BABU AND ANR.versusSTATE REP. BY INSPECTOR OF POLICE, CHENNAI

                        [2013] 2 S.C.R. 438


A                        BABU AND ANR.
                                  v.
      STATE REP. BY INSPECTOR OF POLICE, CHENNAI
            (Criminal Appeal No. 353 of 2008 etc.)

                         MARCH 19, 2013.
B
            [A.K. PATNAIK AND H.L. GOKHALE, JJ.]

        PENAL CODE, 1860:

c       s.302134 and s.300, Exception 4 - Conviction by trial court
  of 5 accused uls 3021149 /PC - Acquittal of one accused by
  High Court - Held: The evidence of eye-witness makes it clear
  that the deceased was attacked by the four appellants in
  furtherance of their common intention and, as such, they all
D were liable uls 302134 for causing this death - Further,
  deceased was unarmed and the accused-appellants were
  armed with knives and attacked him even after he fell down -
  They took undue advantage and acted in cruel and unusual
  manner towards the deceased - Besides, keeping in view the
E injuries on the deceased, Exception 4 to s.300 is not attracted
  - Conviction and sentence of appellants u/s 302134 upheld.
       The four appellants along with two others were
  prosecuted for committing offences punishable u/ss 147,
  148, 341, 324 and 302 IPC. The prosecution case was that
F there was previous enmity between 'R' the younger
  brother of the informant (PW-1) and 'E', one of the
  accused-appellant. On 25.1.2004 at around 5.30 P.M., 'E'
  telephoned the wife of 'R' and threatened her. At about
  10.15 p.m. 'R' asked 'E' about this, whereupon 'E' and his
G companions attacked 'R' and PW-1 with knives. 'R' died
  on the spot. The trial court convicted A-1, A-2, A-3 and A·
  4 u/ss 148, 324/149 and s.302/149 IPC; and A-6 u/ss 147,
  324/149 and 302/149 IPC. However, A-5 was acquitted of
  all the charges. High Court further acquitted A-6, but
H                                438
BABU AND ANR. v. STATE REP. BY INSPECTOR OF 439
             POLICE, CHENNAI
maintained the conviction of A-1, A-2, A-3 and A-4.           A

     In the instant appeals filed by the convicts, it was,
inter alia, contended for the appellants that on acquittal
of two accused, conviction of the four appellants u/s 302/
149 ICP was not sustainable; that there was doubt about B
the date, time and place of registration of FIR; that there
were discrepancies in the evidence of PW-1, PW-2 and
PW-3. Alternatively, it was contended that the offence   '
committed by the appellants would fall under Exception
4 to s.300 IPC and as such they would, at best, be liable C
u/s 304 IPC.

    Dismissing the appeal, the Court

     HELD: 1.1 On the evidence, the conviction of the
appellants u/s 302, IPC can be sustained without the aid 0
of ss.141 and 149, IPC. The evidence of PW-1, PW-2 and
PW-3 makes it clear that the deceased was attacked by
A-1, A-2, A-3 and A-4 in furtherance of their common
intention and, therefore, all the four accused persons (the
appellants) were liable for the criminal act of causing the E
death of the deceased u/s 302 read with s. 34, IPC, as if
the criminal act was done by each of them alone. [para
13] [448-B-E-F]

    Dhanna etc. v. State of M.P. 1996 (4) Suppl. SCR 28   =
(1996) 10 SCC 79 ·relied on.                                  F

     1.3 As regards the discrepancies in the eye-witness
account of the occurrence given by PW-1, PW-2 and PW-
3, these witnesses were examined more than one and a
half years after the incident and it was natural for them G
to differ in some respects of what they saw and what
they remembered. [para 14] [449-A·B]

    State of Rajasthan v. Smt. Kalki and Another 1981 (3)
SCR 504   =(1981) 2 sec 752 • relied on.
                                                              H
    440     SUPREME COURT REPORTS              (2013] 2 S.C.R.

