Sivamani and Another vs State Represented by Inspector of Police, Vellore Taluk Police Station, Vellore District

2023 INSC 1027 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3619 OF 2023 (@ SPECIAL LEAVE PETITION (CRL.) NO.5136 OF 2022)

SIVAMANI AND ANR. … APPELLANTS

APPELLANT NO.1: SIVAMANI APPELLANT NO.2: DINESH KUMAR

VERSUS

STATE REPRESENTED BY INSPECTOR OF POLICE, VELLORE TALUK POLICE STATION, VELLORE DISTRICT. … RESPONDENT

J U D G M E N T

AHSANUDDIN AMANULLAH, J.

Signature Not Verified Heard learned counsel for the parties. Digitally signed by GEETA AHUJA Date: 2023.11.28 17:09:40 IST Reason:

2. Leave granted.

2

3. The present appeal is directed against the

Final Order and Judgment dated 06.08.2021

(hereinafter referred to as the “Impugned Judgment”)

passed by the High Court of Judicature at Madras

(hereinafter referred to as the “High Court”) in

Criminal Appeal No.228 of 2015, whereby the appeal

filed by the appellants against their conviction by

the Trial Court under Section 307 of the Indian

Penal Code, 1860 (hereinafter referred to as the

“IPC”) and imposition of fine of Rs.1000/- each has

been confirmed, but the sentence of 10 years

Rigorous Imprisonment has been reduced to 5 years

Rigorous Imprisonment.

THE FACTUAL PRISM:

4. The appellants along with three others were

named by the Complainant in First Information Report

No.409/12 dated 15.09.2012 under Sections 294(b),

323, 324, 452 and 307 read with 109 of the IPC

accusing them of a conspiracy to cause the death of

the Complainant. Upon trial, the Accused Nos.1, 2 3

and 5 were acquitted and the appellants, who were

Accused Nos.3 and 4 were convicted under Section

307, IPC and sentenced to 10 years’ Rigorous

Imprisonment and fined Rs.1000/- each. The appeal

preferred by the appellants before the High Court

did not succeed in full, and only resulted in the

sentence of Rigorous Imprisonment being reduced from

10 years to 5 years. This gives rise to the present

appeal.

SUBMISSIONS BY THE APPELLANTS:

5. Learned counsel for the appellants submitted

that the case of the prosecution is that there was

previous enmity between the Complainant-Prakash

alias Chinnaraj/PW1 and Accused No.1. He detailed

the prosecution story as follows. It was submitted

that PW1 and Accused No.1 had a dispute concerning a

lane between their houses. A civil case in such

respect was also pending between them. During the

pendency of the suit, an Advocate Commissioner was

appointed through the Court, who measured the land 4

in dispute and allotted portions to Accused No.1 and

PW1. PW1 had put up fencing within the portion

allotted to him, and on account of this, Accused

No.1 used to quarrel with him. Fifteen days prior to

the incident, Accused No.1 had removed the fencing

and again picked up a quarrel with PW1 and

threatened to kill him. Pursuant thereto, Accused

No.1 conspired with the Accused Nos.2, 3, 4 and 5 to

put an end to the life of PW1. Consequently, on

15.09.2012, while PW1 was in his grocery shop, on

the instigation of Accused No.1, Accused Nos.2 and 5

along with the appellants (Accused Nos.3 and 4)

reached the shop. Accused No.2 is stated to have

abused PW1 in filthy and obscene language and beaten

him with force on his cheek by hand. The appellants

tried to attack PW1 with a knife, but PW1 escaped

from their attack and caught hold of the appellants’

hands, as a result of which, sustained abrasion

injuries on his right shoulder and left thumb. On

hearing this alarm, PW2-Indirani (PW1’s mother) came

to his rescue and at that time, the Accused No.5 5

attacked her with a cold drink bottle on her back,

causing a simple injury. Meanwhile, the neighbours

came to the scene of occurrence and tried to save

PW1 and on seeing them, the Accused Nos.2 and 5

escaped in an auto-rickshaw. The appellants were

caught by the villagers and were tied to a

streetlamp post. Thereafter, they were produced

before the respondent-police by the villagers.

