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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1375               2009 [Arising out of SLP (Crl.) No. 6729 of 2006]

Padmanaban … Appellant

VERSUS

State By Inspector of Police, Tamil Nadu       … Respondent

WITH

CRIMINAL APPEAL NO.  1376                 2009 [Arising out of SLP (Crl.) No. 3262 of 2007]

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Bammiyampatti  is a small village situated in the District of Salem in the  

State of Tamil Nadu.  Amongst others, it  is inhabitated by two communities  

known as ‘Naidu’ community  and ‘Adi Dravida’  community.   The fact  that  

there  has  been  longstanding  enmity  between  the  members  of  the  said  

communities is not in dispute.  

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3. A function was to be organized by Adi Dravida community.  Rangasamy,  

deceased was having a grocery shop.  He despite being belonging to the Naidu  

community, permitted the members of the other community to take electricity  

from  his  shop.   Having  come  to  learn  of  the  same,  the  accused  persons,  

originally eight in number, got infuriated.  Rangasamy was threatened with dire  

consequences  for  his  act  in  supplying  electrical  energy  to  the  members  

belonging to the Adi-Dravida community at about 10 p.m. on 29.03.1997.  Next  

morning, i.e., on 30.03.1997, at about 11.30 a.m., the accused persons came to  

his  shop  with  casuarina  sticks,  trespassed  therein  and  at  the  instigation  of  

Accused No. 1 T. Purushothaman Accused No. 3 Murugan and Accused Nos. 6  

to  8  caught  him  whereafter  Accused  No.  2  Ravi  hit  the  deceased  with  a  

casuarina stick on the left side of the head, Accused No. 4 Mohan assaulted him  

on the right  side  of  the  head with  a  casuarina  stick  and Accused No.  5  V.  

Padmanaban assaulted him on the right side of the face near the eye causing  

grievous injuries to him.  The incident was witnessed by PW-1 Viswanathan,  

PW-2 Chandra and PW-3 Raman.   

It is not much in dispute that PWs 1 and 2 along with one Govindasamy  

took the injured Rangasamy to the Omalur Government Hospital at about 12.20  

p.m.  He was treated by Dr. Kumudha Rani, PW-7.  Mention of the incident  

found place in the accident register (Exhibit P-14).  The deceased was referred

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to the Government Hospital, Salem for further treatment by PW-7, upon taking  

into consideration the seriousness of the injuries suffered by him.   

The Omalur Government Hospital at Salem was situated at a distance of  

about 23 kms. from the place of occurrence. The deceased was examined by Dr.  

G. Sundaramurthy, PW-8 at about 1.00 p.m.  It is evidenced by the entries in the  

Accident Register which was marked as Exhibit P-15.  However, the injured  

was taken to a private nursing home known as Shanmuga Nursing Home.  It is  

also not in dispute that despite making entries in the accident registers both by  

the  attending  doctors  at  the  Omalur  Government  Hospital  as  also  Salem  

Government  Hospital,  the  SHO  of  the  concerned  police  station  was  not  

intimated  thereabout.   Dr.  Murugavel,  PW-9  examined  Rangasamy.   He,  

however, did not respond to the treatment.  He expired at about 4.00 a.m. on  

31.03.1997.

4. PW-1  lodged  a  First  Information  Report  at  about  8.30  p.m.  on  

30.03.1997.   The  said  First  Information  Report  was  recorded  by PW-13 V.  

Shanmugham,  Inspector  of  Police  of  Theevattippatti  Police  Station.   It  was  

registered as Crime Case No. 184 of 1997 under Sections 147, 148, 452, 341  

and 307 of the Indian Penal Code.  On the death of Rangasamy, however, the  

charge was altered by PW-13 to Sections 147, 148, 452, 341 and 302 of the  

Indian  Penal  Code.   The  body  of  the  deceased  was  sent  for  post  mortem

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examination.  The post mortem report suggests that he died because of head  

injuries sustained by him.

5. At the outset, we may place on record that the Accused No. 1 absconded.  

He did not face trial.  Accused No. 3 died during pendency of the trial and, thus,  

the case against him abated.   

