http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15  

PETITIONER: NADODI JAYARAMAN ETC.

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT28/04/1992

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) SAHAI, R.M. (J)

CITATION:  1992 SCR  (2) 794        1992 SCC  Supl.  (3) 161  JT 1992 (3)   222        1992 SCALE  (1)969

ACT: Indian  Penal Code, 1860 : Sections 302/120-B, 302/34 &  304 Part II:      Murder-Trade  Union  rivalry-Attack  by  a  number   of accused  with iron rods and iron  pipes-Trial-Conviction  of some  accused and acquittal of others-Reliance on  testimony of  witnesses vis-a-vis convicted accused and  rejection  of their testimony vis-a-vis acquitted  accused-Legality  of-Held where  injuries  are  caused by a number  of  persons  Court should ascertain the common intention of convicted  accused- Nature  of  injuries  and weapons  used  held  relevant  for determining  the  common  intention-Conviction  of   accused altered from Sections 302/34 to one under 304 Part II.      Maxim-Falsus in uno falsus in omnibus-Applicability of.      Penology-Conviction-Accused  suffered imprisonment  for more than five years and on bail for more than a decade - No criminal  activity  by accused during this  period-Held  not desirable  to  send  him back to  jail-sentence  reduced  to imprisonment already undergone.      Constitution of India, 1950: Article 136:      Appeal   by  Special  Leave-Reappraisal  of   evidence- Concurrent  findings  of facts by  Court  below-Interference with.

HEADNOTE:      The appellants, A-2 and A-3, along with five co-accused were  prosecuted under Section 120-B read with  Section  320 IPC  as well as under Section 302 read with Section 34  IPC. Besides  the  co-accused were also  prosecuted  for  various other  offences.  It was alleged that  the  accused  persons conspired  together to murder PC, Ex-Vice President  of  the Peravai  Workers’  Union,  and  in  pursuance  of  the  same committed  his  murder. According to  the  prosecution  case there  was  trade  union rivalry between the  group  of  the deceased and the group of accused persons. The eye witnesses deposed  that on the date of occurrence A-2 was  questioning PW-22  as to why he had distributed pamphlets for a  meeting to be                                                        795 conducted  under  the  auspices of PC and at  that  time  PC arrived  there.  Thereafter, A-2 to A-7 assaulted  him  with iron rods and iron pipes. Prosecution witnesses who tried to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15  

intervene  also  reveived injuries at the  hands of  accused persons.  Further,  when  PC tried  to  escape  the  accused persons  chased  him and exhorted to do away  with  him  and thereupon  they  again assaulted him  indiscriminately  with iron  rods  as a result of which he died.  The  Post  Mortem report  showed  that the deceased suffered 32  injuries  and that  the head injury was sufficient to cause death  in  the ordinary course of nature.      The  Trial  Court did not accept the testimony  of  the prosecution  witnesses  in toto. It rejected the  theory  of conspiracy and accordingly  aquitted all the accused persons including   the  appellants  of  the  charges  of   criminal conspiracy  under Section 120-B read with Section  302  IPC. However, relying upon the testimony of PW 19, 21, 22, 25, 26 and 27, it  convicted both the appellants under Section  302 read  with  Section  34 IPC and sentenced  them  to  undergo imprisonment for life holding that the deceased succumbed to the injuries caused by all the accused persons generally and by  A-2  and A-3 in particular. All the other  accused  were acquitted of all other charges framed against them.      On appeal, the Division Bench of the High Court  upheld the conviction and sentence of the appellants. In appeals to this Court it was contended on behalf of the appellants  (1) that  with the acquittal of co-accused of all  the  charges, the appellant’s conviction also became vulnerable and  since the  prosecution  witnesses were disbelieved  qua  coaccused even with regard to the assault on deceased, they could  not be  relied  upon to convict the appellants; (2)  Though  the deceased suffered  multiple injuries but only one injury had proved  fatal according to the medical opinion and since  it was  not  certain  that  the blow given  by  either  of  the appellant  was  by itself fatal or who out of  the  two  had caused  the fatal blow or that the same was caused with  the intention of causing death, the appellants’ conviction under Section 302/34 IPC was not warranted; and (3) the nature  of injuries indicated that the intention of the appellants  was only to give beating to the deceased and they could be  held guilty of an offence under Section 325/34 IPC only.      Allowing the Appeals, this Court,      HELD:  1.  This Court, in an appeal by  special  leave, when   the  two  courts  below  have  concurred   in   their conclusions  does not ordinarily                                                        796 reassess  the  evidence. The conclusion with regard  to  the assault on the deceased by the appellants as recorded by the learned Sessions Judge and confirmed by the learned Division Bench  is based on proper appraisal of the evidence  and  is sound. [808-F, H, 809-A]      2. The Maxim falsus in uno falsus in omnibus cannot  be mechanically applied and the mere fact that the evidence  of some  of  the  prosecution witnesses was  found  unsafe  for convicting  the  co-accused,  is by  itself  no  ground  for rejecting  the whole body of their testimony. It  only  puts the  court  on  its  guard  to  carefully  scrutinise  their evidence. [809-C]      3. In cases, where large number of persons are involved and in the commotion injuries are caused to the  prosecution witnesses  and others, it becomes the duty of the  court  to determine the common intention which could be attributed  to those  accused who stand convicted, where some of their  co- accused  stand acquitted and the State chooses not  to  file any appeal against their acquittal. With a view to determine the common intention, the nature of injuries, the background of the incident and the nature of the weapons used to  cause the  injuries  besides  other factors  are  required  to  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15  

