GURU @ GURUBARAN & ORS.versusSTATE REP. BY INSP. OF POLICE

1064                     [2019] 12
                SUPREME COURT      S.C.R. 1064
                                REPORTS                     [2019] 12 S.C.R.


 A                      GURU @ GURUBARAN & ORS.
                                         v.
                       STATE REP. BY INSP. OF POLICE
                        (Criminal Appeal No.1893 of 2010)
 B                            SEPTEMBER 27, 2019
             [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
              Penal Code, 1860 – ss. 302, 323 and 324 – Murder – There
       was some dispute between the parties – Prosecution case was that
 C     panchayat was called to settle the dispute – Since, Pradhan of the
       Panchayat was indisposed, the Panchayat was not held – Thereafter,
       PW-2, his sister victim-deceased, his wife PW-7, PW-13 and son of
       PW-2 were standing outside the house of PW-2 and talking among
       themselves – While they were standing, all accused persons (A-1,
       A-2, A-3, A-5 and A-9) came armed with sickles, iron pipe and
 D     wooden staffs and attacked victim – Victim died – High Court
       convicted A-1 & A-2 u/s. 302 IPC, A-3 u/s. 324 IPC and A-5 & A-9
       u/s. 323 IPC – Accused contended that there was a free fight on
       both sides and that there was no evidence to show that there was
       prior meeting of minds and further urged that offence was not of
 E     murder but culpable homicide not amounting to murder – Held: The
       version of all the eye-witnesses against the accused persons was
       similar – Medical evidence also fully corroborated the version of
       all the eye-witnesses – Insofar benefit of Exception 4 to s.300 is
       concerned, evidence indicated that all accused persons came armed
       – The fact they were armed indicated that the occurrence did not
 F     take place in the heat of passion, upon a sudden quarrel – A-1 had
       hit the deceased on head with a sickle with such a great force causing
       fracture of the skull, bringing the case within clause ‘Fourthly’ of
       s.300 IPC – Therefore, there is no reason to alter the sentence and
       conviction of A-1 – However, A-2 had given blow with an iron pipe
 G     on back of the neck of the deceased, which only caused abrasions
       – Therefore, his conviction u/s.302 altered to s.324 IPC – Insofar
       as conviction of A-3, A-5 and A-9 is concerned, there is no reason
       to interfere with the judgment of the High Court.


 H
                                       1064
   GURU @ GURUBARAN & ORS. v. STATE REP. BY INSP.                      1065
                  OF POLICE

      Disposing of the appeals, the Court                              A
      HELD: 1. The doctor states that the injuries caused the
death of the victim. The first injury is a lacerated wound and it is
urged by the accused persons, that this injury could not have
been caused by sickle (Koduval), which is a sharp-edged weapon.
A sickle is an instrument mainly meant for cutting grass and crops.    B
The inner side is sharp but the outer side is blunt. While using it
as an instrument of agriculture only, the sharp edge is used but
while using it as a weapon of offence, more often than not, it will
be the outer side which will be used to hit the victim. The doctor
has opined that the injury could have been caused by a sickle
which is MO-1 and, therefore, the medical evidence fully               C
corroborates the version of all the eye-witnesses. [Para 5]
[1068-G-H; 1069-A]
      2. The accused cannot take benefit of Exception 4 to s.300
IPC. It has come in evidence that all the accused persons came
armed. Two were armed with sickles, one with an iron pipe and          D
the other with wooden staffs. Even if it is assumed that they may
not have come with the intention of killing, the fact that they
were armed, clearly indicates that the occurrence did not take
place in the heat of passion, upon a sudden quarrel. As pointed
earlier, both sides were coming to attend a Panchayat to settle a      E
dispute. Where was the need to carry arms if the intention was
only to settle a dispute? Even otherwise, Exception 4 is not
applicable because the manner in which the blow was given right
on the middle of the head, brings this case squarely within clause
“Fourthly” of Section 300 IPC. [Para 7] [1069-D-E]
                                                                       F
       3. A-1 should have known that the act which he is
performing, of hitting the deceased on the head with a sickle
with such great force causing fracture of the skull, is so dangerous
that it would have imminently caused death. Therefore, there is
no reason to alter the sentence or conviction of A-1.
[Para 8] [1070-A]                                                      G
      4. However, as far as A-2 is concerned, since the High Court
has held that neither Section 34 nor Section 149 IPC are
applicable, each accused will only be responsible for his own acts
and injuries. In this behalf, reference was made to a judgment of
                                                                       H
1066            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


