REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.578 OF 2001

Moorthy   …. Appellant

  Versus

State of Tamil Nadu   .... Respondent

J U D G M E N T  

Dalveer Bhandari, J.  

1. This appeal  is filed by Moorthy son of Kuppan against

the judgment  of  the High Court  of  judicature  at  Madras in

Criminal Appeal No. 377 of 1991 by which the appellant was

convicted under section 304 Part I IPC and sentenced to seven

years of imprisonment.

2. Brief facts of the case which are necessary to dispose of

this appeal are as under:-

PW1, Palaniammal and her son, Murugan, the deceased

in this case were in possession and enjoyment of a porambok

land and regarding that there was a dispute at the instance of

the accused claiming a right to enjoyment and possession to

the said property.  Accused 1 and 2 are brothers and the 3rd

accused has two young children called Senthil and Subhash.

The incident had taken place on 18.5.1988 in the evening at

about 4.30 p.m.  Even on that morning there was an incident

in which the parents of accused 1 and 2 and the wife of the 2nd

accused  sustained  injuries  which  resulted  in  a  complaint

against  the  deceased  and  others  before  the  police.   PW1,

Palaniammal (mother of the deceased) sustained a fracture in

her leg when she accidentally fell down.  She was admitted as

an  inpatient  in  the  Government  hospital  at  Salem  in  the

Female  Surgical  Ward.   At  4.45  p.m.  on  18.5.1988,  the

deceased  Murugan  had  visited  his  mother  in  the  hospital.

When he was talking to his mother, accused 1 (Rathinam) and

accused 2 (Moorthy) entered that Ward with knives.  Accused

1 stabbed  Murugan on his stomach resulting in a bleeding

injury.  Murugan, after sustaining an injury raised an alarm

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and  tried  to  escape  from  that  place  by  running  away.

However,  while  he was running, he  tumbled  over  the steps

and fell down in front of the Ward. Accused 1 and 2 chased

him  and  after  Murugan  fell  down,  accused  1  and  2  over-

powered him and repeatedly attacked on his face and hands

by  knives.   The  3rd accused  (Kuppayee)  is  stated  to  have

caught  hold  of  Murugan while  the  juvenile  accused  Senthil

and  Subhash  stated  to  have  caught  hold  of  his  legs  by

pressing them with their hands.  At that time, PW2, who is

grand-son of PW1 was there.  He had also come to the hospital

for  a  courtesy  visit.   PW1,  in  her  testimony  stated  that

accused  1  and  2  stabbed  her  son  many  a  times

simultaneously.   Doctor  after  examining  Murugan  declared

him dead.   

3. Thereafter, his body was taken to the mortuary.  PW2,

the Sub-Inspector of Police in the Police Outpost Government

Headquarters Hospital at Salem at about 5 p.m. on 18.5.1988

received  a  telephonic  message  about  the  incident  and

immediately  rushed  to  the  scene  of  occurrence.   PW12

recorded  statement  from  PW1  with  regard  to  what  had

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happened  and  exhibited  as  P1.   Thereafter  PW13,  the

Inspector of Police was informed.  PW13, after receipt of the

information proceeded  to the scene of occurrence at 6 p.m.

and reached the Female Surgical Ward.  He examined PW1.

He found the dead body in the mortuary.  PW13 found blood-

stains on the ground and also on the tar portion of the road.

PW10  is  the  Assistant  Civil  Surgeon  attached  to  the

Government hospital, Salem. He conducted post-mortem and

found the following injuries.

“1.    Lacerated 2 cm x .5 cm x.5 cm on the right side of the lower lip.

2. A stab wound 2 cm x 1 cm x 2 cms over the right side of the face at the angle of middle.

3. An incised wound 2 cm x 5 cm x 5 cms over the right side of the face 3 cm below the right eye.

4. A stab wound 3 cms x 1.5 cm x 6 cms over the right  side  of  chest  10  cms  below  the  right collar bone 6 cm medial top the nipple.

5. A stab wound 2 cm x 1 cm x 4 cms over the right side of the chest 2 cm away from injury no.4.

6. A stab wound 2 cm x 2 cm x 6 cms over the right  side  of  the  chest  3  cms  away  from midline and 1 cm below the right nipple.

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7. An incised wound 2 cms x 1 cm x .5 cm over the right side of the chest on the mid antillary line 6 cms below and away from right nipple.

8. A stab wound 4 cms x  4 cms x 4 cms over the left  side  of  the  abdomen  4  cms  above  and away from umbilicus.

9. A stab wound 4 cms x 3 cms x 5 cms at the spot of right axilla.

10. An incised wound 2 cms x  .5 cms x .5 cms over the left side of the abdomen on the mid antillary line 15 cms above the iliac crest.