properly considered and appreciated. [809-H,810-A]      4.  If  common  intention  to  cause  death  had   been established in the case the prosecution would not have  been required to prove which of the injuries was caused by  which accused  to sustain the conviction of the accused  with  the aid  of Section 34 IPC, but in a case like this, where  five of  the co-accused stand acquitted and the common  intention to cause death is not established beyond a reasonable doubt, the  prosecution  must  establish the exact  nature  of  the injuries  caused to the deceased by the accused with a  view to  sustain  the conviction of that accused  for  inflicting that particular injury. [812 G-H, 813-A]      5. It is the case of the prosecution that the  injuries were  caused to the deceased not only by the appellants  but by the other accused also, who stand acquitted. In the  face of  this  evidence  it cannot be  postulated  that  the  two appellants alone caused all the injuries to the deceased and that  too with the common intention to cause his  death.  If the  accused  had  the  intention  to  cause  death  of  the deceased,  they  would have probably come  armed  with  mere formidable  weapons. The seat of the injuries as also  their nature fortifies this view because most of the injuries were on non-vital parts of the body. Therefore, it cannot be said that the appellants have had                                                        797 the  intention of causing the death of the deceased or  even causing  such  bodily injury as was likely to  cause  death. Therefore,  neither of them can be convicted  under  Section 302/34 IPC. [811-D, 812-C-E, 813-B]      5.1  However,  the  offence  of  the  appellants  would squarely fall under Section 304 Part II IPC because they can be  attributed with the knowledge that their act was  likely to cause death or to cause such bodily injury as was  likely to  cause death, since a number of injuries had been  caused and,  the head injury was sufficient in the ordinary  course of nature to cause death. Accordingly, they can only be held guilty  of  committing culpable homicide  not  amounting  to murder. [813 C-D, 812 F]      6.  Consequently, appellants’ conviction is altered  to one  under  Section  304 Part II. However, as  each  of  the appellants had suffered imprisonment for more than five year as  under-trial  prisoners  and  during  the  trial  and  on conviction it is not now desirable to send them back to jail after  they  have been on bail for more than  a  decade  and particularly  when  during   that period  nothing  has  been brought  to  the notice of the Court to show that  they  had indulged in any criminal activity. Therefore, their sentence is  reduced to the period of imprisonment already  undergone by them. [813 E, 813 G-H, 814-A]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 66-67 of 1978.      From  the  Judgment and Order dated 15.9.1976   of  the Madras High Court in Criminal Appeal No. 209 of 1975.      N.T. Vanamamalai,   R.K.  Grag,  V.J.   Francis,   A. Sasidharan and V. Subramaniam for the Appellants.      K.V. Venkataraman  and  K.V.  Viswanathan  for the Respondent.      The Judgement of the Court was delivered by      DR.  A.S.ANDND  J. Trade union rivalry  and  fight  for leadership, power and influence in the trade union,  claimed the  life  of Prathab Chandran on 15th of June 1972  at  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15  

Simpson  Plant  Sembium.  For the  said  murder  of  Prathab Chandran, Ex. Vice-President of the Peravai Workers’  Union, seven  accused were arrayed on seven  charges and  tried  by the  learned  Sessions  Judge,  Madras  Division  who   vide judgment dated                                                        798 29th  March 1975 acquitted all the accused of the charge  of criminal  conspiracy under Section 120 B read  with  Section 302 IPC. All the accused other than accused No.2 and accused No.3 (hereinafter referred to as A-2 and A-3) were acquitted of the other charges framed against them and conviction  was recorded  against  A-2 and A-3 under Section 302  read  with Section 34 IPC and each one of them was sentenced to  suffer rigorous imprisonment for life. A-2 and A-3, namely,  Nadodi Jayaraman [A-2] and Dilli Bai [A-3] filed an appeal  against their conviction and sentence in the High Court of Madras. A Division  Bench  of  that Court, vide  judgment  dated  15th September  1976, dismissed their appeal,  thereby  upholding their  conviction and sentence. Both A-2 and  A-3  preferred special  leave  petitions (Crl.) in this Court  and  on  1st February  1978,  special  leave  was  granted.  Hence  these appeals.      Before  proceeding,  further, it would be  relevant  to note that both the appellants, A-2 and A-3, along with  five acquitted  co-accused, A-1, A-4, A-5, A-6 and A-7, had  been charged firstly, for criminal conspiracy to cause the murder of  Prathab  Chandran, punishable under Section 120  B  read with Section 302 IPC and secondly, for the murder of Prathab Chandran, in  furtherance of common intention  to  kill  him punishable  under Section 302 read with Section 34 IPC.  A-1 was  charged  with  abetment  of  murder,  punishable  under Section  302 read with Section 109 IPC; A-4 was charged  for voluntarily  causing  hurt to  PW-19  Munuswami,  punishable under  Section  320 IPC; A-2, A-3 and A-6 were  charged  for voluntarily  causing  hurt  to  PW-21,  Gopalakrishnan,   in furtherance  of  their common  intention,  punishable  under Section  324  read  with Section 34 IPC; A-5  and  A-6  were charged for voluntarily causing hurt to PW-23, Gajendra Babu in  furtherance of their common intention  punishable  under Section  324 read with Section 34 IPC, and A-6  was  charged for voluntarily causing damage to the motor-cycle of Prathab Chandran deceased, punishable under Section 435  IPC. Except for  recording the conviction of A-2 and A-3 for an  offence under  Section  302  read with Section  34  IPC,  all  other charges against the accused including A-2 and A-3 failed and since there has been no  appeal against the acquittal of the co-accused of A-2 and A-3 or against A-2 and A-3 in  respect of  their  acquittal  for the other offences,  we  need  not detain  ourselves  to reproduce the finding  of  the  courts below  in respect of various charges which had  been  framed against all the accused persons.      The  case of the prosecution is that Simpson  Group  of Companies                                                        799 had nine factories at the relevant time. There was a  labour union  known   as Simpson Companies Workers’ Union  and  one Kattur  Gopal was its President. Prathab Chandran  deceased, an  inspector  working in Plant III, was one  of  its  Vice- Presidents.  This Union was attached to what is  called  the "D.M.K.  Peravai".  The  deceased  was  one  of  the   prime promoters  of the said Peravai. Kuchelar A-1 was elected  as the   president  and  Nododi  Jayaraman  A-2  [one  of   the appellants  herein]  was elected the Vice-president  of  the Simpson  Group  of Companies Workers’ and Staff  Union.  The election  had  taken place by secret  ballot  on  27.4.1972.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15  

