each with default sentence of 3

months.  All the sentences were to run concurrently.   

2. The prosecution case is that Parasuraman (PW­14), son of

deceased Saroja and Munusamy Pillai (PW­1), was in love with

Uma, the younger sister of A­1.  They both got married and after

the marriage, PW­14 lived in his wife’s house.   However, Saroja

(deceased) did not approve of this.  Thereafter, PW­14 came back

to his house.  On 03.03.1998, it is alleged that Jayaraman (A­4)

assaulted Nagarajan (PW­2), brother of Saroja and brother­in­law

of PW­1.  To settle the dispute, a Panchayat was called the next

day.  It is admitted that this Panchayat was called at the instance

of  A­1.  The  Panchayat  was to  be conducted in the evening.

However, since the Pradhan of the Panchayat was indisposed, the

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Panchayat could not be held.  Thereafter, PW­2, his sister Saroja

(deceased), his wife Rani (PW­7), Murugan (PW­13) and Naveen

Kumar, son of PW­2 and PW­7 stood outside the house of PW­2

talking amongst themselves.  According to him, PW­13 had come

to the village because of the Panchayat.   While they were

standing there, A­1 came  armed  with a sickle (Koduval), A­2

armed with an Iron Pipe, A­3 armed with a sickle (Koduval) and

A­4 to  A­9 carrying thick  wooden staffs in their  hands. It is

alleged that A­1 attacked deceased Saroja with a sickle on the

front portion of her head and said that it was only because of her

that the younger  sister  of  A­1 has  to  live  separately from her

husband.  A­2 gave a blow on the back of the neck of Saroja with

an  iron pipe.  The other accused are alleged to have attacked

Saroja with wooden staffs in their hand.   When the family

members of Saroja tried to protect her, all the 9 accused

surrounded her and, as such, they could not protect her.

According to the eye­witnesses, they were also attacked by the

members  of the  aggressive  party.  The  version of  all the  eye­

witnesses is similar.   

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3. However, there are some discrepancies with regard to the

manner in which the said incident took place.  According to PW­

1, on the date of Panchayat, first a verbal altercation took place

between the two sides and then the attack took place whereas,

according to PW­2 and some of the other eye­witnesses, the

attack took place without any provocation.   We are of the

considered view that for the purpose of deciding this appeal, we

can even presume that there was some verbal altercation

between the two sides.   

4. The occurrence is  not  denied.  The main defence is that

there was a free fight on both sides and that there is no evidence

to show that there is prior meeting of minds.   The accused had

not been convicted under Section 34 or Section 149  IPC and,

therefore, each individual accused can only be convicted for the

injury attributed to that individual.   Therefore, it becomes

relevant to refer to the medical evidence of the autopsy surgeon

Dr.  Rajamani,  Assistant  Surgeon (PW­3).  The injuries  are  as

follows:

“1. An Antemortem red, oblique lacerated wound measuring 6cm x 1cm x 1cm, exposing the bones over the

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left frontal region of scalp, 1 cm away from the midline with bleeding and blood clots.   On Exploring the wound, echymosis seen behind the scalp over the frontal, parietal, temporal and back of skull.   There is a fracture of frontal bone measuring 5 cm in length, vertical, para sagittally and 1cm away from midline over the left side, extended to upwards to fronto parietal junction,  and another fracture line which  is adjacent  to it  and slightly oblique  from the frontal bone to towards fronto parietal junction,   4cm x 1/8

on and on exposing the skull bones blood clots seen over the membranes of the leftcerebral hemisphere of brain on the  frontal,  parietal, temporal  and occipital region, of the brain.  Both fractures are involving inner and outer table of the skull.

2. An abrasions varying size from 3cm to 21/2cm x ¼ cm with ½  cm different from each other, oblique, placed over middle 1/3 of right side neck.

3. An AM abrasion 21/2cm x ¼ cm obliquely placed 1cm away from injury No.2 on right side of neck.   

4. An AM swelling whole of the anterior and lateral side of right side neck.  On exposing the injury No.2, 3, 4 minor blood clots under the skin of neck and congestion of sternomastoid muscle and blood clots seen in anterior and lateral side of right side neck.”      