 A     this Court in the case of Atmaram Zingaraji vs. State of
       Maharashtra. There is no appeal by the State. As far as A-2 is
       concerned, he is alleged to have given a blow with an iron pipe
       on the back of the neck of the deceased. This resulted in injury
       numbers 2 and 3. They are merely abrasions and could not have
       caused death. Therefore, the accused can only be held guilty of
 B
       having committed the offence under Section 324 IPC. He has
       already undergone imprisonment for around 11 years and,
       therefore, his conviction under Section 302 IPC is altered to
       Section 324 IPC and the sentence is reduced to the period of
       incarceration already undergone. As far as A-3, A-5 and A-9 are
 C     concerned, this Court finds no reason to interfere with the
       judgment of the High Court as each has been held guilty for the
       offence which they have committed. [Para 9] [1070-B-E]
             Atmaram Zingaraji v. State of Maharashtra (1997) 7
             SCC 41 : [1997] 3 Suppl. SCR 432 – referred to.
 D                              Case Law Reference
             [1997] 3 Suppl. SCR 432        referred to        Para 9
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
       No.1893 of 2010
             From the Judgment and Order dated 10.02.2009 of the High Court
 E     of Judicature at Madras in Criminal Appeal No. 615 of 2000
             S. Nagamuthu, Sr. Adv., B. Balaji, S. Arun Prakash, Satya Mitra
       Garg, Advs. for the Appellants.
             Jayanth Muth Raj, Sr. Adv.(AAG), M. Yogesh Kanna, Adv. for
       the Respondent.
 F
             The Judgment of the Court was delivered by
             DEEPAK GUPTA, J.
             1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against the
       judgment of the High Court whereby Guru @ Gurubaran (A--1) and
 G     Durai @ Durairajan (A-2) have been convicted under Section 302, Indian
       Penal Code (IPC) and sentenced to imprisonment for life and to pay a
       fine of Rs.1000/- each with default sentence of 3 months rigorous
       imprisonment (RI). As far as Vettri @ Vetrivell (A-3) is concerned, he
       was convicted under Section 324 IPC on two counts and sentenced to
       one year RI on each count and fine of Rs.1000/- with default sentence
 H     of 3 months. Narayanan (A-5) and Srinivasan (A-9) along with other
   GURU @ GURUBARAN & ORS. v. STATE REP. BY INSP.                            1067
           OF POLICE [DEEPAK GUPTA, J.]

