Swaminathan & Anr vs State Of Tamil Nadu

CRIMINAL APPEAL NO. 294 OF 2003

SWAMINATHAN & ANR. .. APPELLANT(S)

vs.

STATE OF TAMIL NADU .. RESPONDENT(S)

O R D E R

At about 9.30 a.m. on the 5th April, 1994 A.1

Ramasamy came to the wine shop of PW.3 Muthu Selvin and

enquired if his uncle Velan was present in the wine shop.

At that time Palanisamy deceased came riding a bicycle and

dashed against A.1. The same evening at about 3.00 p.m.

Palanisamy was going towards the field of Alagesan and as

he was passing in front of the house of A.1., A.1 came out and shouted at him and thereafter lifted a stick and hit

him on the head. A.2 Swaminathan and A.3 Raman who were

standing close by picked up stones lying on the spot and

hit the deceased on the cheek and forehead respectively.

The incident was witnessed by PW.1 Narayanan. He went and

informed Ganesan, the brother of the deceased, and

thereafter returned to the place of incident and found that

Palanisamy was dead. He accordingly lodged the report at

Police Station Theevattipatti, and case under Section 302

was registered at about 4.30 p.m. The dead body was also

subjected to a post mortem examination and nine injuries

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were detected thereon, seven allegedly caused by a lathi and two by stones. The Doctor also opined that the death

had been caused by a lathi injury and that the fatal injury

was injury No.1. The Trial Court relying on the evidence

of PW.1 (Narayanan), the only eye-witness, convicted the

accused A.1 under Section 304 Part II and sentenced him to

undergo three years' rigorous imprisonment. A.2 and A.3

were convicted and sentenced for the same offence and term

with the aid of Section 34 of the IPC. An appeal was

thereafter taken to the High Court which has confirmed the

conviction and sentence awarded by the Trial Court.

The present appeal has been filed by A.2 and A.3

alone.

Mr. K.K.Mani, the learned counsel for the appellants

has raised only one argument before us. He has urged that

even accepting the prosecution story in its entirety the

vicarious liability under Section 34 of the IPC could not be fastened on A.2 and A.3 as the facts did not indicate

so. He has pointed out that the incident had happened all

of a sudden when Palanisami was passing by the house of A.1

and there was absolutely no pre-planning and that he too

had caused several blows after picking the lathi from the

spot. It has also been submitted that the common intention

on the part of A.2 and A.3 had also not made out as they

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had come to the spot by chance and there was no prior

meeting of minds, and they had caused one simple injury each on the person of the deceased with stones picked up

from the site. He has accordingly submitted that the

conviction of the two appellants with the aid of Section 34

was not called for.

We have heard the learned counsel for the parties

and also gone through the evidence. Concededly, as per the

post mortem report, injury No.1 on the person of the

deceased was the fatal injury and had been caused by A.1

with a lathi. There is also no reference whatsoever to any

involvement of A.2 and A.3 in the incident in the morning.

It appears that A.2 and A.3 who had been either passing by

or were near the spot picked up stones on the spur of the

moment and caused a simple injury each. It is therefore

evident that A.2 and A.3 could not have had the knowledge

of involvement of A.1 in a situation where death could be

caused. We therefore feel that the conviction of A.2 and A.3 with the aid of Section 34 was not called for.

We accordingly allow the appeal and order their

acquittal. Their bail bonds shall stand cancelled.

.................J. (HARJIT SINGH BEDI)

....................J. (CHANDRAMAULI KR. PRASAD)

New

Delhi, January 12, 2011.