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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1360 OF 2017 (Arising out of SLP (Crl.) No.7068/2016)

Madhavan & Ors   ..…. Appellants

Versus

The State of Tamil Nadu   …...Respondent

J U D G M E N T

A.M. KHANWILKAR, J.

1. The appellants (Accused Nos. 1 to 5, respectively) were tried

for an offence punishable under Sections 147, 324, 324 r/w 149,

355 r/w 149, 506 (ii), 506 (ii) r/w 149, 302 and 302 r/w 149.

The appellant no. 2 is the wife of appellant no. 1.  The appellant

nos.  3  and  5  are  the  sons  of  appellant  nos.  1  and  2.   The

appellant no. 4 is the wife of appellant no. 3.  According to the

prosecution, on 4.12.2004, at about 7.00 a.m., near the house of

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PW1-Saradha, due to previous enmity in connection with some

land dispute between the appellants’ family and the family of the

deceased, the appellants with the common object of causing the

death of the deceased Periyasamy (husband of PW1) and causing

hurt to witnesses Saradha (PW1) and Tamil Selvan (PW2), formed

themselves into an unlawful assembly and committed riot. The

appellant no. 1 assaulted PW1 and PW2 with “Thadi” (wooden

log) on their left leg knee and chest respectively, causing simple

injuries. During the altercation, appellant no. 2 caught hold of

PW2 and appellant no. 4 pulled the tuft of PW1 and dishonoured

her.  The appellant nos. 1 to 4 criminally intimidated PW2 and

also assaulted deceased Periyasamy indiscriminately on his chest

with thadi. The appellant no. 5 also assaulted Periyasamy with

thadi on his left side chest and left leg.  Resultantly, Periyasamy

suffered injuries  and was rushed to  the  hospital  in  a  serious

condition.  Finally,  whilst  in  hospital  Periyasamy was  declared

dead on 9th December, 2004.  

2. In this background, the appellants were charged and tried

for  the  aforementioned offence.   The prosecution examined 18

witnesses  to  prove  the  charges  against  the  appellants.   The

defence of the appellants, as can be discerned from the written

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statement filed by the appellants purported to be under Section

313 of the Criminal Procedure Code, was that the complainant

party was the aggressor. They started the fight and assaulted the

appellants.  The appellants  had suffered injuries.  However,  the

prosecution  failed  to  explain  the  injuries  sustained  by  the

appellants.  The prosecution also failed to explain as to why the

complaint made by the appellants was not pursued to its logical

end after investigation.  According to the appellants, the genesis

of the crime has been suppressed by the prosecution.  Further,

the evidence produced by the prosecution was contradictory and

did  not  establish  the  guilt  of  the  appellants.   The appellants,

however, did not produce any oral evidence.   

3. The  Additional  District  and  Sessions  Judge,  Krishnagiri,

who tried the appellants in Sessions Case No. 62 of 2006, after

analyzing  the  evidence  produced  by  the  prosecution  and

adverting to each of the contentions raised by the appellants vide

judgment dated 19th November, 2008, found all  the appellants

guilty of the stated offence. The operative part of the judgment of

the Trial Court reads thus:--

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“In the result,

In respect of 1  st   charge:

A.1 to A.5 are found guilty for the offence punishable  u/sec.  147  of  IPC.,  convicted  and sentenced to undergo RI for TWO years each and shall pay a fine of Rs. 500/- each ID to undergo SI for SIX months.

In respect of 2  nd   charge:

A.1 and A.4 are found guilty for the offence punishable  u/sec.  334  (2  counts)  of  IPC., convicted and sentenced to  undergo SI for  ONE month each and shall   pay a fine of  Rs.  500/- each. ID SI for 20 days each.

In respect of 3  rd   charge:

A.1,  A.3  and  A.5  found  not  guilty  for  the offence punishable u/sec. 324 r/w. 149 of IPC., and they have acquitted from their charges u/sec. 235(1) of CrPC.,  

In respect of 4  th   charge:

A.2 and A.4 found not guilty for the offence punishable  u/sec.  355  of  IPC.,  and  they  have acquitted  from  their  charges  u/sec.  235(1)  of Cr.pc.

