When 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1893 OF 2010
GURU @ GURUBARAN & ORS. …APPELLANT(S)
Versus
STATE REP. BY INSP. OF POLICE …RESPONDENT(S)
J U D G M E N T
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 (A­1)
    and Durai @ Durairajan (A­2) 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
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    months rigorous imprisonment (RI). As far as Vettri @ Vetrivell
    (A­3) 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 (A­5)
    and Srinivasan (A­9) along with other 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 (PW­14), son of
    deceased Saroja and Munusamy Pillai (PW­1), was in love with
    Uma, the younger sister of A­1. They both got married and after
    the marriage, PW­14 lived in his wife’s house. However, Saroja
    (deceased) did not approve of this. Thereafter, PW­14 came back
    to his house. On 03.03.1998, it is alleged that Jayaraman (A­4)
    assaulted Nagarajan (PW­2), brother of Saroja and brother­in­law
    of PW­1. To settle the dispute, a Panchayat was called the next
    day. It is admitted that this Panchayat was called at the instance
    of A­1. The Panchayat was to be conducted in the evening.
    However, since the Pradhan of the Panchayat was indisposed, the
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    Panchayat could not be held. Thereafter, PW­2, his sister Saroja
    (deceased), his wife Rani (PW­7), Murugan (PW­13) and Naveen
    Kumar, son of PW­2 and PW­7 stood outside the house of PW­2
    talking amongst themselves. According to him, PW­13 had come
    to the village because of the Panchayat. While they were
    standing there, A­1 came armed with a sickle (Koduval), A­2
    armed with an Iron Pipe, A­3 armed with a sickle (Koduval) and
    A­4 to A­9 carrying thick wooden staffs in their hands. It is
    alleged that A­1 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 A­1 has to live separately from her
    husband. A­2 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 eye­witnesses, they were also attacked by the
    members of the aggressive party. The version of all the eyewitnesses is similar.
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  3. However, there are some discrepancies with regard to the
    manner in which the said incident took place. According to PW1, on the date of Panchayat, first a verbal altercation took place
    between the two sides and then the attack took place whereas,
    according to PW­2 and some of the other eye­witnesses, 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.
  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 (PW­3). The injuries are as
    follows:
    “1. An Antemortem red, oblique lacerated wound
    measuring 6cm x 1cm x 1cm, exposing the bones over the
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    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.
  5. 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.
  6. An AM abrasion 21/2cm x ¼ cm obliquely placed 1cm
    away from injury No.2 on right side of neck.
  7. 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.”
  8. 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 sharp­edged
    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
    5
    hit the victim. The doctor has opined that the injury could have
    been caused by a sickle which is MO­1 and, therefore, the
    medical evidence fully corroborates the version of all the eyewitnesses.
  9. 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.”
  10. 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
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    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.”
  11. A­1 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 (A­1).
  12. However, as far as Durai @ Durairajan (A­2) is concerned,
    since the High Court has held that neither Section 34 nor Section
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    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 A­2 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 (A3), Narayanan (A­5) and Srinivasan (A­9) 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.
  13. 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
    1 (1997) 7 SCC 41
    8
    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.
  14. Accused­Appellant 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 (A­1) is cancelled. He shall be taken into
    custody forthwith to serve remaining period of the sentence and
    bail bond of Appellant No.2 (A­2) is discharged. Pending
    application(s), if any, stand(s) disposed of.
    …………………………J.
    (Deepak Gupta)
    …………………………J.
    (Aniruddha Bose)
    New Delhi
    September 27, 2019
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