Madhavan  A-5 and Sailam A-4 had been elected  as  Assistant Secretary  and  Executive  Committee  Member  of  the  Union respectively.  Amuldoss alias Devadoss, A-6, and  Devarajan, A-7, were elected as group leaders. Kuchelar A-1, considered Prathab Chandran deceased as posing a serious threat to  the power and influence, hitherto exercised by him in the Labour Union  Movement. This rivalry between A-1 group and  Prathab Chandran  group in the trade union leadership,  resulted  in the  occurrence  on  15.6.1972, when  Prathab  Chandran  was murdered.      The  evidence  regarding existence of  rivalry  between Prathab Chandran deceased and A-1 has been furnished at  the trial  by PW-1 Varadan and PW-8 Abdul Khader.  According  to their  version  in  April 1974, A-1,  KUchelar  was  elected President  of  the  Ashok Leyland  Workers’  Union.  It  was alleged that owing to the "go slow" policy advocated by A-1, the  management of the Ashok Leyland closed the  factory.  A meeting of various trade unions was convened and in the  all party  meeting  held on 29.5.1972, it is  alleged  that  the deceased  in the course of his speech in the meeting  stated that  A-1  should be removed from the Presidentship  of  the union  as  he  creates a  situation,  whenever,  he  becomes President  of  any union necessitating the  closure  of  the factory,  to the detriment of the workers’ interest. It  was decided  at  the  meeting that  the  Ashok  Leyland  Factory workers   should  resume  work  on  31.5.1972.  Earlier   an Association  had been formed called Ashok  Leyland  Workers’ Welfare  Protection Front and the deceased Prathab  Chandran was  its promoter. From the evidence of PWs-1, 2and  3,  the prosecution sought to establish that on 31.5.1972, the group belonging  to A-1 went to Ashok Leyland Factory in order  to create  galata in case the workers resumed work as  per  the directions  given by Prathab Chandran deceased, at  the  all party  meeting.  On the intervention of PW-2,  and  untoward situation was avoided. On 9.6.1972, the executive  Committee of the Ashok Leyland workers’ Union passed a ’no-confidence’                                                        800 motion  against A-1 and removed him from  the  Presidentship and  instead elected PW-1 as the president of the Union.  On 11.6.1972,  when A-1 came to the Ashok Leyland  Factory,  he learnt  that Prathab Chandran deceased was  responsible  for his removal from the Presidentship of Workers’ Union and the election of PW-1 as its President. A-1, thereupon, told  his supporters  and  others that Prathab Chandran  deceased  had been  giving lot of trouble and that he should be  finished. Prosecution  has  led evidence to show that there  had  been some incidents earlier also resulting in a show down between Prathab  Chandran  group  and the A-1  group, including  the incident  of hoisting the flag by Prathab Chandran  deceased at Nanthampakkam Surgical Instruments Factory on  19.5.1972. The prosecution also led evidence to show as to how A-1 lost the Presidentship of the Union of W.S. Insulators  Employees and  Prathab  Chandran managed to wield influence  with  the labour  and  members  of the union of  the  W.S.  Insulators Employees when he formed a rival union called W.S. Insulator Workers’  and Staff Union on 6.3.1972. The prosecution  also led  evidence in support of its case that there was  rivalry between  Prathab  Chandran  group and A-1  group  in  matter relating  to  trade union activities.  The  prosecution  has established  on  the  record, as was found  by  the  learned Sessions  Judge and the Division Bench of the High Court  of Madras, that there was trade union rivalry between A-1 group and  Prathab  Chandran group and that  A-1  nurtured  grudge against   Prathab  Chandran   deceased.  It  is   also   the prosecution  case  that  on 14.6.1972,  at  the  request  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15  

Prathab  Chandran deceased, Raju PW-11, gave a draft  notice Ex.P-3  to  Ganeshan  PW-12 for  printing  of  the  pamphlet relating  to a meeting to be held under the auspices of  the Welfare Committee at 11.00 a.m. on 18.6.1972 Raju PW-11 gave fifty   copies  of  the  notice  to  Balaraman   PW-22   for distributing  the  same amongst the workers  and  took  upon himself to distribute the rest of the pamphlets.      It is further the prosecution case that on the  fateful day, 15.6.1972, Prathab Chandran deceased left his house for the  factory  at about 3.30p.m. on his  motor-cycle  bearing registration   No.MDS-9200,   belonging   to   his   brother Ramachandran PW-18, who was then staying with him. Ravindran PW-13  accompanied  the  deceased  and  was  riding  on  the pillion.  At about 4.00 p.m. they reached  Simpson  Factory. Vadivellu,  PW-14, a worker of Addison Paints and  Chemicals asked  for a loan of Rs.200 from the deceased, who  promised to  give  it  to him on getting  the  incentive  money.  The deceased  signed an incentive slip, Ex.P-9, and gave  it  to Panchapakesan  and proceeded towards Plant II, where he  was working as                                                        801 an  Inspector.  The  pamphlet relating  to  the  meeting  of 18.6.1972, had earlier been distributed by Balaraman PW-22.      Earlier  at about 3.45 p.m. on 15.6.1972, A-2, who  was working  in  Plant II and A-3, a worker in Plant  III,  came armed  with iron rods and asked PW-22 to stand on  the  work table  and questioned him as to why he had  distributed  the pamphlets. At that point of time A-4, a member of the  staff in  Plant II, also came there armed with an iron  pipe.  A-2 told  A-4 that Prathab Chandran was bound to come  there  on hearing that PW-22 had been made to stand on that table  and he  called  A-5 to A-7 to come there so  that  when  Prathab Chandran comes he should be finished then and there, as  per the "instructions" of Kuchelar A-1. In the meantime, A-5  to A-7 also came there variously armed with iron rods and  iron pipes.  Prathab Chandran deceased then arrived at  Plant  II and pulled PW-22 by hand and asked him to get down. A-2 then declared  that  they knew that Prathab Chandran  would  come there  and that they were waiting for him when  A-3  shouted that  they had decided to finish him. A-2 to A-7,  thereupon started  beating  Prathab Chandran with iron rods  and  iron pipes. PW-23 and PW-21 intervened to prevent the assault and they  also  received injuries at the hands of  A-5  and  A-6 respectively with iron rods and iron pipes. A-2, A-3 and A-6 gave beating to PW-21 also and at that point of time Prathab Chandran attempted to escape through the western entrance of Plant  II towards Plant III. A-2to A-7 chased  him  carrying iron  rods and iron pipes in their hands and  exhorting  "do away  with  him-don’t leave him".  They  obstructed  Prathab Chandran  at the entrance to Plant III when Munuswamy  PW-19 pleaded  with  them  not  to  beat  Prathab  Chandran.  A-4, thereupon, gave a first blow on the nose of PW-19 while  A-6 gave  a  blow with iron pipe on his back.  Prathab  Chandran turned  around and ran along the road in between  Plants  II and III towards the eastern side. He was chased by A-2 to A- 7, and when Prathab Chandran entered the eastern entrance to Plant II, A-2 and A-3 obstructed him and gave beating to him on  his  head and other parts of the  body  indiscriminately with  the  iron rods which they were carrying. A-4  and  A-7 then shouted that the supporters of Prathab Chandran  should also  be caught. A-5, however, dropped the iron rod  he  had with  him  and left the place. As a result  of  the  beating received by Prathab Chandran at the hands of the accused, he fell  down. After Prathab Chandran had fallen down,  he  was put  on a stretcher by PWs 26 and 27 and taken to the  first

