LexMARIMUTHU & ORS. versus STATE OF TAMIL NADU
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[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 H 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 .. ~ - ~ . 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 Ra
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