Supreme Court of India
MARIMUTHU & ORS.versusSTATE OF TAMIL NADU
- Citation
- 2008 INSC 39
- Decided
- 11 January 2008
- Disposal
- Case Partly allowed
- Bench
- C K THAKKER
Holding
The conviction under Section 302 IPC is converted to Section 304 Part I IPC, while the conviction under Section 326 IPC is upheld.
Summary
Seven persons were prosecuted for the murder of Chinnadurai, who had earlier testified against some of the accused. The trial court convicted all under Section 302 IPC. The Madras High Court acquitted three (Nos. 4, 6, 7) on the ground of benefit of doubt and upheld convictions of the remaining four (Nos. 1, 2, 3, 5) under Section 302, with No. 1 also convicted under Section 326 for grievous hurt to the complainant. The appellants challenged the High Court’s decision, arguing that the benefit of doubt should extend to them and that the conviction for murder was unsustainable. The Supreme Court held that the benefit of doubt granted to the acquitted could not be extended to the convicted, but, given the prosecution’s case that all seven attacked the victim, the appropriate conviction for the appellants was culpable homicide not amounting to murder under Section 304 Part I, not murder under Section 302. The conviction under Section 326 was left untouched. The Court therefore reduced the murder conviction to culpable homicide and ordered ten years’ rigorous imprisonment, partially allowing the appeal.
Issues considered
- The benefit of doubt granted to acquitted accused can be extended to other accused convicted of murder.
- Whether the evidence establishes murder under Section 302 IPC or only culpable homicide not amounting to murder under Section 304 Part I.
- Whether the conviction under Section 326 IPC for causing grievous hurt should be set aside.
- The effect of discrepancies in the FIR and the alleged dying declaration on the convictions.
Legislation cited
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304(Part I), s. 307, s. 326, s. 341
Subjects
murderculpable homicide not amounting to murderbenefit of doubtconviction reductionIPC Section 302IPC Section 304IPC Section 326criminal appealdying declaration
Judgment
[2008] 1 S.C.R. 547
MARIMUTHU & ORS. A
v.
STATE OF TAMIL NADU
(Crl. A. No. 74 of 2008)
JANUARY 11, 2008
B
[C.K. THAKKER AND ALTMAS KABIR, JJ.]
+ Penal Code, 1860 - ss. 304 (Part I) and 326 - Murder
and grievous injuries caused - Prosecution of seven accused
- Complainant party and accused party on inimical terms - c
Trial court convicting all the accused .u/s 302 - High Court
acquitting three accused extending benefit of doubt and
convicting the rest of the accused - One of the accused
convicted uls 326 in addition - On appeal, held: order of High
Court justified - In the facts of the case benefit of doubt given
D
to the acquitted accused is not extendable to the convicted
~ accused - However, conviction uls 302 is converted to one u/
• j •
s 304 (Part I) - Conviction u/s 326 is not interfered with .
Appellants alongwith three others were prosecuted
for having committed death of one person. Prosecution E
case was that the complainant party and the accused party
were on inimical terms. On the day of the incident, when
PW-2 was standing in front of his house, accused No. 1,
abused him. The deceased, along with PW 2 and othe.r
~ family members proceeded to police station for lodging F
;; complaint against this incident. One hour later, when the
complainant party was returning, the accused persons
attacked the deceased and PW-2. This resulted in instant
death of the deceased and. injuries to PW-2. Statement of
PW-2 was recorded as dying declaration. However, the
G
same was later discarded as he survived. Trial court
.....,
convicted all the seven accused uls 302 IPC. High Court
convicted the accused Nos. 1, 2, 3 and 5 u/s 302 IPC.
Accused No. 1 was convicted u/s 326 IPC in addition.
547 H
548 SUPREME COURT REPORTS [2008] 1 S.C.R.
A However, accused Nos. 4, 6 and 7 were acquitted
extending benefit of doubt. Hence the present appeal by
the convicted accused.
Partly allowing the appeal, the Court
B HELD. 1. So far as the incident is concerned, both
the courts have rightly believed the case of the
prosecution. From the substan.tive evidence of ~
prosecution witnesses, it was clearly proved that the
parties were on inimical terms. [Para 10] [552-H; 553-A]
C 2. According to medical evidence it is clearly
established that deceased sustained as many as eight
injuries and he died due to shock and hemorrhage of
the injuries received by him. It was thus a homicidal
death of the deceased. It is also clear that PW-2 was
D injured in the incident and was one of the victims who
sustained those injuries during the course of incident.