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15  

aid room. At the first aid centre after rendering first  aid to the injured the Medical Officer asked them to rush                                                        802  Prathab  Chandran to the General Hospital. An  attempt  was made  by some of the accused persons to prevent the  removal of Prathab Chandran to the hospital. However, later on,  A-5 came there and said that A-1, Kuchelar, had given permission for  the removal of Prathab Chandran to the Hospital,  where he was later on removed in a police van.      PW-38,  the  Industrial Relations  Officer  in  Simpson Group of Companies received a phone call at about 4.30  p.m. on  15.6.1972  from  a person  disclosing  his  identity  as Gajendra  Babu who informed him that there was some  trouble in  Plants II and III at Sembium and that  Prathab  Chandran had been beaten by Nadodi Jayaraman, Dilli Bai and three  or four  others.  PW-38 was further told by the  said  Gajendra Babu to make arrangements for taking Prathab Chandran to the Hospital and its was the Industrial Relations Officer  PW-38 who,  thereupon, contacted the Police Control Room on  phone and  asked  them  to rush to the Sembium  Simpson  Group  of Companies.  Ramachandran, PW-41, Head Constable on  duty  in the  Police  Control Room received a message from  PW-38  at 4.34  p.m.  from telephone No.83773 to the effect  that  the workers  in Plants II and III of Simpson Company at  Sembium were engaged in rioting and immediate action might be taken. The  message was recorded in the register and  communication of  the information was sent to the higher  authorities  and Police  Control Room as well. PW-44  Assistant  Commissioner (Law and Order) Western Range received the message from  the Police  Control  Room at about 4.35. p.m. on  15.6.1972  and rushed  to  the  main  entrance  of  the  Simpson  Group  of Companies,  Sembium  reaching there at about  4.45  p.m.  He found  that  there was a crowd of workers  comprising  about 3000  workers shouting slogans and they prevented  him  from entering the Simpson Estate. At about 5.10 p.m., the  Deputy Commissioner of Police, [Law & Order] North also came  there with some additional force but the crowd still continued  to be  boisterous and violent. They pelted  stones  and  brick- bats  at  the  police. The Commissioner  of  Police  himself arrived at 6.00 p.m.and warned the crowd that if they failed to  give  way  ,  he would use force.  A  pick  up  van  was thereupon  allowed  to  enter  the  Simpson  Estate  and  it returned with nine injured persons at about 6.30 p.m. Since, the mob continued to be violent, the Commissioner of  Police ordered  a  mild  lathi  charge  after  the  management  had declared  that the factory would remain closed on  15th  and 16th  of June 1972. Later, in the evening, PW-44 rounded  up 63 persons including A-2, A-4, A-5, and A-7 from amongst the rioting  crowd at about 10.00 p.m. and handed them  over  to Sub-Inspector                                                   803 of  Police, [Law & Order], when he came there in  connection with  FIR  in  Crime No.919 of 1972. PW-44  gave  a  special report, EX-P.42, to Inspector Kothandapani of Crime  Branch, Madras. PW-46 Inspector Dasaratha Raman of Crime Branch went to the ESI Hospital along with PW-42 and PW-40 and found PW- 23  and  Gajendra  Babu  in  Ward  No.11.  He  recorded  the statement of PW-23 and registered a case in Crime No.919  of 1972 relating to FIR Ex.P-45. He directed the arrest of  the six  accused  persons mentioned in the statement.  PW-45  to whom A-2 and A-5 were handed over by PW-42 took them to  the Commissioner’s  Office   at  about 1.00 a.m.  on  the  night intervening  15th and 16th of June 1972 and as they  reached the Commissioner’s Office in the van at about 2.00 a.m., A-2 and  A-5  jumped from the van and ran  towards  the  canteen