6. Before  the  Additional  District  and Sessions  Court  –  cum – First  Fast  

Track Court, Salem, the prosecution examined 13 witnesses to prove its case  

against the accused person.  A large number of documents being Exhibits P-1 to  

P-32 were also marked.  Material exhibits brought on record were marked as  

MOs 1 to 12.   

The learned Sessions Judge recorded a judgment of conviction against  

Accused  Nos.  2  and  4  to  8.   They  were  sentenced  to  undergo  rigorous  

imprisonment for life.  A fine of Rs. 500/- was also imposed on them and in  

default thereof to undergo rigorous imprisonment for 50 days.

7. Accused  Nos.  2  and  4  to  8  preferred  appeals  before  the  High  Court  

questioning the correctness of the said judgment of conviction and sentence.  By  

reason of the impugned judgment, whereas the High Court accepted the appeals  

preferred by the Accused Nos. 6 to 8 on the premise that no overt act had been

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attributed to them as also on the ground that PW-3 did not assign any specific  

role so far as they are concerned, dismissed the appeals of the appellants herein.

8. Appellants are, thus, before us.

9. Mr. P.R. Kovilan Poongkuntran, learned counsel appearing on behalf of  

Accused  No.  2  Ravi  and  Accused  No.  4  Mohan,  Mr.  V.  Kanagraj,  learned  

senior  counsel  appearing  on  behalf  of  the  Accused  No.  5  Padmanaban  

submitted:

(i) The  prosecution  having  regard  to  the  genesis  of  the  occurrence  

cannot be said to have proved its case beyond all reasonable doubt.

(ii) The  conduct  of  the  prosecution  witnesses  should  be  held  to  be  

suspicious as they had taken the deceased to a hospital which is 23  

kms. away from the place of occurrence.

(iii) Despite the fact that the police station was adjacent to the hospital,  

no First  Information Report  was  lodged although the concerned  

prosecution witnesses had sufficient time therefor.

(iv) The delay in  lodging the  First  Information Report  has not  been  

explained.

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(v) The  doctors  PWs  7  and  8  who  were  said  to  have  treated  the  

deceased even did not inform the police although the incident was  

recorded in the accident registers [Exhibits P-14 and P-15].

(vi) All the accused persons having allegedly gone to the shop of the  

deceased with a common intention, there was absolutely no reason  

as to why all of them were not treated alike having regard to the  

fact  that the Accused Nos. 6 to 8 were acquitted of the charges  

levelled against them by the High Court.   

(vii) The High Court committed a serious error in passing the impugned  

judgment  insofar  as  it  failed  to  take  into  consideration  the  

individual  overt  acts  of  the  appellants  herein  in  the  light  of  

deposition of PWs 1, 2 and 3.   

(viii) No reliance ought to have been placed on the deposition of PW-1  

as occurrence having been taken place inside a structure, he could  

not  have  witnessed  the  incident  in  its  minutest  details  from  a  

distance of 10 feet.

(ix) PWs 1 and 2 being closely  related  to  the  deceased,  no reliance  

should have been placed on their testimonies by the High Court  

without  any corroborative  evidence.   PW-3,  who otherwise  is  a  

chance witness, also should not have been relied upon.

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(x) The prosecution having failed to establish existence of any strong  

motive on the part of the appellants to join their hands together in  

committing the  offence,  the High Court  should have recorded a  

judgment of acquittal.

(xi) In any event, the appellants having no intention to cause death of  

the deceased, at best, a case under Section 304, Part II of the Indian  

Penal Code has been made out.

10. Mr.  R.  Nedumaran,  learned  counsel  appearing  on behalf  of  the  State,  

however, supported the impugned judgment.

11. PW-1 Vishwanathan, in his deposition, stated in details as to how all the  

accused persons came to the grocery shop of the deceased and vandalized the  

same.   

The  shop  of  the  PW-1  was  adjacent  to  the  shop  of  the  deceased.  

According  to  him,  the  appellants  were  armed  with  casuarina  sticks.   He  

furthermore stated that it was at the instance of Accused No. 1 Purushothaman,  

Accused  No.  4  Mohan  struck  a  blow on  the  right  side  of  the  head  of  the  

deceased  as  a  result  whereof  he  fell  down whereafter  Accused  No.  2  Ravi

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assaulted  him on the left  side of  the  head and Accused No.  5  Padmanaban  

assaulted him on his face near the right eye.