A      1.4 With regard to the registration of the FIR, the
  Inspector of Police who has been examined as PW-13
  has stated very clearly in his evidence that on 25.01.2004
  at 10.45 pm when he was at the Police Station, PW-1
  lodged a complaint and he wrote it down and read it over
B to PW-1, obtained his signature and registered the case.
  The evidence of PW-13 is supported by the evidence of
  PW-1. On a reading of the evidence of PW-1, in its entirety,
  one can only come to the conclusion that the FIR was
  lodged by PW-1 on 25.01.2004 soon after the incident
c between 10.30 p.m. to 11 p.m. but PW-1 was confused as
  to the designation of the officer before whom he lodged
  the FIR, the Sub-Inspector or the Inspector. Therefore,
  there is no doubt that the FIR was lodged at the Police
  Station within half an hour of the incident on 25.01.2004.
D [para 15] [449-E-F-H; 450-B-C1
        Meharaj Singh (UNk.) etc. v. State of U.P. (1994) 5 SCC
    188 - distinguished.
       1.5 In the instant case, there is no evidence to show
E that the deceased was armed in any manner when he
  questioned A-1 as to why he had threatened his wife. On
  the other hand, the appellants were armed with knives
  and attacked the deceased on his head and face even
  after he fell down. Thus, A-1, A-2, A-3 and A-4, who were
F the offenders, have taken undue advantage and acted in
  a cruel and unusual manner towards the deceased.
  Besides, there were six injuries on the head and face of
  the deceased. Thus, Exception 4 to s.300 IPC is not
  attracted. [para 17-18] [451-A-D-F]
G      1.6 Considering the nature of the injuries, there is no
  doubt that the common intention of A-1, A-2, A-3 and A-4
  was to cause the death of the deceased. Accordingly, A-
  1, A-2, A-3 and A-4 (the appellants) were guilty of the
  offences punishable u/s 302 read withs. 34, IPC. [para
H 18] [452-E-F]
 BABU AND ANR. v. STATE REP. BY INSPECTOR OF 441
              POLICE, CHENNAI
    Felix Ambrose D'Souza v. State of Kamataka (2009) 16        A
SCC 361, State of Andhra Pradesh v. Thummala Anjaneyulu
                     =
2010 (14) SCR 925 (2010) 14 sec 621 and Veeran and
Others v. State of Madhya Pradesh 2011 (5) SCR 300          =
(2011) 11 sec 367 - cited.
                                                                B
                    Case Law Reference:

    (1994) 5 sec 188              distinguished   para 8

     2009 (16) sec 361            cited           para 10

    2010 (14) SCR 925            -cited           para 10       c
    2011 (5) SCR 300              cited           para 10

    1996 (4) Suppl. SCR 28        relied on       para 13

    1981 (3) SCR 504              relied on       para 14       D

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 353 of 2008.

    From the Judgment & Order dated 06.09.2007 of the High
Court of Judicature at Madras in Crl. A. No. 552 of 2006.       E

                                WITH
Crl. A. Nos. 358-359 of 2008.

    P.R. Kovilan Poonakuntran, Geetha Kovilan, Anjani           F
Aiyagari Ram Lal Roy, K. Ramkumar (for K. Ramkumar &
Associates) for the Appellants.

    B. Balaji, R. Rakesh Sharma, P. Krishna Moorthy, M.
Yogesh Kanna for the Respondent.
                                                                G
    The Judgment of the Court was delivered by

    A.K. PATNAIK, J. 1. These are appeals against the
judgment dated 06.09.2007 of the Division Bench of the
                                                                H
     442      SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A Madras High Court in Criminal Appeal Nos.641, 551 and 552
  of 2006.
     FACTS

