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PETITIONER: PARUSURAMAN @ VELLADURAI AND OTHERS

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT11/09/1991

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) PUNCHHI, M.M.

CITATION:  1993 AIR  141            1991 SCR  Supl. (1)   1  1992 SCC  Supl.  (1) 429 JT 1991 (4)   133  1991 SCALE  (2)534

ACT:     Penal  Code, 1860--Sections 304 Part I,  34   Conviction under   Nature  of injuries  caused--Intention  of  accused- Offence  committed  to be u/ss. 325,  34--Sentence  modified Fine  collected  from  accused  to  be  paid  to  deceased’s father/mother/sister.

HEADNOTE:     Three charges were framed against the appellants - A1 to A7. A7 was charged under Section 302 read with Section  109, I.P.C. for instigating A1 to 6 to commit the murder Al,  A2, A4,  A5  and A3, A6 were tried under Sections  147  and  148 IP.C.,  respectively and the third charge under section  302 read  with Section 149, I.P.C. was against A1 to A6  on  the allegations  that  Al, A2, A4 and A5 armed with  sticks,  A3 armed  with/ aruval (bill-hook) and A6 armed with  vel-stick (spear-stick),  attacked the deceased at about 830  A.M.  on January  28,  1977 and caused him multiple  injuries,  as  a result of which he died on the same day..     All  the accused persons were acquitted by  the  learned Trial  Judge, against which when appeal was filed, the  High Court maintained the acquittal of A4 to A7 but reversed  the findings  in  respect of A1 to A3 and were  convicted  under Section  304  Part I read with Section 34, I.P.C.  and  were sentenced  to undergo rigorous imprisonment for five  years, against that, this appeal was filed by the appellants --  A1 to A3 via Special Leave Petition. Disposing the appeal, by modifying the sentence, this Court,     HELD:  1. Thirteen external injuries were found  on  the dead  body  of the deceased. Out of these 11 were  on  lower legs and arms. The intention of the appellants was to  cause grievous  hurt  and as such the offence  committed  by  them comes  within the parameters of Section 325, I.P.C.  Keeping in view the nature of injuries on the person of the deceased and  the  facts and circumstances of this case  the  offence committed  by  the appellants comes within the  mischief  of Section  325 read with 34, I.P.C. and convicted  them  under Section  325, I.P.C. read with Section 34,  I.P.C.  imposing the sentence of imprisonment already undergone by them,  and the  sentence  of Rs. 7,000 each as fine,  to  be  deposited before the Trial Court, within four months, which be paid to

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the father/mother of deceased. 2 In  the  event of non payment of fine the  appellants  shall undergo rigorous imprisonment for five years. [3A, 3D-F]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 393 of 1979.     From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and  Crl. Revision Case No. 833 of 1977. U.R. Lalit and K.R. Choudhary for the Appellants. K.V. Venkataraman for the Respondent. The Judgment of the Court was delivered by     KULDIP  SINGH, J. Parusuraman @ Velladurai,  Karuppaiah, Nagasundaram and four others (hereinafter referred to as  A1 to  A7)  were  tried for the murder of  one  Jawahar.  Three charges  were  framed  against them. A7  was  charged  under Section 302 read with Section 109, I.P.C. for instigating A1 to  6  to commit the murder. The second  charge  related  to rioting  wherein A1, A2, A4, A5 and A3, A6 were tried  under Sections  147 and 148 I.P.C. respectively. The third  charge under Section 302 read with Section 149, I.P.C. was  against Al  to  A6 on the allegations that Al, A2, A4 and  A5  armed with  sticks, A3 armed with aruval (bill-hook) and A6  armed with vel-stick (spear-stick), attacked Jawahar at about 8.30 A.M.  on January 2.8, 1977 and caused him multiple  injuries as  a result of which he died on the same day. All  the  ac- cused persons were acquitted by the learned Trial Judge.  On appeal the High Court maintained the acquittal of   A4 to A7 but reversed the findings in respect. of A1to A3.  Believing the    prosecution  evidence,  the High Court  came  to  the conclusion that the   commission of offence by A1 to A3  was proved. They were convicted under   Section 304 Part I  read with Section 34, I.P.C. and were sentenced to undergo rigor- ous imprisonment for five years. This appeal by A1 to A3 via special  leave petition is against the judgment of the  High Court. While granting special leave to appeal this Court  by its  order dated August 10, 1979 allowed bail to the  appel- lants.     We have heard learned counsel for the parties. We  agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt. We are, however, of the view  that keeping in view the nature of injuries on the person of  the deceased and the facts and circumstances of this case the 3 offence committed by the appellants come within the mischief of  Section 325 read with 34, I.P.C. Thirteen  external  in- juries were found on the dead body of Jawahar. Out of  those 11 were on lower legs and arms. The High Court while consid- ering the nature of offence observed as under:-               "These accused and their associates who be set               themselves on Jawahar could never have intend-               ed to cause the death of Jawahar for, if  such               was their intention, they could have certainly               killed him especially after carrying him  into               the  cholam  field  and left  him  dead  there               instead of merely causing simple and  grievous               injuries  to him. Even with reference  to  the               aspect whether the accused persons could have,               intended  to cause such injuries as  would  be               sufficient, in the ordinary course of  nature,

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             to  cause  death, we are not able  to  give  a               finding  in  favour of the  prosecution.  Even               according to Jawahar’s statement (Exhibit P-6)               all  that first accused had remarked was  that               the  attack on him was in retaliation for  the               injuries  Jawahar  had  caused  on  the  first               accused a few weeks earlier."     Agreeing  with the above observations of the High  Court we  are of the opinion that the intention of the  appellants was to cause grievous hurt and as such the offence committed by  them comes within the parameters of Section 325,  I.P.C. We, therefore, set aside the conviction and sentence of  the appellants  under Section 304 Part I, I.P.C. read with  Sec- tion 34, I.P.C. and instead convict them under Section  325, I.P.C.  read with Section 34, I.P.C. We impose the  sentence of imprisonment already undergone by the appellants. We also impose the sentence of Rs. 7,000 each as fine on the  appel- lants.  The appellants shall deposit Rs. 7,000  each  before the Trial Court within four months from today. In the  event of non payment of fine the appellants shall undergo rigorous imprisonment  for five years. The amount of Rs. 21,000  rea- lised   as  fine  from  the  appellants  be  paid   to   the father/mother  of deceased Jawahar. In the event of none  of them  surviving the amount shall be paid to Indra sister  of deceased  Jawahar.  The appeal is disposed of in  the  above terms. V.P.R                                Appeal disposed of. 4