The evidence of PW-1 is sufficiently corroborated by PW-2 Chandra and  

PW-3 Raman.   

12. It  is  also  not  in  dispute  that  the  deceased  at  the  earliest  possible  

opportunity  was  taken  to  the  Omalur  Government  Hospital  and  on  being  

referred to  the  Government  Hospital,  Salem was taken there.   As the  Chief  

Medical  Officer  of  the  Government  Hospital,  Salem was  not  available,  for  

better  medical  treatment,  the  deceased  was  taken  to  the  Shanmuga  Nursing  

Home.   

13. PW-7 Dr. Kumudha Rani, who was an Assistant Surgeon in the Omalur  

Government  Hospital  found  the  following  injuries  on  the  person  of  the  

deceased:

“1. A lacerated wound 10 cm x 1 cm x ½ cm over  right parietal bone near midline.

2. A lacerated wound 8 cm x 1 cm x ½ cm over  left parietal bone near midline.

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3. Contusion 4 cm x 3 cm right upper eye lid.”

14. Dr. G. Sundaramurthy, PW-8 who was working at Government Hospital,  

Salem admittedly  treated  the  deceased  as  an  in  patient.   The  deceased  was  

admitted in the Shanmugha Nursing Home at about 6.35 p.m.  

PW-13 V.  Shanmugham,  Inspector  of  Police  of  Theevattippatti  Police  

Station received a telephonic message from the Nursing Home.  He arrived at  

the Nursing Home at about 7 O’Clock, recorded the statement of Viswanathan,  

brother-in-law  of  the  deceased  (PW-1).   The  First  Information  Report  was  

registered by him after coming back to the police station at about 8.30 p.m.  He  

visited  the  place  of  occurrence  on  the  next  day.   By  that  time,  as  noticed  

hereinbefore, the deceased breathed his last.   

15. The post-mortem examination of the deceased was conducted by PW-11  

Dr. Vallinayagam.  The injuries found by him on the person of the deceased are  

as under:

“1. A  lacerated  wound  on  the  right  side  of  the  crown of the head.

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2. A lacerated wound on the left side of the crown  of the head.

3. Contusion over the right eye brow.

4. Further, on the crown of the head, a lacerated  wound on the right side.

5. Contusion on the back side of the head.”

PW-11 also recorded the manner in which the incident had taken place as  

also the weapons of attack.  Indisputably, the casuarina sticks were recovered on  

the basis of the statements of the appellants.  Both the courts below have placed  

implicit  reliance  on the  evidence of  PWs 1,  2 and 3.   We have been taken  

through their depositions and we do not find any reason to differ therewith.

16. PWs 1 and 2 may be closely related to the deceased but the same, in our  

opinion, by itself, would not be a ground for rejecting their testimonies outright.  

PW-3 was not related to the deceased.  The injuries suffered by the deceased  

have been proved.  The medical evidences in no uncertain terms corroborate the  

depositions of the eye-witnesses.  The injuries on the person of the deceased  

were found to have been inflicted by the appellants and the appellants alone.  

The fact that the shop of the deceased was located near the residential colony of  

the members of the Adi Dravida Community is not in dispute.  It is also not in  

dispute that they held a function on the Republic Day.  The fact that electrical

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connection was taken from the shop premises of the deceased wherefor a case  

for theft of electrical energy was recorded has been established.   

The eye-witnesses account clearly proved the motive on the part of the  

accused to commit the said offence.  The deceased being a member of the Naidu  

Community was reprimanded by his community member as he had tried to do  

something for the members of the other community.   

Appellants  along with others  were members  of  an unlawful  assembly.  

They came to the shop of the deceased with deadly weapons.  It was witnessed,  

apart  from PWs 1 and 2 also,  by PW-3 who was owner of a tailoring shop  

which was situated by the side of the shop of the deceased.  PW-3 was a witness  

to both part of the occurrence, viz., the action on the part of the accused to come  

to the shop of the deceased and threatening him in the night of 29.03.1997 and  

their  visit  on  the  following  morning  and  assaulting  the  deceased  ultimately  

resulting in his death.  The occurrence might have taken place on Sunday but  

there is nothing to show that the shops were closed.