6. However, it was pointed out that the

allegations against all the accused being more or

less similar in nature, the appellants could not

have been convicted under Section 307, IPC as the

doctor (PW13) itself found the injuries to be simple

in nature and not on any vital part of the body.

Moreover, it was submitted that there was no

intention to kill; neither there were repeated

blows, nor was it pre-planned, when admittedly there

was a civil suit pending between Accused No.1 and

PW1. It was submitted that even the prosecution

story would indicate that a quarrel had arisen 6

between the Accused No.1 and PW1, due to which a

complaint to the police was made by PW1, which

further aggravated the enmity. The appellants are

alleged to have come to the shop of the Complainant,

when he was alone, armed with one knife each and

attempted to attack the complainant on his neck but

he managed to escape unhurt. It was submitted that

had the appellants come with the motive to kill both

PW1 and PW2 and were armed with knives, they could

easily have ensured the death of the Complainant.

Learned counsel submitted that in any view of the

matter, there could have been some justification to

proceed against the appellants under Sections 323

and 324 of the IPC but not under Section 307, IPC,

as has been done. It was submitted that the two

victims had sustained only simple injuries, whereas

one victim-PW2 had complained that she had fallen

upon being attacked on her back but she did not

sustain any extraordinary injury and even that was

found to be simple in nature. Likewise, the other 7

victim PW1 sustained abrasion injuries on his right

shoulder and left thumb which are simple in nature.

SUBMISSIONS OF THE RESPONDENT-STATE/POLICE:

7. Learned counsel for the State submitted that

the appellants being armed with knives (one each)

clearly indicates that they intended to kill and it

was only due to providence that their lives were

saved.

ANALYSIS, REASONING AND CONCLUSION:

8. Section 307, IPC reads as under:

‘307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.—When any person offending under this section is 8

under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.

(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table.

A has committed the offence defined in this section.’

9. In State of Madhya Pradesh v Saleem, (2005) 5

SCC 554, the Court held that to sustain a conviction

under Section 307, IPC, it was not necessary that a 9

bodily injury capable of resulting in death should

have been inflicted. As such, non-conviction under

Section 307, IPC on the premise only that simple

injury was inflicted does not follow as a matter of

course. In the same judgment, it was pointed out

that ‘…The court has to see whether the act,

irrespective of its result, was done with the

intention or knowledge and under circumstances

mentioned in the section.’ The position that because

a fatal injury was not sustained alone does not

dislodge Section 307, IPC conviction has been

reiterated in Jage Ram v State of Haryana, (2015) 11

SCC 366 and State of Madhya Pradesh v Kanha, (2019)

3 SCC 605. Yet, in Jage Ram (supra) and Kanha

(supra), it was observed that while grievous or

life-threatening injury was not necessary to

maintain a conviction under Section 307, IPC, ‘The

intention of the accused can be ascertained from the

actual injury, if any, as well as from surrounding

circumstances. Among other things, the nature of the 10

weapon used and the severity of the blows inflicted

can be considered to infer intent.’1

10. Having considered the facts and circumstances

of the case and submissions of learned counsel for

the parties, this Court is convinced that the

Impugned Judgment of the High Court requires to be

interfered with. Admittedly, there is no allegation

of repeated or severe blows having been inflicted.

Even the injuries on PW1 and PW2 have been found to

be simple in nature, which is an additional point in

the appellants’ favour.

11. We are further inclined to accept the

submissions of the learned counsel for the

appellants that from the materials on record, only

offences under Sections 3232 and 3243 of the IPC can

1 Para 13 of Kanha (supra).

2 ‘323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.’ 3 ‘324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.’ 11

be made out. As such, the conviction under Section

307, IPC is unsustainable.

12. In the background of the discussions made

hereinabove and on taking an overall view, the

Impugned Judgment is varied only to the extent that

the conviction of the appellants stands modified to

that under Sections 323 and 324 of the IPC and the

sentence imposed is also reduced to the period

already undergone. The fine imposed is maintained.

The appellants stand discharged of the liabilities

of their bail bonds, if any.

13. The appeal is disposed of accordingly.

........................J. [VIKRAM NATH]

.........................J. [AHSANUDDIN AMANULLAH]

NEW DELHI;

NOVEMBER 28, 2023