IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   76   OF 2008 (Arising out of SLP (Crl.) No. 863 of 2007)

Benjamin       …..  Appellant

Versus

State Represented by Inspector of Police    ….  Respondent   

JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. This  appeal  is  directed against  the judgment and order dated

18th January, 2006 passed by a Division Bench of the Madras High

Court in Criminal Appeal No.142 of 1997 whereby and whereunder

the appeal filed by the appellant against an order of conviction dated

30th January, 1997 passed by the Principal Sessions Judge, Dindigul

Anna District, was dismissed.  

3. Appellant with Jesu Raj and Arokiyam were proceeded against

for commission of an offence under Section 302 of the Indian Penal

Code.  The first and second accused were charged for commission of

an offence punishable under Section 302 of the Indian Penal  Code

whereas the third accused was charged for commission of an offence

under  Section  302 of  the  Indian Penal  Code read  with  Section  34

thereof.  

4. Enmity between the parties is admitted.  There were instances

to show that the accused had been causing various kinds of mischief.

The  incident  in  question  occurred  on  26th November,  1994.   Two

years prior thereto, accused Nos. 1 and 3 assaulted the deceased and

PW-4,  Viyakula  Mary.   Four  months  thereafter,  the  appellant

(accused No.1) is said to have caused damage to the pipeline of the

water of the house of the deceased.  A few months before the incident

in question, allegedly the haystack of the deceased was put on fire.

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Two  weeks  prior  to  the  incident  again,  the  deceased  was

assaulted resulting in initiation of a criminal proceeding against the

accused.   

5. On 26th November, 1994 at about 9.00 p.m. while the deceased

and the informant -  Kolandaisamy (PW-1) were proceeding towards

their house from Nilakkottai Market on their bicycles, somebody had

flashed torch light on the deceased.  Deceased questioned thereabout.

At  that  time  PW-1  also  flashed  light  from his  torch  towards  the

opposite  direction  and  saw the  appellant.   Appellant  assaulted  the

deceased with a wood log which was marked as M.O.1. He saw the

accused No.3 catching hold of the deceased.  He was threatened with

dire consequences, if he intervened, by the accused No.2 with a knife.

The deceased fell down but still was repeatedly assaulted.  PW-1 ran

from the spot.  He was chased.  He allegedly hid himself in a bush.     

6. PW-1 met PW-2 Saveriar and informed him about the incident

that had taken place.  They rushed to their village.  They came back to

the scene of occurrence and found that the deceased had expired.

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7. PW-1 went  to Nilakottai  police  station.   A First  Information

Report was lodged at about 1.00 A.M. on 27th November, 1994.  The

Investigating  officer  reached the place  of  occurrence at  about  2.00

A.M.  He recovered blood stained earth and a blue shawl.  Inquest of

the dead body was conducted between 3.00 a.m. and 5.00 a.m.  He

had also examined some witnesses being PWs. 1, 2, 5 and 6.  The

body was sent for post-mortem examination.  Autopsy was conduced

at  about  11.15  a.m. on  27th November,  1994.   The  following  anti

mortem injuries were found on the person of the deceased :-

“1. On the back side of the head a bruise of the size 3 cm x 2 cm was found.

2. on  the  back of  the  left  side of  the head a bruise of size 3 cm x 2 cm was found.

3. On the upper portion of the head a swelling of the size 3 cm x 3 cm was found.

4. On the front side of the head a swelling of size 3 cm x 3 cm was found.

5. On the right side of the eye brow a bruise of size 2 cm x 1 cm was found.

6. Below the right eye a bruise of size 2 cm x 2 cm was found.  Right eye was closed.  Outside the right was totally blackened.

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7. a  swelling  of  the  size  6  cm x  4  cm was found on the right cheek.”

8. The learned Sessions Judge relying on or on the basis of the

material  brought  on  record  accepted  the  deposition  of  PW-1,

Kolandaisamy.  All the other accused were held guilty of the charges

leveled against them.  On an appeal preferred by the accused before

the High Court, it while upholding the conviction and sentence of the

appellant herein, it recorded a judgment of acquittal so far as accused

Nos. 2 and 3 are concerned.  It was opined that accused No.2 being

father in law of he appellant, might not have any motive to cause the

murder of the deceased.  Besides, no incised injury has been found on

the deceased.  As regards accused No.3, it was held that there was no

cogent material to connect him with the crime.    