          2. The facts very briefly are that on 25.01.2004 at 22:45
 B hours, Dhanaprabhu (hereafter referred to as the 'informant')
    lodged a First Information Report in Police Station K.4, Anna
    Nagar. In this First Information Report, the informant stated: his
    father and he had been running a plastic company in the name
    of 'Economic Plastic Industries' and his younger brother, Ravi,
 C is also in the said busines~. There was previous enmity
    between Ravi and one Elumalai and on 25.01.2004 at around
    5.30 p.m. Elumalai telephoned to the wife of Ravi,
    Vijayalakshmi, and threatened her saying 'Ask your husband
    to behave or else, things will be different' and Vijayalakshmi
  D informed this to her husband Ravi. On the same day, at around
     10.00 p.m., the informant, Ravi and his friend Gubendiran were
    on their way to Naduvankarai Pillaiyar Kevil Street, through the
    Naduvankarai Bridge. While crossing the Seema Matriculation
     School at around 10.15 in the night, they saw Elumalai, and
  E Ravi asked Elumalai as to why he telephoned to his wife and
    threatened her, and at once Elumalai and Prakash retaliated
     and took out knives from their hips and hacked Ravi on his
     head. Ravi's head got cut and smashed and Ravi fell down in
     a pool of blood. Gubendiran, who attempted to prevent the
  F attack, was hacked by Prakash with a knife and this was
     intercepted by Gubendiran with his left hand and Gubendiran
     started bleeding. Thereafter, Babu, Senthil and Nagaraj, who
    were with Elumalai, hacked on the head of Ravi with their knives
     and all of them ran away with their knives towards the East and
     Ravi died on the spot. Pursuant to the FIR, a case was
I G registered under Sections 147, 148, 341, 324 and 302 of the
     Indian Penal Code, 1860 (for short 'the IPC'). After investigation,
     a charge-sheet was filed against Elumalai (A-1), Prakash (A-
     2), Babu (A-3), .Senthil (A-4), Nagaraj (A-5) and Udaya (A-6).
 H
 BABU AND ANR. v. STATE REP. BY INSPECTOR OF 443
       POLICE, CHENNAI [A.K. PATNAIK, J.]
      3. At the trial, the informant was examined as PW-1. A
 Gubendiran, who accompanied Ravi on 25.01.2004 to the
 place of occurrence and witnessed the occurrence and got
 injured, was examined as PW-2. Nagarajan, who had gone in
 search of Ravi on 25.01.2004 at about 10 O' clock in the night
 and come to the place of occurrence, was examined as PW- B
 3. On the basis of the evidence of PW-1, PW-2 and PW-3 as
 well as other witnesses, the trial court convicted A-1, A-2, A-3
 and A-4 under Sections 148 and 324 IPC read with Section
 149 IPC and Section 302 IPC read with Section 149 IPC and
 also convicted A-6 under Sections 147 and 324 IPC read with c
 Section 149 IPC and Section 302 IPC. The trial court, however,
 acquitted A-5 of all the charges. Aggrieved, the appellants filed
 Criminal Appeal Nos. 509, 641, 551 and 552 of 2006 before
 the High Court and by the impugned judgment, the High Court
 acquitted A-6 (the appellant in Criminal Appeal No. 509 of
                                                                   0
 2006), but maintained the convictions of A-1, A-2, A-3 and A-
 4. Aggrieved, A-1, A-2, A-3 and A-4 have filed these criminal
 appeals.
 CONTENTIONS ON BEHALF OF THE PARTIES
                                                                  E
       4. Mr. P.R. Kovilan Poonakunpran, learned counsel
   appearing for A-3 and A-4, the appellants in Criminal Appeal
, No. 353 of 2008, and Mrs. Anjani Aiyagari, learned counsel
' appearing for A-1 and A-2, the appellants in Criminal Appeal
  Nos. 358-359 of 2008, submitted that originally eight accused F
   persons were charged for the offence under Section 302 read
  with 149 of the IPC, but two of these accused persons were
  juveniles and were proceeded against under the Juvenile
  Justice (Care and Protection of Children) Act, 2000, and out
  of the remaining five accused persons, the trial court acquitted
  A-5 and the High Court acquitted A-6 and there remain only G
  four accused persons ~A-1 to A-4) who have been convicted
  under Section 302/149 of the IPC. They submitted that for a
  conviction under Section 302 of the IPC with the aid of Section
  149 of the IPC, a minimum of five accused persons have to
  form an unlawful assembly with the common object of causing H
    444      SUPREME COURT REPORTS                 [2013] 2 S.C.R.

A the death of a person and in this case since after the acquittal
  of A-6 by the High Court, there are only four accused persons,
  the conviction under Section 302/149 of the IPC is not
  sustainable. In support of this submission, they relied on the
  decision of this Court in Mohan Singh and Another v. State
s of Punjab (AIR 1963 SC 174), Shaji and Others v. State of
  Kera/a [(2011) 5 SCC 423] and Raj Kumar alias Raju v. State
  of Uttarancha/ (now Uttarakhand) [(2008) 11 SCC. 709].