17. Submission  of  Mr.  Kanagraj  that  PW-1  could  not  have  seen  the  

occurrence from a distance of 10 feet cannot be accepted.  The occurrence has

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taken place inside a shop and not inside a residential house.  The shop being  

open, we find no reason to disbelieve the deposition of PW-1 to state in details  

in regard to the manner in which the occurrence had taken place.

Presence of PWs 2 and 3 at the place of occurrence has also been found  

to be acceptable by the courts below.   

18. Some delay might have been caused in lodging of the First Information  

Report, but, the same has sufficiently been explained.  It is true that PW-7 in his  

evidence stated that he had sent the information to the police station but he also  

admitted that the same was not recorded in the accident register.  PW-7 was  

examined on 22.04.2003., i.e., after a period of more than six years from the  

date of the incident.  At the time of his deposition, he was working in the ESI  

Hospital,  Salem as Medical  Officer.   The Inspector  of  Police  PW-13 in  his  

evidence categorically stated that he received the telephonic message at about 6  

O’Clock in the evening from the Nursing Home and he reached there at about 7  

O’Clock.  We do not find any reason to disbelieve the said evidence brought on  

record by the prosecution.  

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19. No doubt lodging of a First Information Report at the earliest possible  

opportunity is desirable.  But, the courts cannot also ignore the ground realities  

that  the  relatives  of  the  deceased  would  give  priority  to  the  treatment  of  a  

severely injured person.  All attempts would first be made to save his life.  The  

action on the part of the prosecution witnesses, in our considered opinion, in  

giving priority to the treatment to the injured was wholly justifiable.   

20. PW-4 Sekaran, son of the deceased in his deposition, who has not been  

cross-examined, categorically stated that he had been working in a company  

known as Power Held Corporation of India at K.R. Thoppur.  He was informed  

about the incident by his maternal aunt Chandra (PW-2) when she came in a car  

and  took  him  to  the  Shanmugha  Nursing  Home  where  the  deceased  was  

admitted in its Intensive Care Unit.  The fact that he had to be brought to the  

Nursing Home by PWs is again a pointer to the fact that they were busy in not  

only making arrangements for proper medical treatment of the deceased but also  

intimating the son of the deceased (PW-4) and bringing him to the hospital at  

the  earliest  possible opportunity.   We, therefore,  are of  the opinion that  the  

delay in lodging the First Information Report has sufficiently been explained.

21. Submission of Mr. Kanagraj that PWs 2 and 3 are chance witnesses again  

cannot be accepted.  PW-3, as noticed hereinbefore, is owner of a tailoring shop

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which is situated by the side of the shop belonging to the deceased.  The place  

of occurrence is a small village.  PW-2’s presence, therefore, at the place of  

occurrence, cannot be doubted or disputed.   

22. It  is  also idle to contend that the appellants  had no motive to kill  the  

deceased.   Prosecution witnesses in their  depositions clearly brought  out the  

motive on the part of the accused to commit the crime.   

23. Submission of Mr. Kanagraj that the appellants had committed an offence  

only under Section 304, Part II of the Indian Penal Code cannot be accepted for  

more than one reason.  Appellants had formed an unlawful assembly.   They  

came to the place of occurrence with deadly weapons.  The overt acts attributed  

to them resulted in causing serious injuries on the head of the deceased.  They  

not  only  were  grievous  in  nature,  the  skull  of  the  deceased was also  found  

fractured.  The intensity of the assault  on the person of the deceased by the  

appellants,  therefore,  can be well  imagined.   When three  injuries  have been  

caused  on  vital  parts  of  the  body,  we  have  no  doubt  in  our  mind  that  the  

appellants knew that the said injuries were likely to cause death or cause such  

bodily injury which may result in death.

