REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1249 OF 2006

Baskar @ Kannan ....Appellant

Versus

State of Tamil Nadu ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Challenge in this appeal is to the judgment of a Division Bench of the

Madras High Court upholding the conviction of the appellant for offence

punishable under Section 304 Part  II of the Indian Penal  Code,  1860 (in

short  the  ‘IPC’).  The  accused  persons  are  described  as  A-1,  A-2  etc.  as

described by the Trial Court. A-1 by  the impugned judgment of the High

Court was held guilty of offence punishable under Section 302 IPC, while

A-2 to A-7 including the present appellant  were found guilty under Section

304 Part II, IPC and each was sentenced to undergo rigorous imprisonment

for five years. A-3 to A-7 were found guilty of offence under Section 324

IPC and each was sentenced to under RI for two years. A-1 to A-7 were

acquitted  of  the  other  charges  leveled  against  them. A-9  and A-10 were

acquitted of the charges levelled against them. Fifteen persons faced trial,

out of whom the trial Court acquitted A-8, A-11 to A-15. By the impugned

judgment, as noted above, the High Court directed acquittal of A-9 and A-

10.

2. The prosecution version as unfolded during trial is as follows:

PW-1 is the native  of Thugli Periyar Nagar. PWs 2, 3, 4 5 and 6 all

belonged to the same place. PWs 2, 3 and 4 were originally employed in

Ambika Sugar Mills, Kottur. P.Ws. 6 and 7 are also the residents of the said

place and all  were carrying on agricultural operations. P.W.8 belonged to

kealathur village, where he was serving as village menial. P.W.9 belonged

to Keezhasuriya Moolai village, where he was serving as village assistant

community. A-1 to A-11 and A-13 to A-15 belong to Hindu Padayachi out

of whom, A-1 and A-2, though belonged to Hinduism originally, switched

over to Muslim faith. A-12 belonged to another community. P.Ws. 1 to 4

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belonged  to  scheduled  caste  and  they  were  all  employed  at  the  time of

occurrence under one Bhaskar.

On 26.3.2001 at about 5.00 p.m., after finishing work, P.Ws. 1 to 4

came out of the sugar factory and went to a nearby tea stall for taking tea. At

that  time,  A-1 was plying auto on the road.  On seeing  sugarcane on the

road, P.Ws. 1 to 4 were able to proceed on the middle of the road. When A-

1 came nearby he uttered "you add four more persons and lie on the road".

In reply, P.W.1 told him "on hearing the horn of the Auto, we gave way and

even then, why are you scolding". There arose a quarrel. In that, A-1 took

casurine stick and tried to attack P.W.1. The other witnesses, namely P.Ws.

2  to  4  held  the  accused  and stopped  him from attacking.  This  was  also

witnessed  by  Thangeraj  (hereinafter  referred  to  as  deceased),  who  was

taking tea in a nearby tea stall. He suddenly intervened and pacified them.

A-1 turned the Auto and took the same to Keezhasuriyamoolai village.

P.Ws. 1 to 4 went to Muniyendi Vilas for taking tea.  Forty five minutes

later, at about 6.00 p.m., when the witnesses along with Thangaraju were at

the  place  of  occurrence,  A-l,  A-2,  A-4  to  A-6  armed  with  aruvals,  A-3

armed with an iron road and A-7 armed with a knife and the other accused

armed with casurina sticks, came there. The deceased Thangaraju tried to

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pacify them. A-1 cut the deceased on the left side of the neck. Again A-1 cut

the deceased below the left ear. A-4 cut him on the left side of the hip. A2

cut him with aruval on the left shoulder. A-5 cut the deceased on the waist.

A-7 stabbed him with  the knife  on the  left  armpit  and the deceased  fell

down.  A-3 beat PW-1 on the head with the iron rod.  A-4 cut P.W.1 on the

left waist. The rest of the accused surrounded P.W.1 and cut P.W.1 on the

right arm, left shoulder, right thigh and on the back respectively and they

fled away from the place of occurrence.

One Mohan took P.W.1 to the Government Hospital, Kumbakonam,

where he was admitted by P.W.10, the Doctor, at about 7.00 p.m. He issued

Ex.P.11, the wound certificate.  A communication was received by P.W.

13,  the Head Constable, attached to Kumbakonam East Police Station at

19.30 hours, who in turn informed the same to Penthenellur Police Station,

within whose jurisdiction the occurrence has taken place. On receipt of the

intimation on 26.3.2001 at 1930 hours, P.W.16, the Sub Inspector of Police

proceeded to the Government Hospital, Kumbakonam at 2030 hours. He

recorded  the  statement  of  P.W.1,  which  was  marked  as  Ex.P.1,  on  the

strength of which a case came to be registered in Crime No. 72 of 2001

under  Sections  147,  148,  324,  307 and 302  IPC and Section  3(2)(v)  of

SC/ST Act.  Ext. P17 the FIR was dispatched to the Court.  