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15  

inside the Commissioner’s Office with a view to escape. They were chased and since they resisted their arrest, force  was used  and  they were over-powered.  They  sustained  certain injuries  in  that incident. PW-45 gave the  special  report Ex.P-43  for the said incident to the Inspector and  a  case was registered in Crime No.494 of 1972 under Section 224 IPC against  A-2 and A-5. The injured A-2 and A-5 were taken  to Kilpauk Medical College for treatment.      At  about 7.30 p.m. on 15.6.1972, PW-33,  the  Casualty Medical  Officer attached to the General  Hospital  examined Prathab  Chandran and found him dead. He prepared an  injury statement  and sent the report, Ex.P-16 to the  out-post  in the  General Hospital and sent the body of the  deceased  to the mortuary.      PW-37,  Dr. C.B. Gopalakrishnan  conducted  post-mortem examination  on the dead-body of Prathab Chandran  at  about 1.45 a.m. on 16.6.1972, and found the following injuries  of the body of the deceased:      1.   Transverse laceration over front of right knee 3 X           1 cms.      2.   Laceration 2 X 1 cms. oblique over front of middle           of right leg.      3.    Laceration 4 X 2 cms. bone deep just above  front           of right ankle.      4.    Bruising outer aspect of lower portion of  middle           of right leg 3 X 2 X 1 cms.      5.   Bruising of right ankle and foot outer aspect 6  X           3 X 1 cms.      6.   Laceration of the left ankle near medial  mollelus           3 X 2 X 1 cms.                                                   804      7.   Laceration inner aspect of left leg just above the           ankle 3 X 2 X 1 cms.      8.    2  cms. above injury No. 7 laceration 4 X 2  X  1           cms.      9.   Contusion middle of front of left leg 3 X 2  X  1           cms.      10.   Laceration 4 X 2 cms. bone deep over front of  left           leg below  left knee.      11.   Laceration  3 X 2 cms. bone deep  front  of  left           knee.      12.  Contusion middle of outer aspect of left forearm 2           X 1 X 1/2 cms.      13.  Contusion 8 X 2 X 2 cms. middle of outer aspect of           right arm.      14.  Contusion 12 X 2 X 1 cms. middle of front of right           arm.      15.  Laceration 1-1/2 X 1 cms. muscle deep outer aspect           of right elbow.      16.  Bruising of lower portion of right arm out  aspect           1-1/2 X 1 X 1 cms.      17.  Bruising out aspect of middle of right forearm 5 X           3 X 2 cms.      18.   Bruising outer aspect of front of right  side  of           chest 3 X 2 X 1 cms.      19.  4 cms below injury No.18, bruising 2 X 1 X 1 cms.      20.   Irregular laceration 3 X 2 cms. bone  deep  right           side of face near right side of nose.      21.   Laceration frontal region near the inner  end  of           right eyebrow 2 X 1 cms. bone deep.      22.  Laceration back of left side of frontal region 5 X           2  cms.  bone  deep  fissured  fracture  10   cms.           vertical  of frontal bone extends into  base  with           comminuted fracture of left orbital plate.                                                        805

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15  

    23.   Laceration  4 X 1 cms.  bone  deep  verticle           right temporal region 2 cms. above right ear.      24.   Laceration of right occipital region 3  X  1           cms. muscle deep.      25.  Laceration of temporal region just  above  right           ear 1 X 1/2 cms. muscle deep.      26.  Laceration 3 X 2 cms. muscle deep  back  and           middle of lower part of right thigh.      27.  Bruising middle of back of right thigh 4 X 2  cms.           muscle deep.      28.  Bruising back of middle of left thigh 5 X 3  cms.           muscle deep.      29.  Bruising right side of abdomen lower part 3  X  1           cms. muscle deep.      30.  Bruising  right side of chest 5 X 4  cms.  muscle           deep      31.  Bruising of right side of back extend into  front           of chest 10 X 4 cms. muscle deep.      32.  Bruising top and back of right shoulder 5 X 2 cms.           muscle  deep  .  Edges  of  the  lacerations  were           contused. Sub dural haemorrhage over the whole  of           left  cerebral  hemisphere  and   base  of   brain           subarachnoid haemorrhage over left frontal region.      Post  Mortem  Certificate, Ex.P-26 was  issued  by  the Doctor  who opined that the deceased had died due  to  shock and  haemorrhage  on account of multiple injuries  and  that injury  No.22 was sufficient to cause death in the  ordinary course  of nature. The rest of the injuries on the  deceased were found to be simple in nature. The Doctor further opined that  subarachnoid haemorrhage over the left frontal  region and subdural haemorrhage over the whole of the left cerebral hemisphere and the base of the brain were the  corresponding internal  injuries to external injury No.22. He went  on  to add  that all the injuries could have been caused  by  blunt weapon  and  that death could have occurred at  about   5.10 p.m.  on 15.6.1972 and the injuries sustained at about  4.45 p.m.  The  Doctor also opined that the deceased  could  have survived for about an hour and might                                                   806 have become unconscious after the receipt of the head injury i.e.  injury No.22. The Doctor went on to say that  all  the injuries  on the deceased, without injury No.22,  could  not have  by  themselves  caused his death and  that  all  those injuries  might  have precipitated his death  occasioned  by injury No.22.      The story as unfolded by the prosecution at the  trial, thus,  goes  to show that the occurrence on  15.6.1972  took place in three parts. The first part centres around the work table  incident in Plant No.II when PW-22 was made to  stand on the table and the deceased came there and was attacked by A-2  to  A-7. PWs 21 and 23 had also received  some  beating during  this part of the incident. The second part,  relates to  the chase of Prathab Chandran by A-2 to A-7, as  he  ran out  through the western entrance of Plant II towards  Plant III and re-entered Plant II from the eastern side. The third part of the occurrence concerns the happenings inside  Plant II  at  the  eastern entrance  where  the  deceased  Prathab Chandran  was  assaulted as a result whereof he  had  fallen down.  All the three parts of the occurrence were sought  to be established by the prosecution by producing more than six eye witnesses. Some of the eye witnesses deposed only  about the first part of the occurrence while the other eye witness deposed  about  the second and the third part.  The  learned Sessions  Judge  after an appraisal of the  evidence  relied upon the testimony of PWs 19, 21, 22, 25, 26 and 27 to  hold