In respect of 5  th   charge:

A.1,  A.3  and  A.5  found  not  guilty  for  the offence punishable  u/sec.  355 r/w.149 of  IPC., and  they  have  acquitted  from  their  charges u/sec.235(1) of Cr.P.C.,

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In respect of 6  th   charge:

A.1,  A.3  found  not  guilty  for  the  offence punishable  u/sec.506(ii)  of  IPC.,  and they have acquitted from the charges u/sec.235(1) of Crpc.,

In respect of 7  th   charge:

A.2,  A.4  and  A.5  found  not  guilty  for  the offence punishable u/sec.506(ii) r/w 149 of IPC., and  they  have  acquitted  from  the  charges u/sec.235(1) of Crpc.,

In respect of 8  th   charge:

A.3  and  A.5  found  guilty  for  the  offence punishable u/sec.304 Part (2)  of  IPC.,  convicted and sentenced to undergo RI for TEN Years each and shall pay a fine of Rs. 1000/- each ID SI for 12 months.

In respect of 9  th   charge:

A.1  is  alone  found  guilty  for  the  offence punishable u/sec.304 Part (2)  of  IPC.,  convicted and sentenced to undergo RI for TEN Years and shall  pay  a  fine  of  Rs.  10000/-ID  SI  for  12 months.

A.2 and A.4 found not guilty for the offence punishable u/sec.304 part (2) r/w.149 of IPC A.2 and A.4 acquitted from their charges u/sec.235(1) of IPC.

Substantive  sentences of  imprisonment are ordered to  run concurrently.  Period  of  detention undergone if  any by the A.1 to A.5 to be set off against the sentence of imprisonment imposed on them. M.O.1 is destroyed after the appeal time is over.”

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4. The appellants challenged the decision of the Trial Court by

way of Criminal Appeal No. 832 of 2008 before the High Court of

Judicature  at  Madras.   In  this  appeal,  five  main  points  were

urged  by  the  appellants,  as  noted  in  paragraph  14  of  the

impugned judgment. These contentions were a reiteration of the

points urged before the Trial Court on behalf of the appellants.

The same have been appropriately considered by the Trial Court

and rejected, being devoid of merits. The High Court was pleased

to affirm the view taken by the Trial Court as just and proper and

rejected the said contentions.  In other words, both the Courts

have concurrently found that the evidence of eye witnesses, in

particular, PWs 1, 2 and 5, was credible and sufficient to bring

home the guilt against the appellants for the concerned offences.

The evidence clearly shows that on 4.12.2004 in the morning at 7

o’clock when PW1 was erecting fence around the nursery, at that

time appellants  gathered on the  spot  and smashed the  fence.

When PW1 questioned them, she was assaulted by appellant no.

4 and also by appellant nos. 1 and 3. Her husband, deceased

(Periyasamy) rushed to support and rescue PW1. The appellant

nos. 1, 2 and 5 assaulted Periyasamy on left side of his head,

chest and cheek with thadi. The injuries caused to the members

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of the complainant party have been proved by the prosecution

including by examining Dr. Chandrasekaran PW 11. He had not

only examined PW1 and PW2 immediately after the incident but

also the appellants. The injuries suffered by the appellants were,

however,  found  to  be  simple  injuries.  The  nature  of  injuries

caused to deceased Periyasamy has been corroborated by Dr. R

Vallinayagam PW16, who conducted his post mortem.  He has

opined that about eleven ante mortem external injuries and rigor

marks were present all  over the body of deceased Periyasamy.

The internal injuries caused to him have also been noted in the

post  mortem  report  (Ex.  P10).   He  opined  that  deceased

succumbed to death due to injury sustained on his head.  The

Trial Court rejected the contention of the appellants that the true

genesis of the offence is not forthcoming and in fact has been

suppressed by  the  prosecution by  not  offering  explanation for

pursuing the Crime No. 375 of 2004 registered at the instance of

the appellants.  The Trial Court held that there was no tangible

reason to  discard the  evidence of  PWs 1,  2 and 5 which was

truthful and reliable.  The Trial Court also held that the evidence

establishes  that  a free  fight  started between the  family  of  the

appellants  and  the  family  of  the  complainant  party  in  which

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Periyasamy suffered injuries caused by thadi to which he finally

succumbed. The Trial Court rejected the contention raised by the

appellants that the prosecution bypassed the earlier report and

the statement given by PW1 in Krishnagiri Government Hospital.