[Paras 11 and 12] [553-E, F; 554-B] .. ~
3. It cannot be said that the benefit which had been
given by the High Court to accused Nos. 4, 6 and 7 should
E also be given to the present appellants. Keeping in mind
discrepancy in the First Information Report and so-called
dying declaration of PW-2, the High Court extended
benefit of doubt to accused No.6 in view of absence of
his name in the dying declaration and also because of
F 'superficial and minor' injuries said to have been
sustained by accused Nos. 4 and 7. That does not,
however, mean that appellants were not involved In the
incident or they had not attacked the deceased or PW-2.
[Para 12) [554-B, C, DJ
G
4. However, when the case of the prosecution was
that all the seven accused indiscriminately attacked the
deceased and caused his death and when the' High
Court granted benefit of doubt and acquitted three of
them (accused Nos. 4, 6 and 7), it would be appropriate
H
MARIMUTHU & ORS. v. STATE OF TAMIL NADU 549
[C.K. THAKKER, J.]
if instead of convicting the appellants for an offence .of A
murder punishable under Section 302, IPC, they are
convicted for an offence of culpable homicide not
· amounting to murder punishable under Section 304, Part
I, IPC. [Para 13] [554-E, F, G]
5. The order as to conviction and sentence imposed 8
on the appellant No.1 for an offence punishable under
Section 326, IPC for causing grievous injury to PW2 and
also payment of fine is not disturbed. [Para 13] [555-A]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal c
No. 74 of 2008.
From the final Judgment and Order dated 21.8.2006 of
the High Court of Judicature at Madras, Bench at Madurai in
Crl. A. No. 33/1998
D
U.U. Lalit, P.R. Kovilan Poongkuntran, V. Vasudevan, Nitin
Sangra and Naresh Kumar for the Appellants. '
- ~ .
V.. Kanakaraj, S. Joseph Aristotle, S. Prabu
Ramasubramanian and V.G. Pragasam for the Respondent. .
The Judgment of the Court was delivered by
E
C.K. THAKKER, J. 1. Leave granted.
2. The present appeal is filed against judgment and order
passed by the High Court of Madras (Madurai Bench) on August
21, 2006 in Criminal Appeal Nos.33 and 36 of 1998 by which it F
partly confirmed the order of conviction and sentence recorded
by I Addi. District Judge-cum-Chief Judicial Magistrate,
Tiruchirapalli on December 8, 1997 in Sessions Case No. 8 of
1997.
G
3. The facts of the case are as under:
4. Seven accused were prosecuted for various offences
punishable under Sections 302, 307, 326 and 341 read with
Sections 148 and 149 of the lridian Penal Code (IPC). The case
of the prosecution was that all the accused and deceased H
550 SUPREME COURT REPORTS [2008] 1 S.C.R.
)...
A Peiyakaruppan @ Chinnadurai belonged to the same village
Santhapuram. Two years prior to the occurrence, deceased
Chinnadurai had given evidence in a Court of Law against
Veerabathran-accused No.2 and in favour of Maruthairaj-PW2
in a criminal case. In connection with a water dispute, there was
B a civil case and in that civil dispute also, the deceased had
given evidence against the accused party. The parties were also
on inimical terms in connection with irrigation of agricultural .....
lands. On May 27, 1995, at about 3.30 p.m., PW2-Maruthairaj-
complainant was standing in front of his house and at that time,
c Marimuthu-accused No.1 went near the complainant and
abused him in filthy language. Deceased Chinnadurai, father of
PW2-Maruthairaj, along.with other family members, proceeded
to Somarasampet Police Station and lodged a complaint
relating to the said incident. At about 4.30 p.m. on the same
day at Tiruchy-Vayalur Road, near Ambedkar Colony Junction,
D
according to the prosecution story, all the seven accused
persons with common object of committing murder of deceased >-
Chinnadurai, attacked him with aruva/, bichuva, knife and other .' ~
lethal weapons. In that attack, Chinnadurai died instantaneously
due to multiple injuries. The accused also caused injuries to
E complainant Maruthairaj-PW2. FIR was lodged, being Crime
No. 229 of 1995 on May 27, 1995. After usual investigation,
charge was framed against the accused persons and the matter
was committed to a Court of Sessions.