       5. Learned counsel for the appellants next submitted that
  the offence under Section 302 of the IPC is in Chapter XVI of
C the IPC titled "Of Offences Affecting the Human Body'', whereas
  Sections 141and149 of the IPC are in Chapter VIII of the IPC,
  which is titled "Of Offences against the public tranquility''. They
  submitted that the provisions relating to unlawful assembly thus
  deal with offences against public tranquility and can have no
D application to offences against the human body and therefore
  the High Court is not right in maintaining the conviction of the
  appellants under Section 302 of the IPC with the aid of Section
  149 of the IPC.

E      6. Learned counsel for the appellants argued that the very
  foundation of the prosecution case is that on 25.01.2004 at
  about 5.30 p.m. A-1 had telephoned to the wife of the deceased
  and threatened her and the wife of the deceased informed the
  deceased and at 10.00 p.m. on the same day the deceased
F along with PW-1 and PW-2 went to the place where the incident
  took place, but the prosecution has not been able to prove that
  there was a telephone in the house of the deceased. In this
  context, learned counsel for the appellants referred to the
  evidence of the Investigating Officer, PW-13, to the effect that
  he had not enquired whether the deceased had a telephone
G facility at his residence. They submitted that since the
  foundation on which the prosecution cas.e begun has not been
  proved, the trial court and the High Court should not have held
  the appellants guilty.
H         7. Learned counsel for the appellants submitted that the
 BABU AND ANR. v. STATE REP. BY INSPECTOR OF 445
       POLICE, CHENNAI [A.K. PATNAIK, J.]
evidence of PW-1, PW-2 and PW-3, who claim to be eye- A
witnesses, should not have been believed by the trial court and
the High Court to convict the appellants. They submitted that
only PW-2 was with the deceased at the time of the occurrence,
and PW-1 in fact came to the place of occurrence in search of
the deceased after the occurrence had taken place. They B
submitted that there were discrepancies in the evidence of PW-
 1, PW-2 and PW-3. They pointed out that while PW-1 has
stated that when the incident took place there were 40 persons
at the place of occurrence, PW-2 has stated that there was
nobody nearby except the accused persons and PW-3 has c
stated that he has neither seen PW-1 nor PW-2 at the place of
occurrence. Learned counsel for the appellants submitted that
the truth is that PW-2 had earlier named someone else as the
accused, but he was put up in the lockup and pressurized by
the police to name the appellants as the accused persons. They 0
referred to the evidence of PW-2 to show that he was actually
put in the lockup for five days and that he had given the oral
complaint to the authorities in this regard.
      8. They further submitted that there were several doubts
with regard to the date and time when the FIR was lodged as E
well as the place where the FIR was lodged. They referred to
the evidence of PW-10, the Head Constable of K.4 Police
Station where the FIR was registered, to show that he has not
stated that the FIR was registered at the Police Station. They
submitted that PW-1 has also stated in his evidence that when F
he went between 10.30 p.m. and 11.00 p.m. to the Police
Station to lodge the FIR, he saw the Sub-Inspector and the Sub-
Inspector wrote the FIR, but he admits that he does not know
the name of the Sub-Inspector and that he saw the Inspector
on the next day and on the day when he lodged the FIR, he did G
not see the Inspector. On the other hand, the FIR (Ext. P-21)
shows that the Inspector of Police had himself signed the FIR
on 25.01.2004. They cited the decision of this Court in Meharaj
Singh (UNk.) etc. v. State of U.P. ((1994) 5 SCC 188] for the
proposition that where there is delay in lodging of the FIR, there H
   446      SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A is danger of introduction of a false prosecution story as an
  afterthought.

       9. Learned counsel for the appellants submitted that the
  investigation was defective inasmuch as the knives (MO 1 to
  MO 5), which were alleged to have been used on the deceased
8
  by the appellants and recovered by the Police, have not been
  examined by finger print experts to find out the real accused
  persons. They submitted that the appellants should be acquitted
  of the charge under Section 302/149 of the IPC for the same
C reasons for which A-5 and A-6 have been acquitted by the trial
  court and the High Court.