accused were convicted under Section 323 IPC and sentenced to undergo        A
six months RI and pay fine of Rs.1000/- each with default sentence of 3
months. All the sentences were to run concurrently.
        2. The prosecution case is that Parasuraman (PW-14), son of
deceased Saroja and Munusamy Pillai (PW-1), was in love with Uma,
the younger sister of A-1. They both got married and after the marriage,     B
PW-14 lived in his wife’s house. However, Saroja (deceased) did not
approve of this. Thereafter, PW-14 came back to his house. On
03.03.1998, it is alleged that Jayaraman (A-4) assaulted Nagarajan (PW-
2), brother of Saroja and brother-in-law of PW-1. To settle the dispute,
a Panchayat was called the next day. It is admitted that this Panchayat
was called at the instance of A-1. The Panchayat was to be conducted         C
in the evening. However, since the Pradhan of the Panchayat was
indisposed, the Panchayat could not be held. Thereafter, PW-2, his sister
Saroja (deceased), his wife Rani (PW-7), Murugan (PW-13) and Naveen
Kumar, son of PW-2 and PW-7 stood outside the house of PW-2 talking
amongst themselves. According to him, PW-13 had come to the village          D
because of the Panchayat. While they were standing there, A-1 came
armed with a sickle (Koduval), A-2 armed with an Iron Pipe, A-3 armed
with a sickle (Koduval) and A-4 to A-9 carrying thick wooden staffs in
their hands. It is alleged that A-1 attacked deceased Saroja with a sickle
on the front portion of her head and said that it was only because of her
that the younger sister of A-1 has to live separately from her husband.      E
A-2 gave a blow on the back of the neck of Saroja with an iron pipe.
The other accused are alleged to have attacked Saroja with wooden
staffs in their hand. When the family members of Saroja tried to protect
her, all the 9 accused surrounded her and, as such, they could not protect
her. According to the eye-witnesses, they were also attacked by the          F
members of the aggressive party. The version of all the eye-witnesses
is similar.
       3. However, there are some discrepancies with regard to the
manner in which the said incident took place. According to PW-1, on
the date of Panchayat, first a verbal altercation took place between the     G
two sides and then the attack took place whereas, according to PW-2
and some of the other eye-witnesses, the attack took place without any
provocation. We are of the considered view that for the purpose of
deciding this appeal, we can even presume that there was some verbal
altercation between the two sides.
                                                                             H
1068            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


 A            4. The occurrence is not denied. The main defence is that there
       was a free fight on both sides and that there is no evidence to show that
       there is prior meeting of minds. The accused had not been convicted
       under Section 34 or Section 149 IPC and, therefore, each individual
       accused can only be convicted for the injury attributed to that individual.
       Therefore, it becomes relevant to refer to the medical evidence of the
 B
       autopsy surgeon Dr. Rajamani, Assistant Surgeon (PW-3). The injuries
       are as follows:
             “1. An Antemortem red, oblique lacerated wound measuring 6cm
             x 1cm x 1cm, exposing the bones over the left frontal region of
             scalp, 1 cm away from the midline with bleeding and blood clots.
 C           On Exploring the wound, echymosis seen behind the scalp over
             the frontal, parietal, temporal and back of skull. There is a fracture
             of frontal bone measuring 5 cm in length, vertical, para sagittally
             and 1cm away from midline over the left side, extended to upwards
             to fronto parietal junction, and another fracture line which is
 D           adjacent to it and slightly oblique from the frontal bone to towards
             fronto parietal junction, 4cm x 1/8 on and on exposing the skull
             bones blood clots seen over the membranes of the leftcerebral
             hemisphere of brain on the frontal, parietal, temporal and occipital
             region, of the brain. Both fractures are involving inner and outer
             table of the skull.
 E
             2. An abrasions varying size from 3cm to 21/2cm x ¼ cm with ½
             cm different from each other, oblique, placed over middle 1/3 of
             right side neck.
             3. An AM abrasion 21/2cm x ¼ cm obliquely placed 1cm away
 F           from injury No.2 on right side of neck.
             4. An AM swelling whole of the anterior and lateral side of right
             side neck. On exposing the injury No.2, 3, 4 minor blood clots
             under the skin of neck and congestion of sternomastoid muscle
             and blood clots seen in anterior and lateral side of right side neck.”
 G             5. The doctor states that these injuries caused the death. The
       first injury is a lacerated wound and it is urged by Mr. S. Nagamuthu,
       learned senior counsel, that this injury could not have been caused by
       sickle (Koduval), which is a sharp-edged weapon. A sickle is an
       instrument mainly meant for cutting grass and crops. The inner side is
 H
   GURU @ GURUBARAN & ORS. v. STATE REP. BY INSP.                            1069
           OF POLICE [DEEPAK GUPTA, J.]