F 5. The trial Court, by a judgment and order dated r
December 8, 1997, convicted the accused persons and ordered "-
them to undergo different sentences as mentioned in the
operative part of the judgment. Being aggrieved by the said
order, all the accused preferred appeals. The appeals were
partly allowed by the High Court. Accused Nos. 4, 6 and 7 came
G
to be acquitted by the High Court extending benefit of doubt,
't"'
while accused Nos. 1, 2, 3 and 5 (appellants herein) were
convicted for offences punishable under Section 302, IPC for
causing death of Chinnadurai. Accused No.1 was also convicted
for an offence punishable under Section 326. IPC for causing
H
MARIMUTHU & ORS. v. STATE OF TAMIL NADU 551
[C.K. THAKKER, J.]
,,.(
grievous hurt to PW2-Maruthairaj. Being aggrieved by the said A
order, the appellants have approached this Court.
6. Notice was issued on January 25, 2007. The office was
directed to place the matter for final disposal and accordingly,
the matter has been placed before us.
B
7. We have heard learned counsel for the parties.
8. The learned counsel for the appellants submitted that
when three accused (accused Nos. 4, 6 and 7) were acquitted
by the High Court, it committed an error of law in convicting the
remaining accused. The High Court, ought to have appreciated c
-,'
that when the Court observed that the prosecution had not come
forward with true and complete facts and a part of the story had
not been believed, it adversely affected the genesis of the
incident and it ought to have acquitted all the accused. It was
submitted that so-called dying declaration of PW2-Maruthairaj D
~
was rightly not treated as dying declaration as he survived. In
-"" ..... view of the said fact, First Information Report (FIR) should have
been totally discarded as certain names were sought to be
added therein. The High Court, on that basis, granted benefit of
doubt to three accused, but it went wrong in convicting the E
appellants on the basis of the said report. It was also submitted
that it was proved from the record that accused Nos.4 and 7
who were acquitted by the High Court, sustained injuries. The
said fact also goes to show that there was suppression of fact
~ by the prosecution witnesses and their evidence should not have F
A. been relied upon for convicting the appellants. That
circumstance supported the defence version that even if the
incident had taken place, the accused had exercised right of
self defence. Finally, it was submitted that in any case when
three accused were acquitted by the High Court, considering
G
the case of the prosecution that all the seven accused
~ indiscriminately attacked deceased Chinnadurai and committed
his murder, the High Court could not have convicted the
appellants for an offence punishable under Section 302, IPC.
At the most, the High Court could have convicted them under
H
552 SUPREME COURT REPORTS [2008] 1 S.C.R.
A Section 304 IPC. It was, therefore, submitted that the appeal
deserves to be allowed by setting aside and/or modifying
the order of conviction and sentence recorded by the High
Court.
9. The learned counsel for the respondent-State, on the
8 other hand, supported the order of conviction and sentence
passed by the High Court. He urged that the trial Court was
wholly right in convicting all the accused for various offences. It
is, no doubt, true that the High Court partly allowed the appeal
and granted benefit of doubt to three accused. It was because
C of the fact that so-called dying declaration of PW2-Maruthairaj
could not be treated as dying declaration as he survived and
there was some discrepancy in the FIR recorded and the dying
declaration of Maruthairaj. Taking such discrepancy into account
and omission of name of accused No.6, he was acquitted.
D Likewise, considering the fact that accused Nos.4 and 7 were
injured, the High Court thought it fit to give benefit of doubt to
them also. But it cannot be ignored that cross case filed by the • < ...
accused against the complainant side in the form of First
Information Report No.230of1995 was disposed of as 'mistake
E of fact'. Moreover, it was not established that the injuries were
sustained by accused Nos.4 and 7 during the course of one
and the same incident. They were not proved. Nor any complaint
was made by those accused when they were produced before
the Magistrate. In view of all these circumstances, it cannot be
F said that the High Court was in error in recording conviction
against the appellants. Keeping in view injuries caused by the
appellants, medical evidence and evidence of other witnesses
including PW2-Maruthairaj-complainant, who was seriously
injured, PW6-Annamalai and PW7-Manoharan the High Court
G convicted the appellants and no fault can be found against such
approach of the High Court. It was, therefore, submitted that no
case has been made out by the appellants and the appeal
deserves to be dismissed.