5. The doctor states that these injuries caused the death.  The

first injury is a lacerated wound and it is urged by

Mr. S. Nagamuthu, learned senior counsel, that this injury could

not have been caused by sickle (Koduval), which is a sharp­edged

weapon.  A sickle is  an instrument  mainly  meant for cutting

grass and crops.   The inner side is sharp but the outer side is

blunt.   While using it as an instrument of agriculture only, the

sharp edge is used but while using it  as a weapon of offence,

more often than not, it will be the outer side which will be used to

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hit the victim.  The doctor has opined that the injury could have

been caused by a sickle which is MO­1 and, therefore, the

medical evidence fully corroborates the  version of  all the  eye­

witnesses.

6. It was next urged that the offence was not of murder but

may amount to culpable homicide not amounting to murder.   It

has been urged that the case would fall within Exception 4 to

Section 300 IPC, which reads as follows:

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

7. We are of the view that the accused cannot take benefit of

this  Exception.   It  has  come  in  evidence that  all the  accused

persons came armed.  Two were armed with sickles, one with an

iron pipe and the other with wooden staffs.  Even if it is assumed

that they may not have come with the intention of killing, the fact

that they were armed, clearly indicates that the occurrence did

not take place in the heat of passion, upon a sudden quarrel.  As

pointed out above, both sides were coming to attend a Panchayat

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to settle  a dispute.  Where was the need to carry arms if the

intention was only to settle a dispute?   Even otherwise, we feel

that Exception 4 is not applicable because the manner in which

the blow was given right on the middle of the head, brings this

case squarely within clause “Fourthly” of Section 300 IPC, which

reads as follows:

“300. Murder – xxx         xxx xxx  

Secondly ­ xxx         xxx xxx  

Thirdly ­ xxx         xxx xxx  

Fourthly ­  If  the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”   

8. A­1 should have known that the act which he is performing,

of hitting the deceased on the head with a sickle with such great

force causing fracture of the skull, is so dangerous that it would

have imminently caused death.   Therefore, we find no reason to

alter the sentence or conviction of Guru @ Gurubaran (A­1).   

9. However, as far as Durai @ Durairajan (A­2) is concerned,

since the High Court has held that neither Section 34 nor Section

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149 IPC are applicable, each accused will only be responsible for

his own acts and injuries.  In this behalf, reference was made to

a judgment of this Court in the case of Atmaram Zingaraji vs.

State of Maharashtra1.  There is no appeal by the State.  As far

as A­2 is concerned, he is alleged to have given a blow with an

iron pipe on the back of the neck of the deceased.  This resulted

in injury numbers 2 and 3.  They are merely abrasions and could

not have caused death.  Therefore, the accused can only be held

guilty of  having committed the offence under Section 324 IPC.

He  has  already  undergone imprisonment for  around 11  years

and, therefore, his conviction under Section 302 IPC is altered to

Section 324  IPC and the sentence  is  reduced to  the period of

incarceration already undergone.  As far as Vettri @ Vetrivell (A­

3), Narayanan (A­5) and Srinivasan (A­9) are concerned, we find

no reason to interfere with the judgment of the High Court as

each has been held guilty for the offence which they have

committed.

10. In view of the above, the appeal of Accused Nos. 1, 3, 5 and

9 is dismissed and the appeal of Accused No. 2 is allowed and his 1 (1997) 7 SCC 41

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conviction is altered from offence punishable under Section 302

IPC to offence punishable under Section 324 IPC and the

sentence is reduced to the period of incarceration already

undergone.

11. Accused­Appellant  Nos.1  & 2  were  granted  bail  vide this

Court’s order dated 08.01.2018.  In view of the above, bail bond

of  Appellant  No.1 (A­1) is cancelled.  He shall be taken into

custody forthwith to serve remaining period of the sentence and

bail bond of Appellant No.2 (A­2) is discharged.   Pending

application(s), if any, stand(s) disposed of.

…………………………J. (Deepak Gupta)

…………………………J. (Aniruddha Bose)

New Delhi September 27, 2019

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