JAGEBAR ALI @ SETTUversusSTATE OF TAMIL NADU

                                   [2009] 1 S.C.R. 407


         •                     JAGEBAR ALI @ SETTU                           A
                                           v.
                               STATE OF TAMIL NADU
                           (Criminal Appeal No. 38 of 2007)
                                  JANUARY 20, 2009
                                                                             B
                  [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
~
         ,.                      SHARMA, JJ.]

                  PENAL CODE, 1860:
                                                                             c
                    ss. 302 and 302 (part-II) - Main accused causing fatal
              injuries to victim with 'aruval' - Others joining him in attack -
              Conviction of main ace.used uls 302 and co-accused uls 304
              (part-I/) - Affirmed by High Court - HELD: High Court has
              indicated reasons for which main accused was treated D
              differently - In view of findings of trial court and High Court,
              there is no merit in the appeal filed by main accused -
              Scheduled Castes and Scheduled Tribes (Prevention of
              Atrocities) Act, 1989 - s.3(2)(v).

                   The appellant (A-1) and 14 others were prosecuted E
              for commission of offences punishable ulss 147, 148, 307
              and 302 IPC and s.3(2)(v) of the Schedule Castes and
              Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
              prosecution case was that on the day of incident at about
              5 p.m. a quarrel took place between A-1 on the one side F
              and PW-1 to PW-4 on the other and one 'J' pacified them.
              At about 6 p.m. when PW-1 to PW-4 and 'J' went to take
              tea, A-1, A-2, A-4 to A-6 armed with 'aruvals', A-3 armed
              with an iron rod, A-7 with a knife and other accused with
              casurina sticks attacked PWs 1 to 4. 'T' tried to pacify G

-   '"
              them but A-1 attacked him with 'aruval', A-2, A-5 and A-7
              also joined A-1 in causing injuries to 'T' with their
              respective arms; A-3 and A-4 attacked PW-1 with their
              respective weapons, the rest of the accused also
                                          407                            H
    408        SUPREME COURT REPORTS            [2009] 1 S.C.R.


A surrounded PW-1 and attacked him. 'T' died at the spot
  and PW-1 was taken to the hospital. During investigation
  A-5 made a confession and produced five 'aruvals, one
  iron road and one knife. The trial court convicted A-1 of
  the offence punishable u/s 302 IPC, A-2 to A-7 u/s 304
B (part-II) IPC, A-9 and A-10 u/s 307 and acquitted A-8 and
  A-11 to A-15. On appeal, the High Court acquitted A-9 and
  A-10.

        In the appeal filed by A-1, it was contended for the
    appellant that he could not have been treated differently
c   and convicted ufs 302 IPC whereas his co-accused were
    convicted u/s 304 (part-II) IPC.

          Dismissing the appeal, the Court

D      HELD: The High Court has indicated the reasons for
  which the appellant's case was treated differently. The
  trial court and the High Court have noted that the
  appellant had given a fatal blow on the neck of the
  deceased with aruval and the injury caused by such act
  proved fatal. In view of the findings recorded by the trial
E
  court and the High Court, there is no merit in the appeal.
  [Para 3 and 4] [412-D-F]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 38 of 2007.                                                ..
F
        From the Judgment and Order dated 21.7.2006 of the High
    Court of Madras, Bench at Madurai in Crl. Appeal No. 1473 of
    2003.

      A.T.M. Rangaramanujam, P.N. Ramalingam, Pugazhenlhi
G and Balamurugan for the Appellant.

