LexBABU AND ANR. versus STATE REP. BY INSPECTOR OF POLICE, CHENNAI
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A B [2013] 2 S.C.R. 438 BABU AND ANR. v. STATE REP. BY INSPECTOR OF POLICE, CHENNAI (Criminal Appeal No. 353 of 2008 etc.) MARCH 19, 2013. [A.K. PATNAIK AND H.L. GOKHALE, JJ.] PENAL CODE, 1860: c s.302134 and s.300, Exception 4 - Conviction by trial court of 5 accused uls 3021149 /PC - Acquittal of one accused by High Court - Held: The evidence of eye-witness makes it clear that the deceased was attacked by the four appellants in furtherance of their common intention and, as such, they all D were liable uls 302134 for causing this death - Further, deceased was unarmed and the accused-appellants were armed with knives and attacked him even after he fell down - They took undue advantage and acted in cruel and unusual manner towards the deceased - Besides, keeping in view the E injuries on the deceased, Exception 4 to s.300 is not attracted - Conviction and sentence of appellants u/s 302134 upheld. The four appellants along with two others were prosecuted for committing offences punishable u/ss 147, 148, 341, 324 and 302 IPC. The prosecution case was that F there was previous enmity between 'R' the younger brother of the informant (PW-1) and 'E', one of the accused-appellant. On 25.1.2004 at around 5.30 P.M., 'E' telephoned the wife of 'R' and threatened her. At about 10.15 p.m. 'R' asked 'E' about this, whereupon 'E' and his G companions attacked 'R' and PW-1 with knives. 'R' died on the spot. The trial court convicted A-1, A-2, A-3 and A· 4 u/ss 148, 324/149 and s.302/149 IPC; and A-6 u/ss 147, 324/149 and 302/149 IPC. However, A-5 was acquitted of all the charges. High Court further acquitted A-6, but H 438 BABU AND ANR. v. STATE REP. BY INSPECTOR OF 439 POLICE, CHENNAI maintained the conviction of A-1, A-2, A-3 and A-4. A In the instant appeals filed by the convicts, it was, inter alia, contended for the appellants that on acquittal of two accused, conviction of the four appellants u/s 302/ 149 ICP was not sustainable; that there was doubt about B the date, time and place of registration of FIR; that there were discrepancies in the evidence of PW-1, PW-2 and ' PW-3. Alternatively, it was contended that the offence committed by the appellants would fall under Exception 4 to s.300 IPC and as such they would, at best, be liable C u/s 304 IPC. Dismissing the appeal, the Court HELD: 1.1 On the evidence, the conviction of the appellants u/s 302, IPC can be sustained without the aid 0 of ss.141 and 149, IPC. The evidence of PW-1, PW-2 and PW-3 makes it clear that the deceased was attacked by A-1, A-2, A-3 and A-4 in furtherance of their common intention and, therefore, all the four accused persons (the appellants) were liable for the criminal act of causing the E death of the deceased u/s 302 read with s. 34, IPC, as if the criminal act was done by each of them alone. [para 13] [448-B-E-F] Dhanna etc. v. State of M.P. 1996 (4) Suppl. SCR 28 = (1996) 10 SCC 79 ·relied on. F 1.3 As regards the discrepancies in the eye-witness account of the occurrence given by PW-1, PW-2 and PW- 3, these witnesses were examined more than one and a half years after the incident and it was natural for them G to differ in some respects of what they saw and what they remembered. [para 14] [449-A·B] State of Rajasthan v. Smt. Kalki and Another 1981 (3) SCR 504 = (1981) 2 sec 752 • relied on. H 440 SUPREME COURT REPORTS (2013] 2 S.C.R. A 1.4 With regard to the registration of the FIR, the Inspector of Police who has been examined as PW-13 has stated very clearly in his evidence that on 25.01.2004 at 10.45 pm when he was at the Police Station, PW-1 lodged a complaint and he wrote it down and read it over B to PW-1, obtained his signature and registered the case. The evidence of PW-13 is supported by the evidence of PW-1. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident c between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. Therefore, there is no doubt that the FIR was lodged at the Police Station within half an hour of the incident on 25.01.2004. D [para 15] [449-E-F-H; 450-B-C1 Meharaj Singh (UNk.) etc. v. State of U.P. (1994) 5 SCC 188 - distinguished. 1.5 In the instant case, there is no evidence to show E that the deceased was armed in an
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