       10. Finally, learned counsel for the appellants submitted
  that the evidence led through PW-1, PW-2 and PW-3, in any·
  case, shows that after provocation by the deceased there was
D a sudden fight between the accused persons on the one hand,
  and the deceased, PW-2 and PW-3, on the other hand, and
  therefore the offence allegedly committed by the appellants falls
  under Exception 4 to Section 300 of the IPC and the appellants
  are at best to be guilty of culpable homicide not amounting to
E murder and are liable to punishment under Section 304 of the
  IPC. They submitted that the appellants have already undergone
   11 years of imprisonment and should now be set at liberty. In
  support of this submission, they relied on the decisions of this
  Court in Felix Ambrose D'Souza v. State of Kamataka [(2009)
F 16 SCC 361], State of Andhra Pradesh v. Thummala
  Anjaneyulu [(2010) 14 SCC 621] and Veeran and Others v.
   State of Madhya Pradesh [(2011) 11 SCC 367].
        11. In reply, learned counsel for the State, Mr. V. Balaji,
  submitted that both the trial court and the High Court have
G believed the evidence of PW-1, PW-2 and PW-3 and there is
  no good ground shown for this Court to discard the evidence
  of the aforesaid three eye-witnesses. He further submitted that
  it is not correct that the deceased did not have a telephone at
  his house as the evidence of PW-1 would show that
H
 BABU AND ANR. v. STATE REP. BY INSPECTOR OF 447
       POLICE, CHENNAI [A.K. PATNAIK, J.]
Vijayalakshmi, the wife of the deceased, had a cell phone. He        A
further submitted that PW-2 is a witness who was injured in the
occurrence and this will be clear from the FIR in which it is
stated that PW-2, who attempted to prevent the attack on the
deceased, was hacked by Prakash with a knife and as a result
he got a cut on the left hand. He submitted that the                 B
discrepancies in the evidence of PW-1, PW-2 and PW-3
pointed out by the learned counsel for the appellants, if any, are
not material and in any event do not belie the prosecution case
against the appellants that the knives with which the offence was
committed (MO 1 to MO 5) have not been examined by finger            C
print experts. He further submitted that the FIR also
corroborated the substantive evidence of PW-1, PW-2 and
PW-3 and was registered within half an hour of the incident
without any delay. He submitted that the contention of the
appellants that date and time of the lodging of the FIR was          D
doubtful has no substance as would be clear from Exts. P-1 and
P-21 as well as the evidence of PW-1 and PW-13.
      12. In reply to the contention of the appellants that the
appellants are at best guilty of culpable homicide not amounting
to murder under Section 304 of the IPC, he submitted that a          E
perusal of the post mortem report (Ext. P-7) and the evidence
of the Doctor who conducted the postmortem, PW-7, would
show that there were multiple injuries on the face and head of
the deceased on account of which the deceased died. He
argued that the injuries were of a very grave nature and would       F
in the ordinary course cause death of a person and therefore
the appellants by causing the injuries intended to cause the
death of the deceased and are guilty of the offence under
Section 302 of the IPC.
                                                                     G
FINDINGS OF THE COURT

     13. It is not necessary for us to deal with the contention of
the learned counsel of the appellants that the provisions of
Sections 141 and 149, IPC, relating to unlawful assembly would
not be attracted in case of offences affecting the human body        H
    448     SUPREME COURT REPORTS                  [2013] 2 S.C.R.

