REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 38 OF 2007

Jagebar Ali @ Settu ....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  convicting  A-1,  the  present  appellant  for  offence

punishable under Section 302 of the Indian Penal Code, 1860 (in short the

‘IPC’). A-2 to A-7  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 undergo RI for two years. A-1 to A-7 were acquitted of the

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

charges levelled against them. Fifteen persons faced trial, out of them 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

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  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

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

occurrence under one Bhaskar.

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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 went near 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 restrained

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 the  Thangaraju

(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 Thangaraj 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

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

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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 the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989.  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 confession 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.  

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

called eye witnesses PWs 1 to 4. Particularly the emphasis was made on the

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evidence of  PW-1 to  show that there could not have 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 304 Part II

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 injury 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.

3. Learned  counsel  for  the  appellant  has  submitted  that  while  others

were convicted for offence punishable under Section 304 Part  II,  IPC he

alone has been convicted under Section 302 IPC.  According to him, there is

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a parity between the co-accused persons. The High Court has indicated the

reasons  for  which  the  appellant’s  case  was  treated  differently.  The  trial

Court and the High Court have noted that the appellant had given a fatal

blow on the neck with aruval and the injury caused by such act proved fatal.

Therefore, there is no substance in the plea of the appellant that he stood on

similar footing as that of co-accused persons.  

4. In view of the findings recorded by the trial Court and the High Court

we find no merit in this appeal which is accordingly dismissed.  

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

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

New Delhi, January 20, 2009

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