The Trial  Court also rejected the plea taken by the appellants

that the place of occurrence was doubtful. The High Court has

agreed with the conclusions reached by the Trial Court on each

ground urged by the appellants.

5. We have heard the learned counsel for both sides. We have

perused  the  evidence  adverted to  by  the  two Courts  below to

record the finding of guilt against the appellants.  After careful

consideration  of  the  said  evidence,  we  have  no  hesitation  in

taking the view that the finding and conclusion reached by the

two Courts below for convicting the appellants for the concerned

offence  is  unexceptionable.   The  evidence  clearly  shows  the

manner  in  which  the  incident  took  place.  Even  though  the

appellants have taken a stand in the written statement purported

to be filed under Section 313 of the Code, they did not produce

any evidence  but  merely  chose  to  rely  on the  infirmity  of  not

pursuing Crime No. 374 of 2004 to its logical end. That infirmity

cannot belie the evidence produced by the prosecution which has

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been found to be truthful and reliable.  We are not inclined to

interfere with the concurrent findings of facts as recorded by the

two Courts below. The involvement of the appellants has been

spoken by the eye witnesses including the injured eye witnesses

PW1 and PW2.  Much ado was made by the appellants about the

failure of the prosecution to explain the injuries suffered by the

appellants (accused party) and to contend that the real genesis of

the crime was not forthcoming. This contention has been rejected

by the Trial Court as well as the High Court, having found that

the injuries suffered by them were simple injuries and would not

make any difference to the case established by the prosecution.

We have no reason to deviate from the concurrent view so taken

by the two Courts below.  Suffice it to observe that the finding of

guilt recorded against each of the appellants is in conformity with

the evidence produced by the prosecution.  Hence, the order of

conviction against the appellants needs no interference.  

6. Learned Counsel for the appellants, alternatively, contended

that the sentence awarded to the appellants is excessive.  For,

the Courts below have found that the incident occurred due to

sudden fight in the heat of passion upon a sudden quarrel and

without the accused having taken undue advantage or acted in a

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cruel or unusual manner and that the appellants had used only

thadi  which  was  easily  available  on  the  spot,  it  was  not  a

pre-meditated crime committed with the intention to cause death

or  to  cause  such  bodily  injury  as  is  likely  to  cause  death.

Besides, there was previous enmity between the two families due

to a pending dispute which led to the incident.  He submits that

neither the Trial Court nor the High Court has analysed the issue

regarding quantum of sentence, keeping in mind the principle of

nature of offence as also the circumstances in which the offender

committed the crime and other mitigating circumstances.  The

learned counsel for the State fairly submits that on the quantum

of sentence, he would leave it to the Court to take appropriate

view.  

7. In the first place, it be noted that the Trial Court, whilst

awarding  sentence  to  the  respective  appellants,  has  not  made

any  analysis  of  the  relevant  facts,  as  can  be  discerned  from

paragraph 67 of the judgment of the Trial Court. The same reads

thus:-  

“67. When the A.1, A.2 and A.5 were questioned u/sec.  235  (2)  of  Crpc.,  with  regard  to  the quantum of  sentence which may be imposed on them; they have replied as follows:

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A1: Give minimal sentence. A2: Give minimal sentence. A3: Give minimal sentence. A4: Give minimal sentence. A5: Give minimal sentence.

Question  of  sentence  heard.  Their  replies have  been recorded.   The  reply of  the  accused persons  and  their  family  circumstances  are considered  carefully.  They  have  committed  the above said offence. Their conduct in this regard have also been considered deeply.”

8. Notably,  the  High Court  has  not  considered the  issue of

quantum of sentence at all, but mechanically proceeded to affirm

the  sentence  awarded  by  the  Trial  Court.  From  the  factual

position, which has emerged from the record, it is noticed that

there  was  a  pre-existing  property  dispute  between  the  two

families.  The  incident  in  question  happened  all  of  a  sudden

without any premeditation after PW1 questioned the appellants

about their behavior.  It was a free fight between the two family

members.   Both sides suffered injuries during the  altercation.

The fatal injury caused to Periyasamy was by the use of thadi

(wooden  log)  which  was  easily  available  on  the  spot.  The

appellants, on their own, immediately reported the matter to the

local  police  alleging  that  the  complainant  party  was  the

aggressor.  No antecedent or involvement in any other criminal

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case has been reported against the appellants.   Taking oral view

of  the  matter,  therefore,  we find force in the  argument of  the

appellants that the quantum of sentence is excessive.   