10. Having heard the learned counsel for the parties, in
H our opinion, the appeal deserves to be partly allowed. So far as
MARIMUTHU & ORS. v. STATE OF TAMIL NADU 553
[C.K. THAKKER, J.]
the incident is concerned, both the Courts have believed the A
case of the prosecution. From the substantive evidence of
prosecution witnesses, it was clearly proved that the parties
were on inimical terms: Two years before the incident, there
was a criminal case against the accused and in the said case,
Chinnadurai was one of the witnesses for the prosecution B
against the accused. There were more disputes also and
deceased Chinnadurai was favouring the prosecution side and
was against the accused party. It has also come in evidence
and believed by both the Courts that on May 27, 1995, there
were two incidents. First incident took place at about 3.30 p.m.c
when PW2-Maruthairaj was standing in front of his house and
was abused by accused No.1. Following procedure of law, PW2-
Maruthairaj and deceased Chinnadurai,went to Police Station
and lodged a complaint against the said accused. There was,
therefore, nothing illegal in the act of deceased and the
0
complainant party. The accused party, however, was very much·
enraged. The accused assembled together and waited for
)> •
complainant party to come from Police Station. They were all
armed with deadly weapons and wanted to teach a lesson to
deceased Chinnadurai and PW2-Maruthairaj. The complainant
party was not having any weapon with them and they were E
unarmed. The accused persons indiscriminately assaulted
deceased Chinnadurai and PW2-Maruthairaj.
11. So far as medical evidence is concerned, it clearly
established that deceased Chinnadurai sustained as many as F
eight injuries and he died due to shock and hemorrhage of the
injuries received by him. It was thus a homicidal death of the
deceased.
PWS-Thirugnanam (Doctor) stated in his substantive
evidence that on May 27, 1995, while he was on duty as Doctor G
attached to Government hospital, Tiruchirapalli, at about 6.30
p.m., Maruthairaj-PW2 was brought by his sister Saroja who
had following injuries:
1. Incised wound 8" length cutting the bone underneath
H
554 SUPREME COURT REPORTS [2008) 1 S.C.R.
A right forehead.
2. Incised wound 4" length cutting right scapula.
3. Incised wound 2" skin deep left fore arm.
12. Thus, it is also clear that PW2-Maruthairaj was injured
8 in the incident and was one of the victims who sustained those
injuries during the course of incident. Both the Courts, relying
on the evidence of the prosecution witnesses, and particularly
PW2-Maruthairaj who was injured witness and thus victim,
convicted the appellants. Keeping in mind discrepancy in the
C First Information Report and so-called dying declaration of PW2-
Maruthairaj, the High Court extended benefit of doubt to accused
No.6 in view of absence of his name in the dying declaration
and also because of 'superficial and minor' injuries said to have
been sustained by accused Nos. 4 and 7. That does not,
D however, mean that appellants were not involved in the incident
or they had not attacked deceased Chinnadurai or PW2-
Maruthairaj. It, therefore, cannot be said that the benefit
which had been given by the High Court to accused Nos. 4,
. . ,
6 and 7 should also be given to the present appellants. We,
E therefore, cannot uphold the contention of the learned counsel
for the appellants that the appellants are also entitled to
benefit of doubt.
13. But the learned counsel for the appellants is right in
submitting that when the case of the prosecution was that all the
F seven accused indiscriminately attacked deceased Chinnadurai
and caused his death and when the High Court granted benefit
of doubt and acquitted three of them (Accused Nos. 4, 6 and 7),
it would be appropriate if instead of convicting the appellants
herein (Accused Nos. 1, 2, 3 and 5) for an offence of murder
G punishable under Section 302, IPC, they are convicted for an
offence of culpable homicide not amounting to murder
punishable under Section 304, Part I, IPC. To that limited extent,
the appeal deserves to be allowed by converting their conviction
for an offence under Section 302, iPC to Section 304, Part I,
H IPC. Instead of ordering the appellants herein to undergo
1
MARIMUTHU & ORS. v. STATE OF TAMIL NADU 555
[C.K. THAKKER, J.]
imprisonment for life, we direct them to undergo rigorous A
imprisonment for a period of ten years. The remaining order as
to conviction and sentence imposed on the appellant No.1 for
an offence punishable under Section 326, IPC for causing
grievous injury to PW2-Maruthairaj and also payment of fine is
not disturbed. B
14. The appeal is accordingly partly allowed to the extent
indicated above.
K.K.T. Appeal partly allowed.
c
•••
.
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