11. An abrasion 6 cms x 8 cms over the right front of the left keen joint.

12. An  abrasion  6  cms  x  .5  cms  over  the  right front  of  the  neck,  6  cms  above  the suprasternal notch.

13. A stab wound 4 cms x 2 cms x 7 cms over the back of the left side of chest 32 cms above the posterior iliac spine.

14. A stab wound 4 cms x 2 cms x 4 cms over the centre of the back and below the nape of the neck.

15. A stab wound 3 cms x 2 cms x 6 cms over the centre of back 7 cms below injury no.14.

16. A stab wound 3 cms x 2 cms x 6 cms over the back of the right side of the chest 6 cms away from injury no.14.

17.   An incised wound 8 cms x 3 cms x 2 cms over the back of the right side of the chest 6 cms away from injury no.15.

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18.  Laceration  8  cms  x  4  cms  x  2  cm over  the inner side of the left elbow.

19.  Laceration 4 x 3 x 1 cm over inner side of left palm.

20. Laceration 5 cms x cms x 1 cm over the dorsal aspect of the left palm.

Heart : Chambers empty.  On opening thorax cavity 200 ml. of dark fluid blood present.

Lungs : Right –

1. Laceration 4 cms x 2 cms on the lower lobe.

2. A stab wound 3 cms x 2 cms x 2 cms on the lower lobe 2 cms below injury no.1.

3. A stab wound 2 cms x 2 cms x 3 cms on the middle lobe.

4. He found a stab wound 3 cms x 2 cms x 3 cms found on the middle lobe 1 cm below injury no.3.

Left : Laceration 2 cms x 2 cms x 1 cm on the upper lobe.  Cut section congested.

Stomach: Contained 100 gms of partially digested; cooked food particles.  Stomach was also congested.  No smell of alcohol.

4. The  doctor  was  of  the  opinion  that  the  deceased

appeared to have died of shock and haemorrhage, as a result

of the injuries sustained by him about 10 to 11 hours prior to

the  post-mortem.   The  doctor  was  of  the  opinion  that  the

injuries could have been caused with a weapon like material

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object  No.1  -  knife  and  death  must  have  occurred

instantaneously.   

5. The appellant in his statement under section 313 of the

Code  of  Criminal  Procedure  stated  that  the  deceased

attempted  to  murder  him  with  a  knife  in  the  Government

hospital  and  during  the  course  of  struggle  between  the

deceased  and  the  accused,  even  the  accused  sustained

injuries  and   according to him he was also beaten by the

deceased  and  the  brother-in-law  of  the  second  accused

stabbed the deceased in self defence.  It may be pertinent to

mention  that  the  statement  under  section  313  is  not

corroborated  by  the  medical  evidence.   The  deceased  had

received multiple injuries on the vital parts of the body which

led  to  his  death.   The  appellant  was  examined  in  the

government  hospital,  Salem  and  the  following  minor  and

superficial injuries were found on him:

“1. Multiple  linear  abreasions  of  varying  sizes seen   over the chest wall.

2. A lacerated injury 0.5 cm x 0.5 cm seen over the right little finger.

3. A lacerated injury 0.5 cm x 0.5. cm seen over the tip of the right thumb.

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4. Two  abrasions  with  dull  black  colour seen over the left thumb near the root of the right terminal phalanx.

5. Two abrasions dull black in colour seen over  the  right  side  of  the  front  of  neck and on the left side of the front of neck.”

6. PW2 is the grand-son of PW1. He was also examined in

the case.  In his statement he stated as under:-

“PW1  Palaniammal  is  my  grand  mother  and  my mother’s  mother.   The  deceased  Murugan  is  my maternal  uncle.   On 28.5.1988,  my grand-mother PW1  was  taking  treatment  for  her  injury  in  the Head Quarters Hospital at Salem. On that day, at 4.45  p.m.,  I  went  to  Salem for  seeing  my grand- mother PW1 Palaniammal.  When I was going into the  ward  where  my  grand-mother  was  lying,  my maternal  uncle  Murugan  came  running  from  the ward with a stab injury on his stomach and crying “Ayo, Appah, Amma”.  At that time the first accused Rathinam and the second accused Moorthy, each of them having a knife in their hands, ran chasing my maternal  uncle  Murugan.   The  3rd accused Kuppayee  and  the  two  juvenile  accused  also  ran behind them.

On seeing the accused coming with knife  in their hands,  I  got  out  of  the  way.   My uncle  who was chased by the accused fell down due to tripping on the  steps.   My uncle  Murugan fell  down  on face downwards.   The  first  accused  Rathinam and the second  accused  Moorthy  stabbed  on  his  back repeatedly  and  simultaneously.   My  uncle  rolled turning his face upwards.  At that time a stab fell on his  hand.   I  did  not  notice  correctly  who had stabbed.  Both the accused had stabbed my uncle

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simultaneously  on  his  chest,  breast  and  the stomach.”

7. PW3 is the trained nurse on duty.  PW4 is admitted as

inpatient in Male Surgical Ward.  PW5 is the Sub-Inspector.   