A such as the offence under Section 302, IPC, nor is it necessary
  for us to deal with the contention of the appellants that after the
  acquittal of A-5 and A-6 by the trial court and the High Court
  respectively, there were only four accused persons and for
  constituting 'unlawful assembly', a minimum of five persons are
8 necessary because we find from the evidence that the
  conviction of A-1, A-2, A-3 and A-4, the appellants herein, under
  Section 302, IPC can be sustained without the aid of Sections
  141 and 149, IPC. PW-1 has stated that at 10.25 p.m. on
  25.01.2004, they saw that A-1 and A-2 had threatened the
C deceased and at that time A-2 was standing close to A-1 and
  when the deceased abused A-1, all of them hacked the
  deceased on his head and the deceased swooned and fell
  down and at once A-1, A-2, A-3 and A-4 along with three others
  attacked the deceased with the knives. PW-2 has similarly
  stated that when the deceased asked A-1 as to why he was
D threatening his wife by phone, at once A-1 took out his knife
  from his hip and hacked the deceased and the deceased fell
  down and A-1 cut his head and face and thereafter A-1, A-2,
  A-3, A-4 and three other persons hacked the deceased. PW-
  3 has also stated that when he went to Naduvankarai to meet
E the deceased, A-1 and A-2 hacked the deceased and the other
  accused persons kicked the deceased and tortured the
  deceased and the accused were armed with knives. Thus, the
  evidence of PW-1, PW-2 and PW-3 makes it clear that the
  deceased was attacked by A-1, A-2, A-3 and A-4 in furtherance
F of their common intention and therefore all the four accused
  persons (the appellants) were liable for the criminal act of
  causing the death of the deceased under Section 34, IPC, as
   if the criminal act was done by each of them alone. In Dhanna
   etc. v. State of M.P. [(1996) 10 SCC 79], this Court has held
G that where the Court finds that the strength of the assembly was
  insufficient to constitute it into "unlawful assembly", but the
  remaining persons who participated in the crime had shared
  common intention with the main perpetrators of the crime, the
  Court can take the aid of Section 34 of the IPC even if the said
H Section was not specifically mentioned in the- charge.
BABU AND ANR. v. STATE REP. BY INSPECTOR OF 449
      POLICE, CHENNAI [A.K. PATNAIK, J.]
     14. We have considered the discrepancies in the eye- A
witnesses account of the occurrence given by PW-1, PW-2 and
PW-3 pointed out by the learned counsel for the appellants with
regard to the names and number of persons who were present
at the place of occurrence when the incident took place on
25.01.2004, but we find that PW-1, PW-2 and PW-3 were B
examined on 21st September, 2005 more than one and a half
years after the incident and it was natural for them to differ in
some respects of what they saw and what they remember. As
has been held by this Court in State of Rajasthan v. Smt. Kalki
and Another [(1981) 2 SCC 752]. in the depositions of c
witnesses there are always normal discrepancies however
honest and truthful the witnesses may be and these
discrepancies are due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of occurrence, 0
and the like.

      15. We have also considered the contention of the learned
 counsel for the appellants that it is doubtful that the FIR was
 registered at the Police Station and that the FIR may not have
 been registered on 25.01.2004 but on the next day when PW- E
 1 met the Inspector of the Police Station. We, however, find that
the Inspector of Police who has been examined as PW-13 has
stated very clearly in his evidence that on 25.01.2004 at 10.45
pm when he was at the Police Station, PW-1 lodged a
complaint and he wrote down that complaint and read it over F
to PW-1 and obtained his signature and registered Crl No.181/
2004 under Sections 147, 148, 341, 324 and 302, IPC. The
complaint written by PW-1 has been marked as Ext.P-1 and
the printed FIR prepared by PW-13 has been marked as Ext.P-
21. PW-13 has further stated that the printed FIR was sent to G
the 5th Metropolitan Magistrate and the copies were sent to the
higher officials concerned and immediately he visited the place
of occurrence at 11.30 p.m. The evidence of PW-13 is
supported by the evidence of PW-1 who has stated that after
his brother died, he informed his house and informed the police H
    450     SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A at K.4 Anna Nagar Police Station and the police came and
  saw the place at which the murder was committed. In his cross
  examination, however, he has stated that Sub-Inspector had
  written the FIR and that he did not know the name of the Sub-
  Inspector and he saw the Inspector on the next day and when
B he lodged the complaint he has not seen the Inspector. On a
  reading of the evidence of PW-1, in its entirety, one can only
  come to the conclusion that the FIR was lodged by PW-1 on
  25.01.2004 soon after the incident between 10.30 p.m. to 11
  p.m. but PW-1 was confused.as to the designation of the officer
c before whom he lodged the FIR, the Sub-Inspector or the
  Inspector. We have, therefore, no doubt that the FIR was lodged
  at the K.4 Police Station within half an hour of the incident on
  25.01.2004. Hence, the decision of this Court in Meharaj Singh
  (UNk.) etc. v. State of U.P. (supra) that where there is delay in
  lodging of the FIR, there is danger of introduction of a false
0
  prosecution story does not apply to the facts of the present
  case.
       16. We also do not find any merit in the submission of
  learned counsel for the appellants that there was no evidence
E to show that at the residence of the deceased there was a
  telephone through which the wife of the deceased received the
  threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has
  stated that the wife of the deceased Vijayalakshmi had a
  mobile phone and A-1 had talked over cell phone to
F Vijayalakshmi. Similarly, we do not find any merit in the
  submission of learned counsel for the appellants that the
  prosecution case should not be believed as the knives (MO 1
  to MO 5) which have been recovered had not been examined
  by the finger print experts to find out the real accused persons
G because in this case there is direct evidence of three eye
  witnesses, PW-1, PW-2 and PW-3, to establish beyond
  reasonable doubt that the appellants had struck the deceased
  with knives. If a defect in the investigation does not create a
  reasonable doubt on the guilt of the accused, the Court cannot
H
BABU AND ANR. v. STATE REP. BY INSPECTOR OF 451
      POLICE, CHENNAI [A.K. PATNAIK, J.]
discard the prosecution case on the ground that there was           A
some defect in the investigation.

