Paragraph numbers below are the court’s original numbering, recovered from the source text.
4. The doctor was of the opinion that the deceased appeared to have died of shock and haemorrhage, as a result ·F of the injuries sustained by him about 10 to 11 hours prior to the post-mortem. The doctor was of the opinion that the injuries could have been caused with a weapon like material object No.1 – knife and death must have occurred instantaneously.
5. The appellant in his statement under section 313 of the Code of Criminal Procedure stated that the deceased attempted to murder him with a knife in the Government hospital and during the course of struggle between the deceased and the accused, even the accused sustained injuries and A according to him he was also beaten by the deceased and the brother-in-law of the second accused stabbed the de.ceased in self defence. It rriay be pertinent to mention that the statement under section 313 is not corroborated by the medical evidence. The deceased had reqeived multiple injuries on the vital parts B of the body which led to his death. The appellant was examined in the government hospital, Salem and the following minor and superficial injuries were found on him: "1. Multiple linear abreasions of varying sizes seen over the chest wall. 2. A lacerated injury 0.5 cm x 0.5 cm seen over the "-·· right little finger. 3. A lacerated injury 0.5 cm x 0.5. cm seen over the tip of the right thumb. 4. Two abrasions with dull black colour seen over the. left thumb near the root of the right terminal phalanx .. 5. Two abrasions dull black in colour seen over the right side of the front of neck and on the left side of the front ofineck."
6. PW2 is the grand-son of PW1. He was also examined in the case. In his statement he stated as under:- "PW1 Palaniammal is my grand mother and my mother's …_ __ mother. The deceased Murugan is my maternal uncle. On 28.5.1988, my grand-mother PW1 was taking treatment for her injury in the Head Quarters Hospital at Salem. On that day, at 4.45 p.m., I went to Salem for seeing my grand- mother PW1 Palaniammal. When I was going into the ward where my grand-mother was lying, my maternal uncle · Murugan came running from the ward with a stab injury on his stomach and crying "Ayo, Appah, Amma". At that time the first accused. Rathinam and the second accused Moorthy, each of them having a knife in their hands, ran MOORTHY v. STATE OF TAMIL NADU [DALVEER BHANDARI, J.] chasing my maternal uncle Murugan. The 3rd accused Kuppayee and the two juvenile accused also ran behind them. On seeing the accused coming with knife in their hands, I got out of the way. My uncle who was chased by the accused fell down due to tripping on the steps. My uncle Murugan fell down on face downwards. The first accused Rathinam and the second accused Moorthy stabbed on his back repeatedly and simultaneously. My uncle rolled turning his face upwards. At that time a stab fell on his hand. I did c not notice correctly who had stabbed. Both the accused had stabbed my uncle simultaneously on his chest, breast and the stomach."
7. PW3 is the trained nurse on duty. PW4 is admitted as inpatient in Male Surgical Ward. PW5 is the Sub-Inspector. _… r
8. The Trial Court vide judgment dated 30th March, 1990 acquitted the accused. The respondent-State of Tamil Nadu filed an appeal against the said judgment of acquittal before the High Court of Madras. The High Court re-examined and re- .. E evaluated the entire evidence on record and came to a definite conclusion that acquittal of the appellant is unsustainable and because according to the Trial Court the material available on record established the guilt of the appellant particularly when ,…_.._ the appellant in a statement under section 313 Cr.P.C. admitted his involvement in the occurrence which took place at 4.45 p.m. on 18.5.1988 in the hospital. The High Court had observed that even according to the case of the appellant he caused those injuries in his self-defence. The appellant has stated before the High Court that he cannot be convicted solely on the basis of the stand taken by him when he was questior;ied under section 313 of the Code of Criminal Procedure.
The High Court has placed reliance on the judgment of this court in State of UP. v. Lakhmi 1998 SCC 4 SCC 336. The relevant portion of the judgment which was relied on by the High Court reads as A under:- "It cannot be said that statement of an accused recorded under section 313 of the Code does not deserve any value or utility if it contains inculpatory admissions. The. need of .B law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted c person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In very rare instances accused may even admit or.own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognized defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in ihe ·. case. If an accused admits any incriminating circumstance appearing in evidence against him there is no warrant that those admissions should altogether be ignored rnerely on the ground that such admissions Were advanced as '11 defence strategy." .::; _. __
9. Therefore, the statement of the appellant under section 313 cannot altogether be ignored. DW1 clearly stated in his testimony that 2nd accused told him that he sustaine.d injuries when he was involved in the incident at 4.45 p.m. on 18.5.1988 G in the Government hospital at Salem. The High Court on the basis of the evidence on record reached at the definite conclusion that the medical evidence clearly establishes that it 1- … is the 2nd accused who caused number of injuries on the deceased which proved fatal. In this view of the matter, H according to the High Court, the prosecution has clearly MOORTHY v. STATE OF TAMIL NADU . 28.1 . . [DALVEER BHANDARI, J.J .. established the invo.lvement of the 2nd accused with the overt act attributed against him vis-a-vis the deceased. According tojhe High 'Court, the tfial 'Court seriously erred in ·acquitting ,_' .,, ! J. ..,, lt j, •, ''.' ·.,~};. ),.'. the appellant on the basis-of overwhelming evidence on record. According to the High Court, the appellant tlad· exceeded" his right of private defence, therefore the appellant is liable to be convicted for-an offence under section 304 Part I [PC~ for exceeding the right of private defence: Jhe Hig~ Gou.rt in thi!S case while setting aside the Trial Court judgment convicted the appe!larifunder.section 304 Part 1 IPC and sentenced him to seven years of rigorous imprisonment. c
10. We have heard learned counsel for the parties at length and perused the judgments and depositions on record. The deceased had received 20 incised injuries caused on various parts of the body in general and on vital parts of the body in particular. The deceased was killed mercilessly by inflicting ….. twenty incised injuries and mostly on the vital parts of the body .
11. Even if we accept the version of the High Court that the accused had the right of private defence, in the facts and. circumstances of the case, but he had exceeded his right so he was convicted under section 304 Part I IPC.
12. On examination of the injuries on the accused it is clearly borne out that those injuries are very minor and .. + superficial in nature whereas twenty incised injuries inflicted on the deceased were of very serious nature and character. The Sessions Court has gravely erred in acquitting the accused on the face of the testimony of the witnesses in the case. We have to examine the evidence in proper perspective – why should ordinarily PW1, mother of the deceased would falsely implicate the accused and let off the real assailant? Similarly, why PW2, nephew of the deceased would save the real assailant and falsely name the accused?. The High Court in the impugned judgment while reversing the judgment of the Sessions Court convicted the accused under section 304 Part I IPC. (2008] 16 S.C.R.
13. We have :not examined whether in the facts and . circumstances, the!High Court was justified in converting. the sentence from section 302 IPC to section 304 Part I IPC because there is no appeal by the State. · B · 14. The appellant must be convicted at least under section 304 Part I IPC. No Interference is called for. The appeal being devoid of any merit is accordingly dismissed. D.G. · Appeal dismissed.