          R. Sundaravaradhan, S. Thananjayan and R. Nedumaran       • •
    for the Respondent.

          The Judgment of the Court was delivered by
H
             JAGEBAR ALI @ SETIU v. STATE OF TAMIL NADU                  409

                 DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is          A
    -·
           to the judgment of a Division Bench of the Madras High Court
           convicting A-1, the present appellant for offence punishable
           under Section 302 of the Indian Penal Code, 1860 (in short the
           'IPC'). A-2 to A-7 were found guilty under Section 304 Part II,
           IPC and each was sentenced to undergo rigorous                       B
           imprisonment for five years. A-3 to A-7 were found guilty of
           offence under Section 324 IPC and each was sentenced to
    •      undergo RI for two years. A-1 to A-7 were acquitted of the other
           charges levelled against them. A-9 and A-10 were acquitted
           of the charges levelled against them. Fifteen persons faced trial,   c
           out of them the trial Court acquitted A-8, A-11 to A-15. By the
         • impugned judgment, as noted above, the High Court directed
           acquittal of A-9 and A-10.

                2. The prosecution version as unfolded during trial is as
    ~     follows:                                                              D
'

              PW-1 is the native of Thugli Periyar Nagar. PWs 2, 3, 4 5
         and 6 belonged to the same place. PWs 2, 3 and 4 were
         originally employed in Ambika Sugar Mills, Kottur. P.Ws. 6 and
         7 are also the residents of the said place and were carrying           E
         on agricultural operations. P.W.8 belonged to Kealathur village,
         where he was serving as village menial. P.W.9 belonged to
         Keezhasuriya Moolai village, where he was serving as village
         assistant community. A-1 to A-11 and A-13 to A-15 belong to
         Hindu Padayachi out of whom, A-1 and A-2, though belonged              F
         to Hinduism originally, switci:led over to Muslim faith. A-12
         belonged to another community. P.Ws. 1 to 4 belonged to
         scheduled caste and they were all employed at the time of
         occurrence under one Bhaskar.

                On 26.3.2001 at about 5.00 p.m., after finishing work,          G
    j    P.Ws. 1 to 4 came out of the sugar factory and went to a nearby
         tea stall for taking tea. At that time, A-1 was plying auto on the
         r(;iad. On seeing sugarcane on the road, P.Ws. 1 to 4 went near
         the middle of the road. When A-1 came nearby he uttered "you
         add four more persons and lie on the road". In reply, P.W.1 told       H
    410        SUPREME COURT REPORTS                [2009] 1 S.C.R.


A him "on hearing the horn of the Auto, we gave way and even
  then, why are you scolding". There arose a quarrel. In that, A-1
  took casurine stick and tried to attack P.W.1. The other
  witnesses, namely P.Ws. 2 to 4 restrained P.W.1. The other
  witnesses, namely P.Ws. 2 to 4 held the accused and stopped
B him from attacking. This was also witnessed by the Thangaraju
  (hereinafter referred to as deceased), who was taking tea in a
  nearby tea stall. He suddenly intervened and pacified them.

        A-1 turned the Auto and took the same to
  Keezhasuriyamoolai village. P.Ws. 1 to 4 went to Muniyendi
C Vilas for taking tea. Forty five minutes later, at about 6.00 p.m.,
  when the witnesses along with Thangaraj were at the place of
  occurrence, A-1, A-2, A-4 to A-6 armed with aruvals, A-3 armed
  with an iron road and A-7 armed with a knife and the other
  accused armed with casurina sticks, came there. The
D deceased Thangaraju tried to pacify them. A-1 cut the deceased
  on the left side of the neck. Again A-1 cut the deceased below
                                                                        .   '