9. We may usefully refer to the decision of this Court (one of

us, Justice Dipak Misra speaking for the Court) in the case of

Gopal  Singh Versus  State  of  Uttarakhand1 enunciated  the

necessity  to  adhere  to  the  principle  of  proportionality  in

sentencing policy. In paragraphs 18 and 19 of the said decision,

the Court observed thus:

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind,  simultaneously  the  principle  of  proportionality between  the  crime  and  punishment  cannot  be  totally brushed aside.  The principle  of  just punishment is  the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately  excessive. The  concept  of  proportionality  allows  a  significant discretion to the Judge but the same has to be guided by certain  principles.  In  certain  cases,  the  nature  of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future,  capability  of  his  reformation  and  to  lead  an acceptable  life  in  the  prevalent  milieu,  the  effect  – propensity  to  become  a social  threat  or  nuisance,  and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social  mainstream may be the guiding factors.  Needless  to  emphasize,  these  are  certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket

1  (2013) 7 SCC 545

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formula nor a solvable theory in mathematical exactitude. It  would  be  dependent  on  the  facts  of  the  case  and rationalized  judicial  discretion.  Neither  the  personal perception of  a Judge nor self-adhered moralistic vision nor  hypothetical  apprehensions  should  be  allowed  to have  any  play.  For  every  offence,  a  drastic  measure cannot be  thought of.  Similarly,  an  offender  cannot be allowed to be treated with leniency solely on the ground of  discretion  vested in a Court.  The real  requisite  is  to weigh  the  circumstances  in  which  the  crime  has  been committed and other concomitant factors which we have indicated hereinbefore  and also  have  been  stated in  a number  of  pronouncements  by  this  Court.  On  such touchstone,  the  sentences  are  to  be  imposed.  The discretion should not be in the realm of fancy. It should be  embedded  in  the  conceptual  essence  of  just punishment.

19. A Court, while imposing sentence, has to keep in view the  various  complex  matters  in  mind.  To  structure  a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on  the  Judge  who  is  guided  by  certain  rational parameters,  regard been had to the factual  scenario of the  case.  In  certain  spheres  the  legislature  has  not conferred that discretion and in such circumstances, the discretion  is  conditional.  In  respect  of  certain  offences, sentence  can  be  reduced  by  giving  adequate  special reasons. The special reasons have to rest on real special circumstances.  Hence,  the  duty  of  Court  in  such situations becomes a complex one. The same has to be performed with due reverence for Rule of  the collective conscience  on  one  hand  and  the  doctrine  of proportionality,  principle  of  reformation  and  other concomitant  factors  on  the  other.  The  task  may  be onerous but the same has to be done with total empirical rationality  sans  any  kind  of  personal  philosophy  or individual experience or any a-priori notion.”

10. Considering the above and keeping in mind the facts of the

present case, the nature of the crime, subsequent conduct of the

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appellants, the nature of weapon used and all  other attending

circumstances  and  the  relevant  facts  including  that  no

subsequent  untoward  incident  has  been  reported  against  the

appellants and the mitigating circumstances, we are inclined to

modify the sentence period in the following terms:-  

a)  The sentence period awarded to appellant nos. 2 and 4 for

offences  punishable  under  Sections  147  and  334

respectively  of  IPC  will  stand  reduced  to  period  already

undergone without disturbing the fine amount specified by

the Trial Court and affirmed by the High Court.   

b) The sentence period awarded to appellant nos. 1, 3 and 5

for offences punishable under Sections 304 part (2) r/w 149

and 304 part (2) of IPC respectively will stand reduced to

five years each without disturbing the fine amount awarded

by the Trial Court and affirmed by the High Court.  

11. In other words, this appeal partly succeeds to the extent of

modification of quantum of sentence period as noted above.

12. Accordingly,  the  appeal  is  partly  allowed  in  the

aforementioned terms.  Appellant nos. 1, 3 and 5, are already in

custody.  They shall  undergo the  remaining sentence period in

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terms of this order after providing them set-off.  Bail bonds of

appellant nos. 2 and 4 stand discharged.  

………………………………….J. (Dipak Misra)

………………………………….J. (A.M. Khanwilkar)

New Delhi, Dated: August 14, 2017