      17. We are also not convinced with the submission of the
learned counsel for the appellants that this was a case which
fell under Exception 4 to Section 300, IPC. Exception 4 to          B
Section 300, IPC is quoted hereinbelow:

     "Exception 4. Culpable homicide is not murder if it is
     committed without premeditation in a sudden fight in the
     heat of passion upon a sudden quarrel and without the
     offender having taken undue advantage or acted in a cruel      C
     or unusual manner."

The language of Exception 4 to Section 300 is, thus, clear that
culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a
                                                                    0
sudden quarrel provided the offender has not taken undue
advantage or acted in a cruel or unusual manner. In this case,
there is no evidence to show that the deceased was armed in
any manner when he questioned A-1 as to why he had
threatened his wife. On the other hand, the appellants were
armed with knives and attacked the deceased on his head and         E
face even after he fell down. Thus, A-1, A-2, A-3 and A-4, who
were the offenders, have taken undue advantage and acted in
a cruel and unusual manner towards the deceased who is not
proved to have been armed.
                                                                    F
      18. Moreover, we find from the evidence of PW-7, the
doctor who conducted the post mortem of the deceased on
26.01.2004 at around 12.45 hours, that he found as many as
six injuries on the head and face of the deceased. These injuries
are extracted hereinbelow:                                          G
    "Injury 1: A bruised injury in red colour admeasuring 3x2
    cm on the left cheek and in 2x2 cm at the tip of the nose.

    Injury 2: An oblique incised injury 3x0.05 cm bone deep
    on the lower jaw.                                               H
    452       SUPREME COURT REPORTS                    [2013] 2 S.C.R.

A          Injury 3: An incised injury vertical, 2x0.5 cm bone deep on
           th4 left side of the lower jaw.
           Injury 4: An incised injury, oblique 3x05 cm muscle deep
           on the lower lip on its right side.
B          Injury 5: Several incised injuries crosswise and longitudinal.
           On opening it, it was found that the tissues on the cranium
           were found bruised and the bones of the skull fractured and
           brain smashed and visible from outside.

c          Injury 6: An incised injury seen horizontally and gaping in
           between the eyes, 22x6 cm. on dissecting, it was found
           that, all the tissues, nerves and blood vessels had got cut
           the face was smashed and the upper jaw bone and the
           lower jaw bone crumbled. Both the eyes had got
           completely smashed and seen outside the eye-sockets.
D
           The teeth in the upper jaw and those of the lower jaw were
           broken and some fallen."
  PW-7 has further stated that due to these injuries sustained on
  his head and face, the deceased would have died as has been
E expressed by him in the post mortem report Ext.P-7.
  Considering the nature of the injuries and, in particular, injury
  nos.5 and 6, we have no doubt that the common intention of
  A-1, A-2, A-3 and A-4 was to cause the death of the deceased.
  Accordingly, A-1, A-2, A-3 and A-4 (the appellants) were guilty
F of the offences under Section 302 read with Section 34, IPC.

        19. In the result, we find no merit in the appeals and we
    accordingly dismiss the same.
    R.P.                                           Appeals dismissed.