http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  550 of 2003

PETITIONER: Chinnaiah @ Chinnasamy                      

RESPONDENT: State by Inspector of Police, Tamil Nadu          

DATE OF JUDGMENT: 18/09/2003

BENCH: N. Santosh Hegde & B.P. Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       Ten accused persons including the appellant in this  appeal were sent up for trial before the Sessions Court,  Pasumpon Muthuramalinga Devar District, Sivaganga in  Sessions Case No.16 of 1993 for various offences, principal of  which was one punishable under Section 302 IPC. The trial  court as per its judgment dated 23.12.1994 convicted all the  accused under various Sections including for an offence  punishable under Section 302 IPC and sentenced them to  undergo imprisonment for life. He also sentenced them to lesser  period of imprisonment on other charges. In appeal, the High  Court confirmed the conviction of A-1 under Section 302 IPC  along with convictions under other charges and confirmed the  sentences awarded by the trial court. It convicted A-3 under  Section 304, Part I, IPC and sentenced him to undergo RI for 7  years on that count, it also convicted A-3 for various other  offences for which lesser punishments were awarded. It also  convicted A-8 for an offence punishable under Section 307 read  with 149 IPC and sentenced him to undergo 7 years’  imprisonment on that charge and for other lesser offences  separate sentences were awarded but directed those sentences to  run concurrently. Other appellants before the High Court were   sentenced for lesser offences, particulars whereof are not  necessary to be mentioned for the purpose of disposal of this  appeal. Suffice it to say that it is only the present appellant   before us in this appeal, challenging his conviction, as stated  above.         It will be sufficient to mention for the disposal of this  appeal that the prosecution had alleged that all the accused  persons and six other unnamed accused who were not sent up  for trial, formed themselves into an unlawful assembly and with  the common object of causing the murder of PW-1 went to the  house of PW-22 in the early morning of 24.8.1999 where PW-1  had gone to help PW-22 in his agricultural operations and  caused injuries to PWs.1, 3, 5 and 6 with lethal weapons and  also caused the death of one Manimaran who, according to the  prosecution, tried to prevent the accused persons from attacking  PW-1. Even according to the prosecution case, the accused had  no grievance or motive against said Manimaran when they  came to attack PW-1 and it is only because he prevented them  from attacking PW-1. Said Manimaran was attacked by the  accused causing his death. In this attack the prosecution alleged  that the accused caused one oblique spindle shaped wound 5 x 2  cms. on the left chest 6 inches below the nipple.    

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

       Prosecution alleged that A-2 who is not an appellant  before us also caused an oblique spindle shaped wound 5 x 2  cms. on the middle of the neck. The cause of death, according  to the doctor, was the two wounds caused by the appellant and  A-2.

       As noted above, the trial court found all the accused  guilty of having committed the murder of the deceased  and  with the aid of Section 149 I.P.C. But the High Court isolated  A-1 alone  for convicting him of an offence punishable under  Section 302 IPC while in regard to A-2, the High Court found  him guilty of an offence punishable under Section 304, Part I,  IPC. The High Court has not given any reason whatsoever for  distinguishing the act of A-1 from that of A-2. According to the  medical evidence it is the act of the appellant together with that  act of A-2, was the cause of death of the deceased.         It is in the above background, Mr. Siddarth Dave, learned  counsel appearing for the appellant, though originally argued  against the finding of guilt recorded by the courts below against  the appellant, alternatively contended that at any rate the act of  appellant, cannot be held to be anything more than the act of A- 2 who was convicted for an offence under Section 304, Part I,  IPC only. The High Court was not justified in convicting the  appellant for an offence under Section 302 IPC.  We have heard learned counsel for the parties and also  perused the records. Though there may be some merit in the  argument of learned counsel for the appellant that the evidence  of  PW-1 cannot be believed to base a conviction on the  appellant, we are of the opinion that the evidence of PW-6 who  is the brother of the deceased who is not in any manner  inimically disposed towards the appellant, can not be rejected  on any ground, therefore, the factum of the appellant causing  the injuries to the deceased attributed to him by the courts  below, in our opinion, is justified. The question then is whether  the High Court was justified in differentiating between the act  of the appellant and A-2. We have noticed that the death of the  deceased is not attributed solely to the act of the appellant. The  doctor concerned has opined that the cause of death was due to  the cumulative effect of the injuries caused by the appellant and  A-2, therefore, there is no basis to differentiate between the acts  of the appellant and A-2 while examining the nature of offence  committed by them. As a matter of fact, the High Court has not  even tried to do that. In the course of its judgment, the High  Court observed :  "The evidence of P.W.7 Doctor would  go to show that the injury Nos.1 and 2 were  fatal, â\200¦ From the postmortem certificate  marked as Ex.P9, it would be clear that the  deceased would have died of shock and  haemorrhage due to injuries to vital organs  and multiple injuries. P.W.7 Doctor has  clearly opined that the external injury Nos.1  and 2 and the corresponding internal injuries  were fatal, â\200¦".

 In the latter part of the judgment the High Court while  rejecting the prosecution case in regard to the application of  Section 149 IPC, it observed :  "â\200¦ they had no common object or  intention to kill or attack him. There was no  consensus among the accused or meeting of  mind among them in that regard. Nowhere it is  found that A-1 made any utterance directing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

any of the accused to attack the deceased. â\200¦  Under such circumstances, it cannot be held  that there was any unlawful assembly, having  the common object of killing or attacking the  deceased Manimaran."  

Then the High Court abruptly comes to the following  conclusion :

"â\200¦ in view of the reasons stated and  discussions made above, the first appellant/A-1  is found guilty under section 302 of I.P.C.,  while the third appellant/A-3 is found guilty  under section 304 Part I of I.P.C."

       We have carefully perused the judgment to find out  whether the High Court in its preceding paragraphs of the  judgment has anywhere given any reason for making a  distinction between the acts of the appellant and A-2 but we  find none.

       In such circumstances, we think it appropriate to modify  the conviction recorded by the High Court under Section 302  IPC against the appellant to one under section 304, Part I, IPC,  for which offence we award a sentence of 7 years’ RI to the  appellant. We maintain all other convictions and sentences  awarded by the High Court to this appellant but direct the  substantive sentences to run concurrently. The sentence  undergone by the appellant shall be given remission. With the  said modification, this appeal is partly allowed.

        1

1