8. The Trial  Court  vide judgment dated 30th March,  1990

acquitted the accused.  The respondent-State of Tamil Nadu

filed an appeal against the said judgment of acquittal before

the High Court of Madras.  The High Court re-examined and

re-evaluated  the  entire  evidence  on  record  and  came  to  a

definite  conclusion  that  acquittal  of  the  appellant  is

unsustainable and because according to the Trial  Court the

material  available  on  record  established  the  guilt  of  the

appellant  particularly  when  the  appellant  in  a  statement

under  section  313  Cr.P.C.  admitted  his  involvement  in  the

occurrence which took place at 4.45 p.m. on 18.5.1988 in the

hospital.  The High Court had observed that even according to

the case of the appellant he caused those injuries in his self-

defence.  The appellant has stated before the High Court that

he cannot be convicted solely on the basis of the stand taken

by  him when  he  was  questioned  under  section  313  of  the

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Code  of  Criminal  Procedure.  The  High  Court  has  placed

reliance  on the  judgment  of  this  court  in  State  of  U.P. v.

Lakhmi 1998 SCC 4 SCC 336.  The relevant portion of the

judgment  which was  relied  on  by  the  High Court  reads  as

under:-

“It  cannot  be  said  that  statement  of  an  accused recorded under  section 313 of  the Code  does  not deserve any value or utility if it contains inculpatory admissions.   The  need  of  law  for  examining  the accused  with  reference  to  incriminating circumstances  appearing  against  him  in prosecution  evidence  is  not  for  observance  of  a ritual in a trial, nor is it a mere formality. It has a salutary  purpose.  It  enables  the  Court  to  be apprised  of  what  the  indicted  person  has  to  say about the circumstances pitted against him by the prosecution.  Answers  to  the  questions  may sometimes be flat denial or outright repudiation of those  circumstances.  In  certain  cases  accused would  offer  some  explanations  to  incriminating circumstances. In very rare instances accused may even  admit  or  own  incriminating  circumstances adduced  against  him,  perhaps  for  the  purpose  of adopting  legally  recognized  defences.  In  all  such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate  and evaluate the evidence in the case. If an accused admits any incriminating circumstance  appearing  in  evidence  against  him there  is no warrant that those admissions should altogether  be  ignored  merely  on  the  ground  that such  admissions  were  advanced  as  a  defence strategy.”

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9. Therefore, the statement of the appellant under section

313 cannot altogether be ignored. DW1 clearly stated in his

testimony that 2nd accused told him that he sustained injuries

when  he  was  involved  in  the  incident  at  4.45  p.m.  on

18.5.1988  in  the  Government  hospital  at  Salem.  The  High

Court on the basis of the evidence on record reached at the

definite  conclusion  that  the  medical  evidence  clearly

establishes that it is the 2nd accused who caused number of

injuries on the deceased which proved fatal.  In this view of

the matter, according to the High Court, the prosecution has

clearly established the involvement of the 2nd accused with the

overt  act  attributed  against  him  vis-a-vis  the  deceased.

According to the High Court, the Trial Court seriously erred in

acquitting  the  appellant  on  the  basis  of  overwhelming

evidence  on  record.   According  to  the  High  Court,  the

appellant had exceeded his right of private defence, therefore

the  appellant  is  liable  to  be  convicted  for  an offence  under

section  304  Part  I  IPC  for  exceeding  the  right  of  private

defence. The High Court in this case while setting aside the

Trial  Court  judgment  convicted  the  appellant  under  section

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304 Part I IPC and sentenced him to seven years of rigorous

imprisonment.   

10. We have heard learned counsel for the parties at length

and perused the judgments and depositions on record.  The

deceased had received 20 incised injuries caused on various

parts of the body in general and on vital parts of the body in

particular.  The deceased was killed mercilessly by inflicting

twenty incised injuries  and mostly  on the vital  parts of  the

body.

11. Even if we accept the version of the High Court that the

accused  had  the  right  of  private  defence,  in  the  facts  and

circumstances of the case, but he had exceeded his right so he

was convicted under section 304 Part I IPC.

12. On  examination  of  the  injuries  on  the  accused  it  is

clearly  borne  out  that  those  injuries  are  very  minor  and

superficial in nature whereas twenty incised injuries inflicted

on the deceased were of very serious nature and character.

The  Sessions  Court  has  gravely  erred  in  acquitting  the

accused on the face of the testimony of the witnesses in the

case.  We have to examine the evidence in proper perspective –

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why  should  ordinarily  PW1,  mother  of  the  deceased  would

falsely  implicate  the  accused  and let  off  the  real  assailant?

Similarly, why PW2, nephew of the deceased would save the

real assailant and falsely name the accused?.  The High Court

in the impugned judgment while reversing the judgment of the

Sessions Court convicted the accused under section 304 Part I

IPC.

13. We  have  not  examined  whether  in  the  facts  and

circumstances, the High Court was justified in converting the

sentence  from  section  302  IPC  to  section  304  Part  I  IPC

because there is no appeal by the State.

14. The appellant must be convicted at least under section

304 Part I IPC.  No interference is called for. The appeal being

devoid of any merit is accordingly dismissed.

…….……………………..J.  (Dalveer Bhandari)

…….……………………..J.   (Harjit Singh Bedi)

New Delhi; November 19. 2008

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