As per case facts, a boundary dispute between brothers escalated when the deceased started fencing his property. Appellant Senthil (A-1) attacked the deceased's brother (PW-4) with an Aruval, while Appellant ...
2026 INSC 318 Page 1 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL N o. 1807 OF 2019
SIVAKUMAR …APPELLANT
VERSUS
STATE REP. BY THE INSPECTOR
OF POLICE …RESPONDENT
WITH
CRIMINAL APPEAL N o. 677 OF 2020
SENTHIL @ JANAKIRAM …APPELLANT
VERSUS
STATE REP. BY THE INSPECTOR
OF POLICE …RESPONDENT
J U D G M E N T
MANOJ MISRA, J.
1. These two appeals impugn common judgment and order
of the High Court of Judicature at Madras at Madurai
1 dated
26.03.2019 and 04.04.2019 respectively passed in connected
Criminal Appeal (MD) Nos. 85 and 167 of 2017 . As these
1
High Court
Page 2 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
appeals impugn common judgment and order , they have been
heard together and are being decided by a common judgment.
FACTS
2. Appellant Senthil (hereinafter referred to as A-1) and
appellant Sivakumar (hereinafter referred to as A-2) were tried
together along with two other persons , namely, Punitha
(hereinafter referred to as A-3) and Jayanthi (hereinafter
referred to as A-4) for offences punishable under Sections
294(b), 323, 324 and 302 read with Section 34 of the Indian
Penal Code, 1860
2 arising from Crime No. 189 of 2014
registered at Police Station Thiruvidaimaruthur.
3. The prosecution case, in brief, is as follows: Ganesan
and Kaliyamurthy (the deceased) were real brothers. Ganesan
died a decade earlier. A-1 is son of Ganesan whereas A-3 and
A-4 are daughters of Ganesan. A-2 is husband of A-3. Ganesan
and the deceased shared a common boundary regarding which
there was a dispute. On 20.09.2014, at around 11:30 a.m.,
when the deceased was fencing his property, A -1 to A-4
objected to it. However, the deceased insisted on his right to
2
IPC
Page 3 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
fence the property which infuriated A-1. As a result, A-1 took
an Aruval (a sickle like tool used for harvesting crops) and
aimed a blow on the deceased. Seeing this, the deceased’s
brother Kalaivanan (PW-4) intervened to protect the deceased.
As a result, the blow fell on PW-4’s shoulder. Thereafter, A-1
struck another blow on PW-4’s leg and injured his toe. In this
melee, when the deceased went to rescue PW-4, A-2 lifted a log
and gave a hard blow on the deceased’s head. As a result, the
deceased fell unconscious. When the deceased was lying
unconscious on the ground, A-3 and A-4 attacked the deceased
and PW4 with sticks and thereafter, the accused ran away.
4. The deceased and PW-4 were rushed to the hospital,
where Dr. Kamarul Jamal (PW15) examined the deceased for
his injuries and found:
“A lacerated wound of about 10 x 2 x 1 cm. on the scalp
over the left parietal region of the skull.”
PW-15 referred the deceased for further treatment to another
hospital. As a result, the deceased was taken to another
hospital and later shifted to yet another hospital, where he
died.
Page 4 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
5. Autopsy report of the deceased notices:
“One sutured wound measuring 8 x 8 x 1 cm on the left
portion of the head”.
A close examination of the skull revealed a depressed
fracture of the skull bone, elliptical in shape, with fracture of
parietal left region.
Internal examination revealed:
“Lacerated injury over left parietal lobe over skull, fracture
side, cavity of the brain filled up with blood clots.”
Cause of death, as per opinion of the doctor, was
grievous injury on head and brain.
6. PW-4 was also examined for his injuries. As per the
injury report, a cut injury was noticed on his right shoulder
with contusion, and a cut injury was found on his toe.
7. Trial Court charged the four accused (i.e., A-1 to A-4) as
under:
Number
of
Charges
Description of
accused
Provisions under which charged
1. A-1 & A-2 S. 294(b) IPC
2. A-1 S. 324 IPC
3. A-2 S. 302 IPC
4. A-3 & A-4 S. 323 IPC
5. A-1, A-3 & A-4 S. 302 read with S. 34 IPC
Page 5 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
8. After considering the evidence on record, the Trial
Court, vide judgment and order dated 27.02.2017, acquitted A-
3 and A-4. However, A-1 and A-2 were convicted and sentenced
as follows:
Name of the
accused
Provision of
law under
which
convicted
Sentence
Senthil (A-1) 324 IPC Fine of Rs.5,000. On default,
to undergo simple
imprisonment for three
months
Sivakumar(A-2) 325 IPC 2 years rigorous imprisonment
with fine of Rs.10,000. On
default, to undergo simple
imprisonment for three
months
9. Aggrieved by acquittal of A-3 and A-4 from all the charges
and acquittal of A-1 and A-2 from some of the charges
including one punishable under Section 302 IPC, Criminal
Appeal (MD) No. 167 of 2017 was preferred by Chandra (i.e.,
widow of the deceased, who was examined as PW1 in the trial).
