GURU @ GURUBARAN & ORS. versus STATE REP. BY INSP. OF POLICE
[2019] 12 S.C.R. 1064, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Facts
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
GURU @ GURUBARAN & ORS.
v.
STATE REP. BY INSP. OF POLICE
(Criminal Appeal No.1893 of 2010)
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
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
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
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
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
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.
[2019] 12  S.C.R. 1064
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Disposing of the appeals, the Court
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.
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
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
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
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]
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]
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
GURU @ GURUBARAN & ORS. v. STATE REP. BY INSP.
OF POLICE
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
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
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
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.
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
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.
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
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
of 3 months.  Narayanan (A-5) and Srinivasan (A-9) along with other
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accused were convicted under Section 323 IPC and sentenced to undergo
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,
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
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
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.
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
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
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.
GURU @ GURUBARAN & ORS. v. STATE REP. BY INSP.
OF POLICE [DEEPAK GUPTA, J.]
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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
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.
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
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.
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
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.”
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
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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 corroborates the version of all the eye-witnesses.
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
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
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
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
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
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.”
GURU @ GURUBARAN & ORS. v. STATE REP. BY INSP.
OF POLICE [DEEPAK GUPTA, J.]
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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).
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
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,
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.
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.
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)
disposed of.
Ankit Gyan
                          Appeals disposed of.
1(1997) 7 SCC 41