Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.63 OF 2011
KRISHNAMURTHY .... APPELLANT(S)
VERSUS
STATE REP. BY THE INSPECTOR
OF POLICE .... RESPONDENT(S)
JUDGMENT
1. The instant appeal filed by the appellant- Krishnamurthy (Original
Accused no. 2) under Article 136 of the Constitution of India is directed
against the judgment and order dated 27.10.2009 passed by the High
Court of Judicature at Madras in Criminal Appeal No. 734 of 2008,
whereby the High Court had dismissed the appeal of the present
appellant and confirmed the judgment of conviction and sentence passed
against him by the Sessions Court, Cuddalore (hereinafter referred to as
the “Sessions Court”) in Sessions Case No. 101 of 2007.
Signature Not Verified
Digitally signed by
NEETA SAPRA
Date: 2022.09.09
17:43:55 IST
Reason:
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2. Initially, three accused named – Govindaraj, Krishnamurthy and Selvaraj
were charged and tried before the Sessions Court, which after
appreciating the evidence on record convicted and sentenced the accused
no. 1 – Govindaraj for the offences under Sections 294(b), 324 and 302
r/w Section 34 of IPC; convicted and sentenced the accused no. 2-
Krishnamurthy for the offence under Section 302 of IPC and convicted
and sentenced the accused no. 3- Selvaraj for the offence under Section
302 r/w Section 34 of IPC. The High Court in the appeal preferred by all
the three accused, vide the impugned judgment and order dismissed the
appeal of accused no. 2 i.e., the present appellant and modified the
judgment and order of conviction and sentence of accused no. 1 by
convicting him for the offence under Sections 324 and 294(b) of IPC and
sentenced him to undergo two years of rigorous imprisonment for the
offence under Section 324 of IPC, and to pay a fine of Rs. 500/- for the
offence under Section 294(b) of IPC. The High Court also modified the
judgement and order of conviction and sentence of accused no. 3, by
convicting him for the offence under Section 323 of IPC alone and
directing him to undergo simple imprisonment for a period of one year
for the said offence.
3.
The judgment and order passed by the High Court qua the accused nos. 1
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and 3 have neither been challenged by them, nor the State has preferred
any appeal against the impugned judgment acquitting the accused nos. 1
and 3 for the offence under Section 302 r/w Section 34 of IPC. The
present appeal has been filed only by the accused no. 2 challenging the
impugned judgment convicting him for the offence under Section 302 and
sentencing him to the life imprisonment.
4. The case of the prosecution in nutshell before the trial was that the
deceased – Samidurai and the accused were the neighbours in the village
– Elavathadi. Some quarrel had taken place between accused no. 1 and
the wife and the son of the deceased in respect of a missing goat
belonging to the deceased Samidurai. In the said quarrel on 13.03.2006,
accused no. 1 – Govindaraj assaulted the son of the deceased
Shanmugaperumal using an iron rod on his hands and biting him on his
cheek. On 14.03.2006 at about 2.00 a.m, all the three accused, with the
intent to assault the deceased and his family members, armed with an iron
pipe and wooden log, came to the house of the deceased by hurling
abusive filths against the family members of the deceased. The deceased
came out of his house and asked the accused as to why they were
shouting at such an odd hour. By that time, the accused no. 2 -
Krishnamurthy assaulted Samidurai on his head with a wooden log and
pushed him down, while the first accused- Govindaraj assaulted
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Samidurai who was lying on the ground using an iron pipe on his chest
and the third accused-Selvaraj also assaulted Samidurai by a wooden log
on the right side of his chest. When the family members of Samidurai
came to rescue him, all the accused threatened them with dire
consequences and ran away from the place. The said Samidurai
succumbed to injuries and died at about 04.15 p.m. on 14.03.2006. On
the complaint having been lodged by PW-1, son of the deceased, the
investigation was carried out and the chargesheet was filed against all the
three accused.
5.
The learned Advocate Mr. Senthil Jagadeesan appearing for the appellant-
accused no. 2 drawing the attention of the Court to the observations made
by the High Court submitted that the High Court while confirming the
conviction of the appellant for the offence under Section 302 has
observed that the act of the appellant was not done intentionally to cause
the death of the deceased. He also drew the attention of the Court to the
injuries suffered by the deceased, and submitted that by no stretch of
imagination could it be said that the appellant, who was armed with a
wooden log, had any intention to cause murder of deceased-Samidurai.
According to him, at the most it could be said that the appellant had
knowledge that such injuries was likely to cause death and, therefore, his
case should fall under Part II of Section 304 and not under Section 302 of
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IPC, more particularly, when the other two accused have not been
convicted by the High Court for the offence under Section 302 r/w
Section 34 of IPC. Learned Advocate Dr. Joseph Aristotle S. appearing
for the respondent-State, however, supporting the impugned judgment
passed by the High Court submitted that the findings recorded by the two
courts below convicting the appellant under Section 302 being just and
proper, this Court may not interfere with the same.