sharp but the outer side is blunt. While using it as an instrument of        A
agriculture only, the sharp edge is used but while using it as a weapon of
offence, more often than not, it will be the outer side which will be used
to hit the victim. The doctor has opined that the injury could have been
caused by a sickle which is MO-1 and, therefore, the medical evidence
fully corroborates the version of all the eye-witnesses.
                                                                             B
       6. It was next urged that the offence was not of murder but may
amount to culpable homicide not amounting to murder. It has been urged
that the case would fall within Exception 4 to Section 300 IPC, which
reads as follows:
      “Exception 4 – Culpable homicide is not murder if it is committed      C
      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 or unusual manner.”
       7. We are of the view that the accused cannot take benefit of this
Exception. It has come in evidence that all the accused persons came         D
armed. Two were armed with sickles, one with an iron pipe and the
other with wooden staffs. Even if it is assumed that they may not have
come with the intention of killing, the fact that they were armed, clearly
indicates that the occurrence did not take place in the heat of passion,
upon a sudden quarrel. As pointed out above, both sides were coming to
attend a Panchayat to settle a dispute. Where was the need to carry          E
arms if the intention was only to settle a dispute? Even otherwise, we
feel that Exception 4 is not applicable because the manner in which the
blow was given right on the middle of the head, brings this case squarely
within clause “Fourthly” of Section 300 IPC, which reads as follows:
      “300. Murder –              xxx         xxx          xxx               F
      Secondly -                  xxx         xxx          xxx
      Thirdly -                   xxx         xxx          xxx
      Fourthly -If the person committing the act knows that it is so
      imminently dangerous that it must, in all probability, cause death     G
      or such bodily injury as is likely to cause death, and commits such
      act without any excuse for incurring the risk of causing death or
      such injury as aforesaid.”


                                                                             H
1070                SUPREME COURT REPORTS                       [2019] 12 S.C.R.


 A            8. A-1 should have known that the act which he is performing, of
       hitting the deceased on the head with a sickle with such great force
       causing fracture of the skull, is so dangerous that it would have imminently
       caused death. Therefore, we find no reason to alter the sentence or
       conviction of Guru @ Gurubaran (A-1).
 B            9. However, as far as Durai @ Durairajan (A-2) is concerned,
       since the High Court has held that neither Section 34 nor Section 149
       IPC are applicable, each accused will only be responsible for his own
       acts and injuries. In this behalf, reference was made to a judgment of
       this Court in the case of Atmaram Zingaraji vs. State of Maharashtra1.
       There is no appeal by the State. As far as A-2 is concerned, he is
 C     alleged to have given a blow with an iron pipe on the back of the neck of
       the deceased. This resulted in injury numbers 2 and 3. They are merely
       abrasions and could not have caused death. Therefore, the accused can
       only be held guilty of having committed the offence under Section 324
       IPC. He has already undergone imprisonment for around 11 years and,
 D     therefore, his conviction under Section 302 IPC is altered to Section 324
       IPC and the sentence is reduced to the period of incarceration already
       undergone. As far as Vettri @ Vetrivell (A-3), Narayanan (A-5) and
       Srinivasan (A-9) are concerned, we find no reason to interfere with the
       judgment of the High Court as each has been held guilty for the offence
       which they have committed.
 E
              10. In view of the above, the appeal of Accused Nos. 1, 3, 5 and
       9 is dismissed and the appeal of Accused No. 2 is allowed and his
       conviction is altered from offence punishable under Section 302 IPC to
       offence punishable under Section 324 IPC and the sentence is reduced
       to the period of incarceration already undergone.
 F
             11. Accused-Appellant Nos.1 & 2 were granted bail vide this
       Court’s order dated 08.01.2018. In view of the above, bail bond of
       Appellant No.1 (A-1) is cancelled. He shall be taken into custody
       forthwith to serve remaining period of the sentence and bail bond of
       Appellant No.2 (A-2) is discharged. Pending application(s), if any, stand(s)
 G     disposed of.


       Ankit Gyan                                                 Appeals disposed of.
       1
           (1997) 7 SCC 41
 H