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CASE NO.: Appeal (crl.)  74 of 2008

PETITIONER: MARIMUTHU & ORS.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT: 11/01/2008

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

@ SPECIAL LEAVE PETITION (CRL) NO. 637 OF 2007

C.K. THAKKER, J.

1.              Leave granted.

2.              The present appeal is filed against  judgment and order passed by the High Court of  Madras (Madurai Bench) on August 21, 2006 in  Criminal Appeal Nos.33 and 36 of 1998 by which  it partly confirmed the order of conviction and  sentence recorded by I Addl. District Judge- cum-Chief Judicial Magistrate, Tiruchirapalli  on December 8, 1997 in Sessions Case No. 8 of  1997. 3.              The facts of the case are as under: 4.              Seven accused were prosecuted for  various offences punishable under Sections 302,  307, 326 and 341 read with Sections 148 and 149  of the Indian Penal Code (IPC). The case of the  prosecution was that all the accused and  deceased Peiyakaruppan @ Chinnadurai belonged  to the same village Santhapuram. Two years  prior to the occurrence, deceased Chinnadurai  had given evidence in a Court of Law against  Veerabathran-accused No.2 and in favour of  Maruthairaj-PW2 in a criminal case. In  connection with a water dispute, there was a  civil case and in that civil dispute also, the  deceased had given evidence against the accused  party. The parties were also on inimical terms  in connection with irrigation of agricultural  lands. On May 27, 1995, at about 3.30 p.m.,  PW2-Maruthairaj-complainant was standing in  front of his house and at that time, Marimuthu- accused No.1 went near the complainant and  abused him in filthy language. Deceased  Chinnadurai, father of PW2-Maruthairaj, along  with other family members, proceeded to  Somarasampet Police Station and lodged a  complaint relating to the said incident. At  about 4.30 p.m. on the same day at Tiruchy- Vayalur Road, near Ambedkar Colony Junction,  according to the prosecution story, all the  seven accused persons with common object of  committing murder of deceased Chinnadurai,  attacked him with aruval, bichuva, knife and

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other lethal weapons. In that attack,  Chinnadurai died instantaneously due to  multiple injuries. The accused also caused  injuries to complainant Maruthairaj-PW2. FIR  was lodged, being Crime No. 229 of 1995 on May  27, 1995. After usual investigation, charge was  framed against the accused persons and the  matter was committed to a Court of Sessions. 5.              The trial Court, by a judgment and  order dated December 8, 1997, convicted the  accused persons and ordered them to undergo  different sentences as mentioned in the  operative part of the judgment. Being aggrieved  by the said order, all the accused preferred  appeals. The appeals were partly allowed by the  High Court. Accused Nos. 4, 6 and 7 came to be  acquitted by the High Court extending benefit  of doubt, while accused Nos. 1, 2, 3 and 5  (appellants herein) were convicted for offences  punishable under Section 302, IPC for causing  death of Chinnadurai. Accused No.1 was also  convicted for an offence punishable under  Section 326, IPC for causing grievous hurt to  PW2-Maruthairaj. Being aggrieved by the said  order, the appellants have approached this  Court. 6.              Notice was issued on January 25, 2007.  The office was directed to place the matter for  final disposal and accordingly, the matter has  been placed before us. 7.              We have heard learned counsel for the  parties. 8.              The learned counsel for the appellants  submitted that when three accused (accused Nos.  4, 6 and 7) were acquitted by the High Court,  it committed an error of law in convicting the  remaining accused. The High Court, ought to  have appreciated that when the Court observed  that the prosecution had not come forward with  true and complete facts and a part of the story  had not been believed, it adversely affected  the genesis of the incident and it ought to  have acquitted all the accused. It was  submitted that so-called dying declaration of  PW2-Maruthairaj was rightly not treated as  dying declaration as he survived. In view of  the said fact, First Information Report (FIR)  should have been totally discarded as certain  names were sought to be added therein. The High  Court, on that basis, granted benefit of doubt  to three accused, but it went wrong in  convicting the appellants on the basis of the  said report. It was also submitted that it was  proved from the record that accused Nos.4 and 7  who were acquitted by the High Court, sustained  injuries. The said fact also goes to show that  there was suppression of fact by the  prosecution witnesses and their evidence should  not have been relied upon for convicting the  appellants. That circumstance supported the  defence version that even if the incident had  taken place, the accused had exercised right of  self defence. Finally, it was submitted that in  any case when three accused were acquitted by  the High Court, considering the case of the