9. Mr.  T.  Raja,  learned  counsel  appearing  on  behalf  of  the

appellant in support of the appeal, inter alia would submit :-

1) That  the  High  Court  committed  a  serious  error  in

drawing  presumption  on  the  basis  of  the  appellant’s

conduct, to hold that he had the requisite intention to kill

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the  deceased.   Such  a  presumption,  learned  counsel

would contend, is not available in law.    

2) The  cycle  and  torch  used  by  PW-1  having  not  been

seized,  which  were  material  for  the  purpose  of

corroborating  his  statement,  the  impugned judgment  is

liable to be set aside.    

3) If the articles which PW-1 had bought, could be seized,

there was absolutely no reason as to why the cycle and

the torch used by PW-1 could not have also been seized.  

10. Mr. V. Kanakaraj, learned senior counsel appearing on behalf

of the State, on the other hand, supported the impugned judgment.

11. PW-1  and  PW-4  have  proved  enmity  between  the  parties.

Veracity of  statements  of  the  said  witnesses  to  that  effect  was not

tested  in  the  cross-examination.   The  fact  that  an  incident  had

occurred a few days prior to the incident in question is also not in

dispute.

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12. The First Information Report was received by the Investigating

officer,  PW-10,  at  1.00  a.m.  on  27th November,  1994.   He

immediately  came to  the  site.   The  distance  between  the  place  of

occurrence  and  Nilakkottai  Police  Station  is  about  3  kms.   The

Investigating Officer reached the place of occurrence at about 2.00

a.m.   Thus,  the  investigation  commenced  immediately  after  the

lodging of the First  Information Report.   It  is not  a case where an

undue delay in lodging the First Information Report took place.

13. Homicidal death of Maria Michel stands undisputed.  It is also

evident from the post-mortem examination report that the injuries on

the deceased could have been caused by a log of wood which was

marked as M.O.1.  The deceased suffered atleast three fractures on his

head.  

14. PW-1, although may be a son of the deceased, but it is difficult

to disbelieve his statement that he had witnessed the occurrence.   

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15. We have been taken through the entirety of his deposition and

do not find any reason to differ with the views of the learned Sessions

Judge as also the High Court.  The cycle and the torch used by PW-1

had no connection with the commission of the offence.  If they had

not been seized by the police, for one reason or the other, the same by

itself would not be a ground to disbelieve the statement of PW-1.  

16. The following finding of the High Court had been commented

upon by Mr. Raja.

“From the conduct of the first accused, it can be presumed that the first accused had the intention to kill the deceased and therefore the prosecution has proved  its  case  in  so  far  as  the  first  accused  is concerned.”

17. The  High  Court  while  mentioning  about  the  conduct  of  the

appellant,  meant  overt  acts  attributed  on  the  part  of  the  appellant.

The High Court merely opined that in view of the number of injuries

inflicted upon the deceased, he had an intention to kill him.  Intention

to  kill  a  person  must  be  determined  having  regard  to  the  factual

scenario involved in each case.  The doctor PW-3,  K. Subramaniam,

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has clearly stated that the injuries suffered by the deceased could have

been  caused  by  the  log  of  wood,  which  was  marked  as  M.O.1.

Medical evidence, thus, corroborated the ocular evidence.  

18. Keeping  in  view  the  number  of  injuries  inflicted  on  the

deceased as  also the nature thereof and furthermore in view of the

opinion  expressed  by  the  doctor,  there  cannot  be  any  doubt

whatsoever that the appellant had the intention to kill the deceased.

19. For the reasons abovementioned we do not find any merit in

this appeal which is accordingly dismissed.  

 ……………………………J.

                     ( S.B. SINHA )

 ……………………………J.

                        ( HARJIT SINGH BEDI )

New Delhi January 11, 2008

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