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15  

that A-2 and A-3 had assaulted deceased Prathab Chandran  on account of their rivalry and that Prathab Chandran succumbed to the injuries caused by all the accused persons  generally and  A-2 and A-3 in particular. The learned Sessions  Judge, however, disbelieved the theory of conspiracy as alleged  by the  prosecution  and also  discredited  the  ‘exhortations’ allegedly  uttered  by  A-1 on various  occasions.  He  also disbelieved the utterances alleged to have been made by some of  the  accused  during the first and second  part  of  the occurrence  and  opined  that various  utterances  had  been attributed  to the accused persons with a view to  establish criminal  conspiracy  and  that  part  of  the   prosecution evidence was only an embellishment. None of the accused were found guilty of the injuries alleged to have been caused  by them to some of the prosecution witnesses. The testimony  of the  prosecution witnesses was, thus, not accepted in  toto. Conviction  was  recorded only against A-2 and  A-3  for  an offence under Section 302/34 IPC.      The Division Bench of the High Court, after reappraisal of the                                                        807 evidence  and  hearing learned counsel for  the  parties  at length,  found themselves in ‘complete agreement’  with  the learned  Sessions  Judge  in  disbelieving  the  charge   of criminal  conspiracy as put up by PWs 4, 7, 10, 20  and  30. The  High  Court did not agree with the submission  made  on behalf of the appellants that the acquittal of A-5 to A-7 of all  the charges was sufficient reason for disbelieving  the prosecution  witnesses  against  A-2  and  A-3  also.  After analysing  the evidence, the High Court found  that   though the  learned Sessions Judge was not justified  in  accepting the  plea of alibi as set up by A-5 but since no appeal  had been  filed  against  his  acquittal,  the  finding  of  the Sessions Judge with regard to the acquittal of A-5 could not be interfered with. With regard to the participation of  A-6 and  A-7 in the assault, the High Court found,  contrary  to the  findings of the Sessions Judge, that there  was  enough material on the record to establish the participation of A-6 and  A-7  but  again  held that since  no  appeal  had  been preferred  against  their acquittal, therefore, it  was  un- necessary to deal with the question of their  participation. The  High Court noticed that the prosecution witnesses  were partisan  and therefore closely scrutinised the evidence  of the eye witnesses with a view to determine the complicity of A-2 and A-3 in the murder of Prathab Chandran deceased.  The Division Bench relied upon the testimony of PWs 19, 21,  22, 25, 26 and 27 and found:          "absolutely no hesitation in believing the evidence          of  these witnesses, though partisan in  character,          in as much as they have come forward with the  true          picture  of the incidents that occurred in  Simpson          Groups, Sembium on the fateful day."          The High Court then went on to observe:          "Thus,  the evidence let in by the prosecution  and          discussed above, clearly and clinchingly proves the          complicity  of the appellants in the crime. On  the          basis   of  the  evidence  of   the   eye-witnesses          discussed  in the foregoing paragraphs, it  can  be          safely  concluded that it was the  appellants  who,          with iron rods, dealt blows on the head of  Prathab          Chandran  at  the  entrance  of  Plant  II,  which,          according  to the prosecution is the third part  of          the occurrence."      and   then  after  discussing  the   medical   evidence confirmed the conviction and sentence imposed upon both  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15  

appellants.                                                        808      M/s. N.T. Vanamamalai and R.K. Garg, the learned senior advocate,  who  have appeared for the appellants  before  us vehemently  argued that since the main charge of  conspiracy against  all the accused had failed, the witnesses  who  had supported  that charge could not be believed to sustain  the conviction  of A-2 and A-3. Learned counsel argued that  A-2 and A-3 had been falsely implicated, since they were leaders of  the rival Union and on the basis of material  on  record their implication with the aid of Section 34 IPC was in fact an attempt to finish the union and the partisan  prosecution witnesses  had a motive to falsely implicate  them.  Learned counsel  emphasised  that the absence of names  in  the  FIR Ex.38  was indicative of the fact that scope had  been  left therein  so as to implicate non-assailants also and A-2  and A-3,  were  falsely  implicated on account  of  trade  union rivalry. Great emphasis was laid by learned counsel for  the appellants  on the partisan character of the  eye  witnesses and  it was urged that with the acquittal of A-1 and A-4  to A-7  of all the charges, the conviction of A-2 and  A-3  had also  become vulnerable and since the prosecution  witnesses had been disbelieved qua A-1 and A-4 to A-7 even with regard to the asault on Prathab Chandran, they could not be  relied upon to convict the appellants.      That  Prathab Chandran died on account of the  injuries received by him in the occurrence on 15th June 1972, is  not in  dispute.  It also is not a matter of conjecture  to  say that the prosecution witnesses are partisan in character. As a matter of fact, both the learned Sessions Judge as well as the  Division Bench of the High Court were conscious of  the fact  that the eye witnesses were partisan in character  and it was for that reason that both the courts had  scrutinised their  evidence  closely and in great details  in  order  to satisfy themselves with regard to the truth or otherwise  of their  evidence in so far as the involvement of A-2 and  A-3 is  concerned.  We are in agreement with  the  appraisal  of evidence  by  the High Court. This Court, in  an  appeal  by special leave, when the two courts below have concurred   in their conclusions does not ordinarily reassess the  evidence and  we,  therefore, had to decline the  invitation  of  the learned counsel for the appellants to reappraise the  entire evidence the third time. We, however, with a view to satisfy ourselves about the nature of the offence, in the facts  and circumstances  of the case, scrutinised those parts  of  the deposition of the prosecution witnesses which dealt with the assault  on Prathab Chandran deceased. After  going  through the  relevant evidence and hearing learned counsel  for  the parties, we are of the view that the conclusion, with                                                   809 regard  to  the assault on the deceased by A-2 and  A-3,  as recorded by the learned Sessions Judge and confirmed by  the learned  Division Bench is based on proper appraisal of  the evidence  and is sound. The High Court took pains  and  made conscientious efforts to scrutinise the evidence relating to the  complicity  of  A-2 and A-3 and  rightly  rejected  the argument  that  since  some  of  the  co-accused  had   been acquitted,  against  whose  acquittal  no  appeal  had  been preferred  by  the State, the evidence  of  the  prosecution witnesses so disbelieved could not be relied upon to sustain the  conviction of A-2 and A-3 either. This Court  has  time out  of  number  pointed out that the Maxim  falsus  in  uno falsus  in  omnibus cannot be mechanically applied  and  the mere  fact  that  the evidence of some  of  the  prosecution witnesses was found unsafe for convicting the co-accused, is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15  