  the left ear. A-4 cut him on the left side of the hip. A2 cut him
  with aruval on the left shoulder. A-5 cut the deceased on the
  waist. A-7 stabbed him with the knife on the left armpit and the
E deceased fell down. A-3 beat PW-1 on the head with the iron
  rod. A-4 cut P.W.1 on the left waist. The rest of the accused
  surrounded P.W.1 and cut P.W.1 on the right arm, left shoulder,
  right thigh and on the back respectively and they fled away from
  the place of occurrence.
F
        One Mohan took ·P.W.1 to the Government Hospital,
  Kumbakonam, where he was admitted by P.W.10, the Doctor,
  at about 7.00 p.m. He issued Ex.P.11, the wound certificate. A
  communication was received by P.W. 13, the Head Constable,
G attached to Kumbakonam East Police Station at 19.30 hours,
  who in turn informed the same to Penthenellur Police Station,
  within whose jurisdiction the occurrence has taken place. On          •
  receipt of the intimation on 26.3.2001at1930 hours, P.W.16,
  the Sub Inspector of Police proceeded to the Government
H Hospital, Kumbakonam at 2030 hours. He recorded the
           JAGEBAR ALI@ SETIU v. STATE OF TAMIL NADU                  411
                     [DR ARIJIT PASAYAT, J.]
        statement of P.W.1, which was marked as Ex.P.1, on the               A
        strength of which a case came to be registered in Crime No.
        72 of 2001 under Sections 147, 148, 324, 307 and 302 IPC
        and Section 3(2)(v) of the Scheduled Castes and the
        Scheduled Tribes (Prevention of Atrocities) Act, 1989. Ext. P17
        the FIR was dispatched to the Court.                                 B
             P.W.19, the Deputy Superintendent of Police, on receipt
    ~
        of the copy of the FIR on 26.03.2001 at about 11.00 p.m.,
        proceeded to the place of occurrence and made an inspection
        in the presence of two witnesses. He prepared Ex.P.2, the
        observation mahazar and Ex.P.35, the rough sketch. He
                                                                             c
        conducted inquest on the dead body of the deceased in the
        presence of the witnesses and panchayatdars and prepared
        Ex.P.35, the inquest report. Following the same, the dead body
        was sent to the Government Hospital, Thiruvidaimarudur for the
        purpose of post-mortem.                                              D

             The autopsy of the dead body was conducted. During
        investigation A-5 gave confession statement voluntarily and the
        same was recorded in the presence of witnesses. Following
        the same A-5 produced five aruvals, one iron rod and one knife E
        in the presence of witnesses. After completion of investigation
        charge sheet was filed. Since the accused persons pleaded ·
        innocence trial was held. Prosecution examined 20 witnesses.
        As noted above, the trial Court found the appellants to be guilty
        and awarded punishments.                                          F
              Before the High Court the primary stand related to
        acceptability of so called eye witnesses PWs 1 to 4. Particularly
        the emphasis was made on the evidence of PW-1 to show that
        there could not have a common object to murder the deceased
        or attempt to murder PW-1. It was also submitted that it is highly   G
)   ~   unbelievable that twenty persons were involved in such an
        attempt. It was, therefore, highlighted that in a group clash PWs
        1 to 4 could not identify the assailants properly. The High Court
        did not find any substance in the stand taken by the appellant.
        The High Court did not accept the stand of the prosecution           H
   412        SUPREME COURT REPORTS              [2009] 1 S.C.R.

A regarding applicability of Section 304 Part II read with Section    •
  149 IPC. It was held that in respect of the respective acts
  committed by each one of them the matter is required to be
  considered. From the post mortem certificate it was noticed
  that the first injury was caused by A-1 with aruval on the neck
B and the corresponding injury caused the death. At the same
  time, A-2, A-4, A-5 and A-6 were armed with aruval, A-7 with
  knife and A-3 with iron rod and they have attacked the
  deceased and contributed corresponding injuries. Therefore,
  it was held that A-1 had· to be convicted in terms of Section
c 302   IPC. So far as others are concerned the acts attracted
  Section. 304 Part II IPC.

        3. Learned counsel for the appellant has submitted that
  while others were convicted for offence punishable under
  Section 304 Part II, IPC he alone has been convicted under
D Section 302 IPC. According to him, there is a parity between
  the co-accused persons. The High Court has indicated the
  reasons for which the appellant's case was treated differently.
  The trial Court and the High Court have noted that the appellant
  had given a fatal blow on the neck with aruval and the injury
E caused by such act proved fatal. Therefore, there is no
  substance in the plea of the appellant that he stood on similar
  footing as that of co-accused persons.

      4. In view of the findings recorded by the trial Court and     ..
F the High  Court we find no merit in this appeal which is
  accordingly dismissed.

   RP.                                        Appeal dismissed.



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