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prosecution that all the seven accused  indiscriminately attacked deceased Chinnadurai  and committed his murder, the High Court could  not have convicted the appellants for an  offence punishable under Section 302, IPC. At  the most, the High Court could have convicted  them under Section 304 IPC. It was, therefore,  submitted that the appeal deserves to be  allowed by setting aside and/or modifying the  order of conviction and sentence recorded by  the High Court. 9.              The learned counsel for the  respondent-State, on the other hand, supported  the order of conviction and sentence passed by  the High Court. He urged that the trial Court  was wholly right in convicting all the accused  for various offences. It is, no doubt, true  that the High Court partly allowed the appeal  and granted benefit of doubt to three accused.  It was because of the fact that so-called dying  declaration of PW2-Maruthairaj could not be  treated as dying declaration as he survived and  there was some discrepancy in the FIR recorded  and the dying declaration of Maruthairaj.  Taking such discrepancy into account and  omission of name of accused No.6, he was  acquitted. Likewise, considering the fact that  accused Nos.4 and 7 were injured, the High  Court thought it fit to give benefit of doubt  to them also. But it cannot be ignored that  cross case filed by the accused against the  complainant side in the form of First  Information Report No.230 of 1995 was disposed  of as \021mistake of fact\022. Moreover, it was not  established that the injuries were sustained by  accused Nos.4 and 7 during the course of one  and the same incident. They were not proved.  Nor any complaint was made by those accused  when they were produced before the Magistrate.  In view of all these circumstances, it cannot  be said that the High Court was in error in  recording conviction against the appellants.  Keeping in view injuries caused by the  appellants, medical evidence and evidence of  other witnesses including PW2-Maruthairaj- complainant, who was seriously injured, PW6- Annamalai and PW7-Manoharan the High Court  convicted the appellants and no fault can be  found against such approach of the High Court.  It was, therefore, submitted that no case has  been made out by the appellants and the appeal  deserves to be dismissed. 10.             Having heard the learned counsel for  the parties, in our opinion, the appeal  deserves to be partly allowed. So far as the  incident is concerned, both the Courts have  believed the case of the prosecution. From the  substantive evidence of prosecution witnesses,  it was clearly proved that the parties were on  inimical terms. Two years before the incident,  there was a criminal case against the accused  and in the said case, Chinnadurai was one of  the witnesses for the prosecution against the  accused. There were more disputes also and  deceased Chinnadurai was favouring the

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prosecution side and was against the accused  party. It has also come in evidence and  believed by both the Courts that on May 27,  1995, there were two incidents. First incident  took place at about 3.30 p.m. when PW2- Maruthairaj was standing in front of his house  and was abused by accused No.1. Following  procedure of law, PW2-Maruthairaj and deceased  Chinnadurai, went to Police Station and lodged  a complaint against the said accused. There  was, therefore, nothing illegal in the act of  deceased and the complainant party. The accused  party, however, was very much enraged. The  accused assembled together and waited for  complainant party to come from Police Station.  They were all armed with deadly weapons and  wanted to teach a lesson to deceased  Chinnadurai and PW2-Maruthairaj. The  complainant party was not having any weapon  with them and they were unarmed. The accused  persons indiscriminately assaulted deceased  Chinnadurai and PW2-Maruthairaj. 11.             So far as medical evidence is  concerned, it clearly established that deceased  Chinnadurai sustained as many as eight injuries  and he died due to shock and hemorrhage of the  injuries received by him. It was thus a  homicidal death of the deceased.           PW5-Thirugnanam (Doctor) stated in his  substantive evidence that on May 27, 1995,  while he was on duty as Doctor attached to  Government hospital, Tiruchirapalli, at about  6.30 p.m., Maruthairaj-PW2 was brought by his  sister Saroja who had following injuries: 1.      Incised wound 8\024 length cutting the  bone underneath right forehead.

2.      Incised wound 4\024 length cutting  right scapula.

3.      Incised wound 2\024 skin deep left  fore arm. 12.             Thus, it is also clear that PW2- Maruthairaj was injured in the incident and was  one of the victims who sustained those injuries  during the course of incident. Both the Courts,  relying on the evidence of the prosecution  witnesses, and particularly PW2-Maruthairaj who  was injured witness and thus victim, convicted  the appellants. Keeping in mind discrepancy in  the First Information Report and so-called  dying declaration of PW2-Maruthairaj, the High  Court extended benefit of doubt to accused No.6  in view of absence of his name in the dying  declaration and also because of \021superficial  and minor\022 injuries said to have been sustained  by accused Nos. 4 and 7. That does not,  however, mean that appellants were not involved  in the incident or they had not attacked  deceased Chinnadurai or PW2-Maruthairaj. It,  therefore, cannot be said that the benefit  which had been given by the High Court to  accused Nos. 4, 6 and 7 should also be given to  the present appellants. We, therefore, cannot  uphold the contention of the learned counsel

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for the appellants that the appellants are also  entitled to benefit of doubt. 13.             But the learned counsel for the  appellants is right in submitting that when the  case of the prosecution was that all the seven  accused indiscriminately attacked deceased  Chinnadurai and caused his death and when the  High Court granted benefit of doubt and  acquitted three of them (Accused Nos. 4, 6 and  7), it would be appropriate if instead of  convicting the appellants herein (Accused Nos.  1, 2, 3 and 5) for an offence of murder  punishable under Section 302, IPC, they are  convicted for an offence of culpable homicide  not amounting to murder punishable under  Section 304, Part I, IPC. To that limited  extent, the appeal deserves to be allowed by  converting their conviction for an offence  under Section 302, IPC to Section 304, Part I,  IPC. Instead of ordering the appellants herein  to undergo imprisonment for life, we direct  them to undergo rigorous imprisonment for a  period of ten years. The remaining order as to  conviction and sentence imposed on the  appellant No.1 for an offence punishable under  Section 326, IPC for causing grievous injury to  PW2-Maruthairaj and also payment of fine is not  disturbed. 14.             The appeal is accordingly partly  allowed to the extent indicated above.