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24. In Virsa Singh v. State of Punjab [AIR 1958 SC 465] Bose, J. laid down  

the legal principle in this behalf in the following terms:

“In considering whether the intention was to inflict the  injury  found  to  have  been  inflicted,  the  enquiry  necessarily proceeds on broad lines as, for example,  whether there was an intention to strike at a vital or a  dangerous spot, and whether with sufficient force to  cause the kind of injury found to have been inflicted.  It is, of course, not necessary to enquire into every last  detail as, for instance, whether the prisoner intended to  have the bowels fall  out,  or  whether  he intended to  penetrate  the  liver  or  the  kidneys  or  the  heart.  Otherwise, a man who has no knowledge of anatomy  could never be convict, for, if he does not know that  there is a heart or a kidney or bowels, he cannot be  said to have intended to injure them. Of course, that is  not the kind of enquiry. It is broad-based and simple  and based on commonsense; the kind of enquiry that  `twelve good men and true'  could readily appreciate  and understand.”

25. The  aforementioned  dicta  has  been  followed by this  Court  in  a  large  

number of decisions including  Kesar Singh & Anr. v.  State of Haryana [2008  

(6) SCALE 433].  In view of the well-settled legal position, we need not refer to  

all the decisions of this Court operating in the field, but, we may notice Kesar  

Singh  (supra).

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Therein this Court considered a large number of decisions and stated the  

law in the following terms:

“To  put  it  shortly,  the  prosecution  must  prove  the  following  facts  before  it  can  bring  a  case  under  Section 300, "3rdly":

First, it must establish, quite objectively, that a bodily  injury is present;

Secondly,  the  nature  of  the  injury  must  be  proved;  These are purely objective investigations.

Thirdly, it must be proved that there was an intention  to inflict  that particular  bodily injury, that is to say,  that  it  was  not  accidental  or  unintentional,  or  that  some other kind of injury was intended. Once these  three elements are proved to be present,  the enquiry  proceeds further and,

Fourthly, it must be proved that the injury of the type  just described made up of the three elements set out  above  is  sufficient  to  cause  death  in  the  ordinary  course  of  nature.  This  part  of  the  enquiry  is  purely  objective and inferential  and has nothing to do with  the intention of the offender.

Once  these  four  elements  are  established  by  the  prosecution  (and,  indisputably,  the  burden is  on the  prosecution throughout) the offence is murder under  Section 300, "3rdly". It does not matter that there was  no  intention  to  cause  death.  It  does  not  matter  that  there was no intention even to cause an injury of a  kind that is sufficient to cause death in the ordinary  course of nature (not that there is any real distinction  between the two). It does not even matter that there is  no knowledge that an act of that kind will be likely to  cause  death.  Once the  intention  to  cause  the  bodily  injury is actually found to be proved, the rest of the

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enquiry is  purely objective and the only question is  whether, as a matter of purely objective inference, the  injury is sufficient in the ordinary course of nature to  cause death...”

In Kesar Singh (supra), this Court noticed the deviation from Virsa Singh  

tests beginning from State of Andhra Pradesh v. Rayavarapu Punnayya and Anr,  

[(1976) 4 SCC 382], to hold:

“Unfortunately, the propositions in Virsa Singh have  not been rigidly followed subsequently. For example,  in State of Andhra Pradesh v. Rayavarapu Punnayya  and Anr, [(1976) 4 SCC 382], the enquiry became one  of whether the accused intended to cause the ultimate  internal injury that led to death i.e. the Court inferred,  from the surrounding facts and circumstances in that  case  that  the  accused  had  intended  to  cause  the  hemorrhage etc that ultimately led to death.”  

This Court furthermore noticed the importance of the term “fight” used in  

Section 299 of the Indian Penal Code to opine:

“The word “fight” is used to convey something more  than  a  verbal  quarrel.  It  postulates  a  bilateral  transaction in which blows are exchanged. In order to  constitute a fight, it is necessary that blows should be  exchanged  even if  they  all  do  not  find their  target.  [Ratanlal and Dhirajlal, Vol 2, page 1364, Footnote 4]  No  material  in  this  regard  has  been  brought  on  record.”

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[See also Mohd. Asif v. State of Uttaranchal JT 2009 (4) SC 1 and Bala  

Baine Linga Raju v. State of A.P., 2009 (7) SCALE 73]  

26. For  the  reasons  aforementioned,  we  do  not  find  any  merit  in  these  

appeals.  They are dismissed accordingly.  

……………………………….J. [S.B. Sinha]

..…………………………..…J.     [Cyriac Joseph]

New Delhi; July 31, 2009