by  itself no ground for rejecting the whole body  of  their testimony. It only puts the court on its guard to  carefully scrutinise  their  evidence.  As  already  notice,  we   are satisfied with the appraisal of evidence by the courts below and  find no reason to doubt the involvement of A-2 and  A-3 is  so  far as the assualt on Prathab Chandran  deceased  is concerned.      Faced  with  this situation, learned  counsel  for  the appellants argued that the conviction of both the appellants for an offence under Section 302/34 IPC was in the facts and circumstances of the case not sustainable. It was  submitted that it could not be said with any amount of certainty  that the blow given by A-2 or A-3 was by itself fatal or who  out of the two caused the fatal blow as that the same was caused with  the intention of causing death. It was submitted  that though  the deceased had suffered as may as 32 injuries,  it was only one injury which had proved fatal according to  the medical  opinion and therefore the appellants could  not  be attributed with the intention of causing such bodily  injury either  which  could  cause the death  and  therefore  their conviction  for an offence under Section 302/34 IPC was  not warranted.  Learned  counsel emphasised that the  nature  of injuries,  taken  as a whole could only clothe A-2  and  A-3 with  the intention to give beating to the deceased and  not with any intention to kill him and they could be held guilty for an offence under Section 325/34 IPC only.      In  cases, where large number of persons  are  involved and in the commotion injuries are caused to the  prosecution witnesses  and others, it becomes the duty of the  court  to determine the common intention which could be attributed  to those accused who stand convicted, where some of                                                   810 their  co-accused stand acquitted and the State chooses  not to  file any appeal against their acquittal. With a view  to determine the common intention, the nature of injuries,  the background  of  the incident and the nature of  the  weapons used  to  cause  the  injuries  besides  other  factors  are required to be properly considered and appreciated.      The manner in which the occurrence in three parts  took place  has been adverted to by the  prosecution   witnesses. They  have deposed about the assault on the deceased in  the different parts of the occurrence and the role played by A-2 and  A-3.  According to Gopal Krishnan, PW-21 in  the  first part of the occurrence, "all the six of them [accused]  beat Prathab  Chandran alternatively".  He then   narrated  about the  chase given to Prathab Chandran by all the six  accused and  stated that at Plant III, A-2 and A-3 gave injuries  to the deceased. To the similar effect is the statement of  PW- 22 Balaraman, who stated that "these six persons [A-2 to  A- 7] beat Prathab Chandran by iron rods and iron pipes and the beating fell on him".  He also deposed that at the  entrance of gate to Plant No.III, A-2 and A-3 caused injuries to  the deceased.  K.  Krishnan, PW-24, deposed  that  when  Prathab Chandran  had  been  assaulted by all the  accused  and  ran towards  Plant  III, he was chased by all of  them  carrying iron rods and pipes in their hands. Subramaniam, PW-25, also deposed to the same effect as PW-21.  Ganpatilingam,  PW-26, apart from stating that all the six persons A-2 to A-7  gave beating to the deceased Prathab Chandran and that A-2 and A- 3  gave him beating alternatively, when he entered Plant  II also deposed that A-2 and A-3 had even threatened those  who were  trying to carrying the deceased on a stretcher to  the Hospital,  which part of the story was rightly not  believed by  the courts below. Raman, PW-27, deposed that "the  above said six persons beat Prathab Chandran repeatedly with  rods

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15  

and  pipes."  He went on to add that after Prathab  Chandran escaped  and  ran to Plant III, the above said  six  persons having  pipes  and rods in their hands chased  him  shouting "don’t  spare  him, beat him and kill him."   This  witness, however,  gave  a  lie  to  the  statement  of  the  earlier witnesses  when  he deposed that when he  was  carrying  the stretcher, he was not obstructed by accused A-2 and A-3. PW- 38  R.   Vishwanathan,  who  was  the  Industrial  Relations Officer  of the Simpson Group of Companies at  the  relevant time  and was the person who telephoned the Police  and  set the  investigating agency into motion, while deposing as  to how he was informed on telephone about the occurrence stated that Gajendra Babu had telephoned to him and said:                                                   811          "Nadodi  Jayaraman,  Delli Bai and  three  or  four          workers  beat  Prathab Chandran. When  I  tried  to          prevent  I was also beaten. Inform police and  make          arrangements to take Prathab Chandran to hospital."      Gajendra Babu, who telephoned to PW-38, had appeared as a  witness during the inquest proceedings and his  statement was  recorded,  which forms a part of  the  Inquest  Report, Ex.P-46.   He  had stated that the six  accused  had  joined together  and  given beating to Prathab  Chandran  and  that those who tried to prevent assault on the deceased were also beaten.   Referring to the third part of the occurrence,  he stated that "again these six people, pushed Prathab Chandran with iron rods, shouting don’t leave him,  kill him."      From  the  evidence as noticed above, it  emerges  that according  to the prosecution case itself the injuries  were caused to the deceased Prathab Chandran not only by A-2  and A-3 but by the other accused also, who stand acquitted.   In the  face of this evidence it cannot be postulated that  the two appellants alone caused all the injuries to the deceased and that too with the common intention to cause his death. A critical analysis of the injuries received by the  deceased, which have been extracted elsewhere in the judgment, goes to show  that  the  deceased had suffered  15  lacerations,  12 bruises  and  five contusions.  Injuries 1 to  11  had  been caused on his legs, knees, ankle etc., while injuries 26  to 29 were on the thigh and lower part of the abdomen. Injuries 12 to 17 and 32 had been cause on the forearm, elbow and the possibility  of those injuries having been received  by  the deceased  while  trying to ward off the blows on  the  vital parts  of  his  body cannot be  ruled  out.   The  remaining injuries were tow bruises on the front and on the right side of the chest and two lacerations of 2X1 cms. near the  right side  of  the nose and the inner end of the  right  eyebrow. There were two lacerations on the right temporal region  and one on the right occipital region.  It was only injury No.22 viz. "laceration on the back of the left side of the frontal region,  5X2  cms.  bons deep,  fissured  fracture  10  cms. vertical of frontral bone, extending to base with communated fracture  of the left orbital place", which was found to  be sufficient to cause death in the ordinary course of  nature. According  to the medical witness all the  injuries,  except injury  no.22, were simple in nature and could not  have  by themselves  caused  death  but  those  injuries  could  have precipitated the death.                                                    812 Since, the evidence of the prosecution unmistakably  asserts that injuries had been caused to the deceased by all the six accused and some injuries had been caused exclusively by A-2 and  A-3  alternatively,  during  the  third  part  of   the occurrence,  it  cannot  be said  with  certainty  that  the intention  of  the  accused was to cause  death  of  Prathab

