Krishnamurthy vs State Rep. By Inspector Of Police

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

Signature Not Verified the “Sessions Court”) in Sessions Case No. 101 of 2007. Digitally signed by NEETA SAPRA Date: 2022.09.09 17:43:55 IST Reason: 1

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

2 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

3 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

4 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

5 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:

i) Fracture of 3rd and 4th 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

6 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

7 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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