REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 294 OF 2003
SWAMINATHAN & ANR.
.. APPELLANT(S)
vs.
STATE OF TAMIL NADU
.. RESPONDENT(S)
O
RDER
At about 9.30 a.m. on the 5th April, 1994 A.1
Ramasamy came to the wine shop of PW.3 Muthu Selvin and
enquired if his uncle Velan was present in the wine shop.
At that time Palanisamy deceased came riding a bicycle and
dashed against A.1. The same evening at about 3.00 p.m.
Palanisamy was going towards the field of Alagesan and as
he was passing in front of the house of A.1., A.1 came out
and shouted at him and thereafter lifted a stick and hit
him on the head. A.2 Swaminathan and A.3 Raman who were
standing close by picked up stones lying on the spot and
hit the deceased on the cheek and forehead respectively.
The incident was witnessed by PW.1 Narayanan. He went and
informed Ganesan, the brother of the deceased, and
thereafter returned to the place of incident and found that
Palanisamy was dead. He accordingly lodged the report at
Police Station Theevattipatti, and case under Section 302
was registered at about 4.30 p.m. The dead body was also
subjected to a post mortem examination and nine injuries
were detected thereon, seven allegedly caused by a lathi
and two by stones. The Doctor also opined that the death
had been caused by a lathi injury and that the fatal injury
was injury No.1. The Trial Court relying on the evidence
of PW.1 (Narayanan), the only eye-witness, convicted the
accused A.1 under Section 304 Part II and sentenced him to
undergo three years' rigorous imprisonment. A.2 and A.3
were convicted and sentenced for the same offence and term
with the aid of Section 34 of the IPC. An appeal was
thereafter taken to the High Court which has confirmed the
conviction and sentence awarded by the Trial Court.
The present appeal has been filed by A.2 and A.3
alone.
Mr. K.K.Mani, the learned counsel for the appellants
has raised only one argument before us. He has urged that
even accepting the prosecution story in its entirety the
vicarious liability under Section 34 of the IPC could not
be fastened on A.2 and A.3 as the facts did not indicate
so. He has pointed out that the incident had happened all
of a sudden when Palanisami was passing by the house of A.1
and there was absolutely no pre-planning and that he too
had caused several blows after picking the lathi from the
spot. It has also been submitted that the common intention
on the part of A.2 and A.3 had also not made out as they
had come to the spot by chance and there was no prior
meeting of minds, and they had caused one simple injury
each on the person of the deceased with stones picked up
from the site. He has accordingly submitted that the
conviction of the two appellants with the aid of Section 34
was not called for.
We have heard the learned counsel for the parties
and also gone through the evidence. Concededly, as per the
post mortem report, injury No.1 on the person of the
deceased was the fatal injury and had been caused by A.1
with a lathi. There is also no reference whatsoever to any
involvement of A.2 and A.3 in the incident in the morning.
It appears that A.2 and A.3 who had been either passing by
or were near the spot picked up stones on the spur of the
moment and caused a simple injury each. It is therefore
evident that A.2 and A.3 could not have had the knowledge
of involvement of A.1 in a situation where death could be
caused. We therefore feel that the conviction of A.2 and
A.3 with the aid of Section 34 was not called for.
We accordingly allow the appeal and order their
acquittal.
Their bail bonds shall stand cancelled.
.................J.
(HARJIT SINGH BEDI)
....................J.
(CHANDRAMAULI KR. PRASAD)
New
Delhi,
January 12, 2011.