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P.W.19, the Deputy Superintendent of Police, on receipt of the copy

of the FIR on 26.03.2001 at about 11.00 p.m., proceeded to the place of

occurrence and made an inspection in the presence of two witnesses.  He

prepared Ex.P.2, the observation mahazar and Ex.P.35, the rough sketch. He

conducted inquest on the dead body of the deceased in the presence of the

witnesses  and  panchayatdars  and  prepared  Ex.P.35,  the  inquest  report.

Following the same, the dead body was sent to the Government Hospital,

Thiruvidaimarudur for the purpose of post-mortem.  

The   autopsy of the dead body was conducted. During investigation

A-5 gave confessional statement  voluntarily and the same was recorded in

the presence of witnesses. Following the same A-5 produced five aruvals,

one iron rod  and one knife in the presence of witnesses. After completion

of investigation, charge sheet was filed.  Since the accused persons pleaded

innocence  trial  was  held.  Prosecution  examined  20  witnesses.  As  noted

above,  the  trial  Court  found  the  appellants  to  be  guilty  and  awarded

punishments.  

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Before the High Court the primary stand related to acceptability of so

called  eye  witnesses  PWs 1  to  4,  particular  emphasis  was  made  on  the

evidence of  PW-1 to  show that there could not have been a common object

to murder the deceased or attempt  to murder  PW-1. It was also submitted

that it is highly unbelievable that twenty persons were involved in such an

attempt. It was, therefore, highlighted that in a group clash PWs 1 to 4 could

not  identify  the  assailants  properly.   The  High  Court  did  not  find  any

substance in the stand taken by the appellant. The High Court did not accept

the stand of the prosecution regarding applicability of Section 302 read with

Section 149 IPC. It was held that in respect of the respective acts committed

by each one of them the matter is required to be considered. From the post

mortem certificate it  was noticed that  the first  injury was caused by A-1

with aruval on the neck and the corresponding injuries caused the death. At

the same time, A-2, A-4, A-5 and A-6 were armed with aruval,  A-7 with

knife  and  A-3  with  iron  rod   and  they  have  attacked  the  deceased  and

contributed corresponding injuries. Therefore,  it was held  that A-1  had to

be convicted in terms of Section 302 IPC. So far as others are concerned the

acts attracted Section 304 Part II IPC.

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3. In support of the appeal, learned counsel for the appellant submitted

that the High Court has erred in discarding the stand of the appellants before

it.  So far as the present appellant is concerned there was no specific role

attributed  to  him.  Therefore,  his   conviction  as  maintained  by the  High

Court cannot be sustained.

4. Learned counsel for the respondent-State on the other hand submitted

that this is a case where clearly Section 302 IPC read with Section 149 was

applicable. He however conceded that no appeal has been filed by the State

questioning the judgment of the High Court.  

5. It is to be noted that  PW-1 was not only an eye witness  but also an

injured witness.  Merely because PWs 1 to 4 were related to the deceased

that cannot be a ground to cast a doubt on the authenticity of their evidence.

What  was  required  was  the  closer  scrutiny  of  the  evidence.  PW-1  has

narrated the entire incident in Ext.P-1 which was lodged immediately while

he was admitted in the Government Hospital for treatment.  In the Ext.P-1

PW-1 has categorically stated about the presence of A-1 to A-7. He had also

stated  that  A-1, A-2,  A-3 A-4,  A-5,  and A-6,  the present  appellant  were

armed with aruvals. He had also given a detailed description of the overt

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acts  attributable  to  each  one  of  them,  and  as  to  how they  attacked  the

deceased. His evidence in Court is to similar effect . The evidence of PWs 2

to 4 is also in similar lines.  

6. The High Court noted that after there was a quarrel A-1 went to his

village and brought all the accused persons with him. On the facts of the

case the High Court noted that there was absence of common object. What

was to be expected was an assault. Accordingly, it was held that A-2 to A-7

were guilty of offence punishable under Section 304 Part II, IPC. We find

that  the  trial  Court  and  the  High Court  have  rightly found the appellant

guilty. The reasoning given by the High Court to find the appellant guilty

does  not  suffer  from any infirmity.   The  appeal  is  without  merit  and  is

dismissed accordingly.     

      ...…………................................J.       (Dr. ARIJIT PASAYAT)              

…..................................................J.               (Dr. MUKUNDAKAM SHARMA)  

New Delhi, January 206, 2009

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