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2019 Supreme(SC) 1084
SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
Guru @ Gurubaran and Others – Appellants
Versus
State Rep. by Insp. of Police – Respondent
Criminal Appeal No. 1893 of 2010
Decided On : 27-09-2019
For the Appellant(s) :S. Nagamuthu, B. Balaji, S. Arun Prakash, Satya Mitra Garg, Advocates
For the Respondent(s) M. Yogesh Kanna, Advocate
IMPORTANT POINTS
When all accused come armed and assault the deceased to death, it shows premeditation and calls for conviction u/s 302.
When sections 34 and 149 IPC do not apply, each accused will only be responsible for his own acts and injuries.
Headnote:
(a) Indian Penal Code, 1860 - Section 302 - Evidence of all eye witnesses similar - Suppported by medical evidence - All accused armed variously - Occurrence not in the heat of passion, upon a sudden quarrel - Accused hitting hard on head of deceased with sickle - Must be aware that it could cause death - Conviction u/s 302 justified. (Para 5, 7, 8)
(b) Indian Penal Code, 1860 - Section 34 and 149 - High Court holding that sections 34 and 149 are not applicable in instant case - Hence each accused will only be responsible for his own acts and injuries - Blow by A2 caused only abrasion - Could not have caused death - Held, not liable to be convicted u/s 302 - Conviction altered to section 324 - Sentence reduced to period undergone. (Para 9, 10)
Facts of the case:
This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against the judgment of the High Court whereby Guru @ Gurubaran (A1) and Durai @ Durairajan (A2) have been convicted under Section 302, IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1000/- each with default sentence of 3 months rigorous imprisonment (RI). As far as Vettri @ Vetrivell (A3) is concerned, he was convicted under Section 324 IPC on two counts and sentenced to one year RI on each count and fine of Rs. 1000/- with default sentence of 3 months. Narayanan (A5) and Srinivasan (A9) along with other accused were convicted under Section 323 IPC and sentenced to undergo six months RI and pay fine of Rs. 1000/- each with default sentence of 3 months. All the sentences were to run concurrently.
Finding of the Court:
A2 cannot be convicted u/s 302. Conviction altered to section 324.
Result: Appeal of Accused Nos. 1, 3, 5 and 9 dismissed and the appeal of Accused No. 2 allowed.
JUDGMENT :
DEEPAK GUPTA, J.
1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against the judgment of the High Court whereby Guru @ Gurubaran (A1) and Durai @ Durairajan (A2) have been convicted under Section 302, Indian Penal Code (IPC) and sentenced to imprisonment for life and to pay a fine of Rs. 1000/- each with default sentence of 3 months rigorous imprisonment (RI). As far as Vettri @ Vetrivell (A3) is concerned, he was convicted under Section 324 IPC on two counts and sentenced to one year RI on each count and fine of Rs. 1000/- with default sentence of 3 months. Narayanan (A5) and Srinivasan (A9) along with other accused were convicted under Section 323 IPC and sentenced to undergo six months RI and pay fine of Rs. 1000/- each with default sentence of 3 months. All the sentences were to run concurrently.
2. The prosecution case is that Parasuraman (PW-14), son of deceased Saroja and Munusamy Pillai (PW-1), was in love with Uma, the younger sister of A1. They both got married and after the marriage, PW-14 lived in his wife’s house. However, Saroja (deceased) did not approve of this. Thereafter, PW-14 came back to his house. On 03.03.1998, it is alleged that Jayaraman (A4) assaulted Nagarajan (PW-2), brother of Saroja and brother-in-law of PW-1. To settle the dispute, a Panchayat was called the next day. It is admitted that this Panchayat was called at the instance of A1. The Panchayat was to be conducted in the evening. However, since the Pradhan of the Panchayat was indisposed, the Panchayat could not be held. Thereafter, PW-2, his sister Saroja (deceased), his wife Rani (PW-7), Murugan (PW-13) and Naveen Kumar, son of PW-2 and PW-7 stood outside the house of PW-2 talking amongst themselves. According to him, PW-13 had come to the village because of the Panchayat. While they were standing there, A1 came armed with a sickle (Koduval), A2 armed with an Iron Pipe, A3 armed with a sickle (Koduval) and A4 to A9 carrying thick wooden staffs in their hands. It is alleged that A1 attacked deceased Saroja with a sickle on the front portion of her head and said that it was only because of her that the younger sister of A1 has to live separately from her husband. A2 gave a blow on the back of the neck of Saroja with an iron pipe. The other accused are alleged to have attacked Saroja with wooden staffs in their hand. When the family members of Saroja tried to protect her, all the 9 accused surrounded her and, as such, they could not protect her. According to the eyewitnesses, they were also attacked by the members of the aggressive party. The version of all the eyewitnesses is similar.
3. However, there are some discrepancies with regard to the manner in which the said incident took place. According to PW-1, on the date of Panchayat, first a verbal altercation took place between the two sides and then the attack took place whereas, according to PW-2 and some of the other eyewitnesses, the attack took place without any provocation. We are of the considered view that for the purpose of deciding this appeal, we can even presume that there was some verbal altercation between the two sides.
4. The occurrence is not denied. The main defence is that there was a free fight on both sides and that there is no evidence to show that there is prior meeting of minds. The accused had not been convicted under Section 34 or Section 149 IPC and, therefore, each individual accused can only be convicted for the injury attributed to that individual. Therefore, it becomes relevant to refer to the medical evidence of the autopsy surgeon Dr. Rajamani, Assistant Surgeon (PW-3). The injuries are as follows:
“1. An Antemortem red, oblique lacerated wound measuring 6cm x 1cm x 1cm, exposing the bones over the left frontal region of scalp, 1 cm away from the midline with bleeding and blood clots. On Exploring the wound, echymosis seen behind the scalp over the frontal, parietal, temporal and back of skull. There is a fracture of frontal bone measuring 5 cm