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15  

Chandran deceased.  This is more so because according to the medical  evidence  the deceased had died "due to  shock  and haemorrhage on account of multiple injuries", and  according to the prosecution version all the seven accused had  caused the injuries and not only A-2 and A-3. The accused party was armed according to the prosecution evidence, with iron  rods and  pipes  and not with any other lethal  weapon.   If  the accused  had the intention to cause death of  the  deceased, they  would  have probably come armed with  more  formidable weapons.  Again,  looking to the nature of  injuries,  which except  for  injury  No.22, were only simple  and  no  other grievous  injury was even caused, it appears to us that  the accused  possibly  wanted to chastise the deceased  for  his trade  union  activities. The seat of the injuries  as  also their   nature  fortifies  our  view.   According   to   the prosecution  case itself, after Prathab Chandran had  fallen down in the third part of the incident, none of the  accused took advantage and caused any other injury to him.  Most  of the injuries, as already noticed, were on non-vital parts of the body.  From the evidence and circumstances of the  case, the  appellants  do  not appear to have  had  the  intention causing  the  death  of the deceased or  even  causing  such bodily injury as was likely to cause death. They can at  the best  be  attributed with the knowledge that their  act  was likely to cause death or to cause such bodily injury as  was likely  to cause death, since a number of injuries had  been caused  and  injury  No.22 was sufficient  in  the  ordinary course of nature to cause death. It is not as if A-2 and A-3 alone  were armed with iron rods and pipes, with  which  the injuries  were  caused and their acquitted  co-accused  were unarmed.    The  acquitted  co-accused,  according  to   the prosecution  evidence,  were also armed with iron  rods  and pipes and as such it would be hazardous to guess as to which blow  was caused by which accused.  If common  intention  to cause  death had been established in the  case,  prosecution would not have been required to  prove which of the injuries was caused by which accused to sustain the conviction of the accused  with the aid of Section 34 IPC, but in a case  like this, where five of the co-accused stand acquitted and   the common intention to cause death is not established beyond  a reasonable doubt, the                                                        813 prosecution must establish the exact nature of the  injuries caused to the deceased by the accused with a view to sustain the   conviction  of  that  accused  for   inflicting   that particular injury.  The evidence on the record does not lead to  the  conclusion that A-2 and A-3 alone  caused  all  the injuries  to  the deceased with the intention to  cause  his death.  The broad circumstances of the case impel us to hold that  the common intention of A-2 and A-3 was not  to  cause the death of the victim and therefore neither of them can be held guilty of the offence under Section 302/34 IPC.  Since, the   deceased   did  succumb  to   the   injuries,   caused collectively,  the  appellants can only be  held  guilty  of committing  culpable homicide not amounting to  murder.  The act  can be said to have been committed by the accused  with the knowledge that it was likely to cause death or to  cause such  bodily injury as was likely to cause death of  Prathab Chandran.  Learned counsel for the appellants have not  been able to persuade us to subscribe to the view that A-2 and A- 3 can only be clothed with the intention of causing grievous hurt,  punishable under Section 325/34 IPC.  The offence  of the  appellants would, in our opinion, squarely  fall  under Section 304 Part II IPC. Thus, setting aside the  conviction of  the appellants for an offence under Section 302/34  IPC,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15  

we  alter their conviction and hold them both guilty of  the offence under Section 304 Part II IPC.      Coming now to the question of sentence. The  occurrence took place almost two decades ago, on 15th  June 1972.   The appellants faced the trial and were convicted by the learned Sessions  Judge  Vide  Judgment dated 29th  March  1975  and thereafter  their  appeal against  conviction  and  sentence remained pending and was dismissed by the High Court on 15th September  1976.  Special leave was granted on Ist  February 1978,  and  on  28th  November  1978,  the  appellants  were directed to be released on bail vide this Court’s order made in  Criminal Misc.  Petition No.2495 of 1978.  On behalf  of the  appellants,  we  were  informed  that  as   under-trial prisoners  and during the trial and on conviction,  each  of the appellants had suffered imprisonment for more than  five years.   In our opinion, therefore, it is not now  desirable to sent the appellants back to jail after they have been  on bail  also  for more than a decade and during  this  period, nothing has been brought to our notice to show that they had indulged   in  any  criminal  activity.   Therefore,   while convicting  them for the offence under Section 304  Part  II IPC,  we sentence each of the appellants to suffer  rigorous imprisonment for the period already undergone by them.                                                        814      To  the limited extent noticed above, both the  appeals shall  stand allowed.  The appellants need not surrender  to the bail bonds which shall stand discharged. T.N.A.                                      Appeals allowed.                                                        815