Whereas A-1 and A-2, aggrieved by their conviction under
Sections 324 and 325 IPC, preferred Criminal Appeal (MD) No.
85 of 2017.
Page 6 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
10. The High Court, vide impugned judgment and order
dated 26.03.2019, upheld the acquittal of A-3 and A-4.
However, the acquittal of A-1 and A-2 for the offence
punishable under Section 294(b) IPC was reversed and they
were convicted for the said offence. Further, the conviction of A-
1 under Section 324 of IPC was affirmed and he was also
convicted under Section 304 Part II read with Section 34 IPC.
Whereas conviction of A-2 for the offence under Section 325 IPC
was altered to one under Section 304 Part II IPC. Thereafter,
vide order dated 04.04.2019, the High Court sentenced A-1 and
A-2 as under:
Sl.
No.
Provision of law
under which
convicted
Accused Sentence
1. Section 294(b) IPC Senthil (A1) One month rigorous
imprisonment
2. Section 304 (II) read
with 34 IPC
Senthil (A1) Five years rigorous
imprisonment, with fine
of Rs.1,000/- (Rupees
one thousand only), on
default, to undergo three
months simple
imprisonment
3. Section 324 IPC Senthil (A1) Fine of Rs.5,000/-, on
default, to undergo
simple imprisonment for
three months, as imposed
by the trial Court
4. Section 294(b) IPC Sivakumar
(A2)
One month rigorous
imprisonment
5. Section 304 (II) IPC Sivakumar
(A2)
Five years rigorous
imprisonment, with fine
of Rs.1,000/- (Rupees
one thousand only), on
Page 7 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
default, to undergo three
months simple
imprisonment
11. Aggrieved by the judgment and order of the High Court
dated 26.03.2019 and 04.04.2019 respectively, these two
appeals have been filed.
12. We have heard Sri S. Nagamuthu, learned senior counsel
for the appellants; and Mr. Sabarish Subramanian , learned
counsel for the Respondent-State.
SUBMISSIONS ON BEHALF OF SIVAKUMAR (A -2)
13. On behalf of A-2, the submissions are as follows:
(i) There is no evidence on record to justify
conviction under Section 294(b) IPC;
(ii) There was no intention of causing such bodily
injury as is likely to cause death, and the injury
was not inflicted with the knowledge that it is likely
to cause death, therefore, A-2 cannot be held guilty
of committing culpable homicide.
(iii) Admittedly, the accused and the deceased were
related to each other and shared a common
boundary regarding which there was a dispute.
The incident occurred because the deceased
insisted to fence the disputed boundary despite
Page 8 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
objection from the accused side. In such
circumstances, passions surged and in that heat of
the moment a blow was inflicted without aiming
the head. As the blow fell on the head accidentally,
the offence of culpable homicide is not made out.
(iv) It is clear from medical report(s) that except a
solitary injury on the head, no other injury was
found on the body of the deceased. Besides, the
prosecution case that the deceased was assaulted
after he fell down has been disbelieved. In these
circumstances, it is clear that there was no
intention whatsoever to cause death or such bodily
injury which in ordinary course is likely to cause
death. Moreover, the blow which struck the head of
the deceased was not aimed at his head though it
fell accidentally on his head. Hence, conviction of
A-2 for the offence punishable under Section 304
Part II is unsustainable. Therefore, the Trial Court
was justified in convicting the appellant for offence
punishable under Section 325 IPC and not 304
Part II.
SUBMISSIONS ON BEHALF OF SENTHIL (A-1)
14. On behalf of A-1, in addition to the submission that no
offence punishable under Section 294 of IPC is made out, it was
argued that A-1 cannot be saddled with the liability of culpable
Page 9 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
homicide with the aid of Section 34 IPC as there was nothing to
establish that A-1 and A-2 shared common intention of causing
either death or such bodily injury as in the ordinary course
would cause death.
SUBMISSIONS ON BEHALF OF S TATE.