6. Having regard to the submissions made by the learned counsel for the
parties and to the evidence on record as also the findings recorded by the
Sessions Court and the High Court, it appears that appellant no. 2 though
has not specifically admitted, has not disputed the occurrence of the
incident in question. The only contention raised by the learned counsel
for the appellant is that considering the nature of injuries suffered by the
deceased and the alleged role of the appellant, he should have been
convicted and sentenced for the offence under Section 304 (II) and not
under Section 302 of IPC. Now, so far as the injuries suffered by the
deceased are concerned, PWs 2, 3, 5 and 6 had deposed in their respective
evidence that the appellant -accused no. 2 had attacked the deceased with
wooden log on his head, while accused no. 1 had attacked him with an
iron pipe and accused no. 3 had attacked the deceased with a wooden log
and by giving fist on his chest. PW-10 Dr. Ezhil, who had initially
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examined the deceased at the Government Hospital, had recorded the
history that there was an assault on him at about 2.00 a.m. with pipes and
sticks by three known persons, in front of his house. He had further stated
before the Court that the deceased was unconscious when he was brought
to the hospital. He had suspected head injuries. PW-11 who had
conducted the post-mortem of the deceased on 15.03.2006 had recorded
the injuries in the postmortem report at Exhibit P-8. In Exhibit P-8
amongst other injuries, following injuries were recorded:
rd th
i) Fracture of 3 and 4 ribs on the right side
ii)
Subdural hematoma present on the left frontal parietal region with
left frontal intra cerebral hemorrhage.
He had opined that the death of the deceased Samidurai was due to
shock and hemorrhage on account of head injuries and due to subdural
haematoma on the left frontal intra cerebral hemorrhage. He had stated
before the court that such injuries were possible with the use of weapons
like wooden log.
7. As stated earlier, the accused nos. 1 & 3 have not challenged their
conviction, nor the State has preferred any appeal against the findings
recorded by the High Court qua the said accused nos. 1 & 3. Hence, the
occurrence of the incident having not been challenged, the Court does not
deem it necessary to discuss the entire evidence. Suffice is to say that the
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involvement and alleged role played by each of the three accused by
attacking the deceased at the midnight hour on 13.03.2006 was duly proved
by the prosecution. At this juncture, it is pertinent to note that the High
Court in the impugned judgment has thought it fit not to convict the
accused nos. 1 and 3 for the offence under Section 302 r/w Section 34 of
IPC, while convicting the present appellant for the offence under section
302 IPC. We have our own reservations with regard to the said findings,
however, the State having not preferred any appeal against the said
findings, we do not think it proper to dwell much into the same, and that
too after about more than 12 years of the impugned judgment.
Interestingly, the High Court though had recorded that the act of accused
no. 2 was not done intentionally to cause the death of the deceased, yet has
convicted him for the offence under Section 302 of IPC sentencing him to
the life imprisonment.
8. In view of the above, and having regard to the role played by the appellant,
to the use of the weapons and to the injuries suffered by the deceased, we
are of the considered opinion that it could not be said by any stretch of
imagination that the appellant had an intention to cause such injuries to the
deceased-Samidurai so as to cause his death. In our opinion, at the most it
could be said that he had committed the alleged act with the knowledge
that such act was likely to cause death. Therefore, his case would fall under
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Section 304(II) of IPC and not under Section 302 IPC.
9. Accordingly, this appeal is allowed to the extent and in the manner that the
conviction of the appellant is altered to that of the offence punishable under
Section 304 Part II IPC. The appellant is accordingly sentenced to the
imprisonment for a term of 10 years and to pay a fine in the sum of Rs.
10,000/-. The appellant has already undergone imprisonment for a longer
term. Thus, the appellant may be released immediately.
10. The appeal stands disposed of accordingly.
.…………………………J
[DINESH MAHESHWARI]
……………………………J.
[BELA M. TRIVEDI]
NEW DELHI;
SEPTEMBER 01, 2022.
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ITEM NO.103 COURT NO.11 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 63/2011
KRISHNAMURTHY Appellant(s)
VERSUS
STATE REP. BY INSPECTOR OF POLICE Respondent(s)
Date : 01-09-2022 This appeal was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MS. JUSTICE BELA M. TRIVEDI
For Appellant(s) Mr. Senthil Jagadeesan, AOR
Mr. B. Karunakaran, Adv.
Ms. Sonakshi Malhan, Adv.
Mr. Sajal Jain, Adv.
Ms. Remya Raj, Adv.
Mr. Mrinal Kanwar, Adv.
For Respondent(s) Dr. Joseph Aristotle S., AOR
Ms. Nupur Sharma, Adv.
Mr. Shobhit Dwivedi, Adv.
Mr. Sanjeev Kumar Mahara, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Heard learned counsel for the parties and perused the
material placed on record.
For reasons to follow, this appeal is allowed to the
extent and in the manner that the conviction of the appellant is
altered to that of the offence punishable under Section 304 Part II
IPC. The appellant is accordingly sentenced to the imprisonment
for a term of 10 years and to pay a fine in the sum of Rs.10,000/-.
The appellant has already undergone imprisonment for a longer term.
Thus, the appellant may be released immediately.
The appeal stands disposed of accordingly.
(NEETA SAPRA) (BEENA JOLLY)
COURT MASTER (SH) COURT MASTER (NSH)
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