15. Per contra, on behalf of the State, it was argued that from
the evidence on record it is established that the deceased was
abused by using the word “bastard” , therefore, the offence
punishable under Section 294(b) IPC is made out. Besides, the
High Court was justified in convicting A-2 for the offence
punishable under Section 304 Part II IPC and since A-1 was
first to attack the deceased, though the blow fell on PW-4, it
could be said that he shared common intention with A -2,
conviction of A-1 under Section 304 Part II IPC with the aid of
Section 34 IPC is justified. It was thus, prayed that the appeals
be dismissed.
DISCUSSION.
16. We have considered the rival submissions and have
perused the materials on record. There is no dispute as regards
the following facts:
Page 10 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
(i) The deceased and the accused were
neighbours as well as close relatives who
shared a common boundary regarding which
they had a dispute.
(ii) The incident occurred because the
deceased was fencing the boundary despite
objection by the accused.
(iii) Prior to exchange of blows there were hot
talks between the deceased and the accused.
(iv) Injuries were caused by use of Aruval and
a log. Aruval is an agricultural tool. There is
no evidence that the accused had brought
them for assaulting the deceased and PW-4
from some other place. Therefore, probability
of those articles being lifted from the spot is
high, indicating that in the heat of the
moment, those articles were picked up from
the spot and used.
(v) Injury caused to PW-4 is not proved to be
grievous. Admittedly, A-1 caused injury to
PW-4 whereas A-2 caused injury to the
deceased. The deceased suffered no other
injury except a solitary blow on the head.
Page 11 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
17. Having taken note of the aforesaid facts, we would first
consider whether the offence punishable under Section 294(b)
IPC is made out or not. Section 294 IPC reads thus:
“294. Obscene acts and songs.— Whoever, to the
annoyance of others -
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad
or words, in or near any public place,
shall be punished with imprisonment of either
description for a term which may extend to three
months, or with fine, or with both.”
18. The word “obscene” is not specifically defined in IPC.
However, by referring to Section 292 of IPC, it has been
construed as something which has the potential to appeal to
prurient interest of a person
3.
19. In Apoorva Arora & Anr. v. State (Govt. of NCT of
Delhi) & Anr.
4, this Court, by referring to Section 292 of IPC
and Section 67 of Information Technology Act, 2000, observed:
“17. It is evident that “obscenity” has been similarly
defined in Section 292 and Section 67 as material
which is:
(i) lascivious; or
(ii) appeals to the prurient interest; or
(iii) its effect tends to deprave and corrupt persons
who are likely, having regard to all relevant
circumstances, to read, see or hear the matter
contained or embodied in it.”
3
See: Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan & Another, (2006) 8
SCC 433
4
(2024) 6 SCC 181
Page 12 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
Besides, it was observed, obscenity must be judged having
regard to contemporary mores and national standards.
Additionally, it was observed:
“41. … It is well established (as per para 41, SCC)
from the precedents cited that vulgarity and
profanities do not per se amount to obscenity.
While a person may find vulgar and expletive-filled
language to be distasteful, unpalatable, uncivil,
and improper, that by itself is not sufficient to be
“obscene”. Obscenity relates to material that
arouses sexual and lustful thoughts, which is not
at all the effect of the abusive language or
profanities that have been employed in the episode.
Rather, such language may evoke disgust,
revulsion, or shock. …”
20. Seen in the light of the aforesaid decision, in our view,
mere use of the word ‘bastard’, by itself, is not sufficient to
arouse prurient interest of a person. More so, when such words
are commonly used in modern era during heated conversations.
We are, therefore, of the view that conviction of the appellants
for offence punishable under Section 294(b) IPC is not
sustainable and is hereby set aside.
21. Now, we shall examine whether A-1 could be said to have
shared common intention to cause such bodily injury to the
deceased which resulted in his death. The facts of the case
reflect that A-1 charged on the deceased by taking an Aruval in
his hand but, when PW-4 intervened, gave two blows to PW-4,
Page 13 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
which did not result in any grievous injury. No doubt, it has
come in the testimony of PW-4 that A-2 took a log and gave a
hard blow on the head of the deceased while uttering that all
problems are because of the deceased and it is better that he
dies, but this statement is not attributed to A-1. Besides, there
is no evidence that A-1 exhorted A-2 to strike the deceased.
Thus, upon consideration of the circumstances in which the
incident unfolded and the manner in which the deceased was
assaulted by A-2, besides there being no reliable evidence to
show that A-1 had beaten the deceased after he fell to the
ground, in our view, it would not be safe to hold that A-1
shared common intention with A-2 to cause such bodily harm
to the deceased as is likely to cause his death. In this view of
the matter, the conviction of A-1 under Section 304 Part II read
with Section 34 IPC is set aside. However, conviction of A-1 for
causing injury to PW -4 and thereby committing offence
punishable under Section 324 IPC is confirmed.
22. Now we shall consider whether the conviction of A-2 for
the offence punishable under Section 304 Part II IPC is
justified. Notably, the Trial Court had convicted A-2 for the
Page 14 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
offence punishable under Section 325 IPC whereas the High
Court found him guilty of the offence punishable under Section
304 Part II IPC.
23. To convict an accused for commission of an offence
punishable under Section 304 Part II IPC, it must be proved
that the accused has committed culpable homicide as defined
in Section 299 IPC
5. The High Court came to the conclusion
that A-2 committed culpable homicide because he had
knowledge that by his act he is likely to cause death. While
holding so, the High Court took notice of the fact that the injury
sustained by the deceased discloses fracture of the skull and
5
299. Culpable homicide. - Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.
Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the
knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads
on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to
be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be
guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not
knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of
culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he
knew was likely to cause death.
Explanation 1.—A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death.
Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to proper remedies and
skilful treatment the death might have been prevented.
Page 15 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
there were blood clots in the brain. Further, there was no
evidence that the death had occurred on account of improper
treatment. The High Court had also noticed the evidence on
record which indicated that when A-2 had lifted the log he
uttered such words which indicated that A-2 had targeted the
deceased, to finish him off.
24. On a careful scrutiny of the evidence on record, we do
not find any error in the conclusion of the High Court that A-2
is guilty of an offence of culpable homicide. However, whether
A-2 was liable to be convicted for culpable homicide not
amounting to murder punishable under Section 304 Part I of
IPC, is a question which we refrain to address in absence of an
appeal by the State, or the victim of the crime, for altering the
conviction to a graver offence. In the circumstances, we confirm
the conviction of A-2 under Section 304 Part II IPC.
25. Now, we shall consider whether the sentence awarded by
the High Court is appropriate, or too harsh. High Court
convicted A-1 for offence punishable under Section 324, Section
Explanation 3.—The causing of the death of a child in the mother's womb is not homicide. But
it may amount to culpable homicide to cause the death of a living child, if any part of that child
has been brought forth, though the child may not have breathed or been completely born.
Page 16 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
294(b) and Section 304 Part II read with 34 IPC. In so far as the
conviction of A-1 under Section 294(b) and Section 304 Part II
read with 34 IPC is concerned, we have already held above that
the same is unsustainable. However, we have affirmed his
conviction under Section 324 IPC. Under Section 324 IPC, A1
has been awarded fine of Rs. 5,000 and a default sentence of 3
months. As per the custody certificate dated 21.02.2020
annexed along with the memo of appeal , A-1 (Senthil) has
served 01 month 25 days of sentence as on 21.02.2020. The
record reveals that he was released on bail by order of this
Court dated 13.10.2020. In this view of the matter, it appears
that the appellant has partially undergone the default sentence
awarded to him for the offence punishable under Section 324
IPC. Consequently, we reduce and alter the sentence awarded
to A-1 (Senthil) to the period of sentence already undergone.
26. In so far as A-2 (Sivakumar) is concerned, since we have
affirmed his conviction under Section 304 Part II IPC, it would
have to be considered whether the sentence awarded to him
needs to be altered or not. The High Court has awarded him
five years rigorous imprisonment with fine of Rs. 1,000. The
Page 17 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
custody certificate dated 30.04.2019 issued by Central Prison,
Madurai indicates that by the date of the certificate, the
appellant had served 02 months and 10 days of sentence. The
record reveals that by order of this Court dated 29.11.2019,
appellant Sivakumar (A-2) was granted bail subject to the
satisfaction of the Trial Court. In the circumstances, it appears,
the appellant Sivakumar (A2) has, by now, served less than 01
year of sentence.
27. Having regard to the fact that the incident is of the year
2014 and was preceded by an altercation between neighbours,
who are close relatives, arising from a boundary dispute, and
injury was not caused by using a dangerous weapon, but by a
log lying on the spot, and only a solitary blow was inflicted in
the heat of the moment, we are of the view that ends of justice
would be subserved if the sentence awarded to A -2
(Sivakumar), under Section 304 Part II IPC, is reduced to 03
years from 05 years R.I.
28. Consequently, both the appeals are partly allowed to the
extent mentioned above. Appellant Senthil (A-1) is on bail, he
need not surrender. Insofar as appellant Sivakumar (A2) is
Page 18 of 18
Criminal Appeal No. 1807/2019 & 000677/2020
concerned, he shall surrender before the Court concerned and
serve out the remaining reduced sentence as ordered above.
….…………. ......................................J.
(PAMIDIGHANTAM SRI NARASIMHA )
…………… ......................................J.
(MANOJ MISRA)
New Delhi;
April 06, 2026
Legal Notes
Add a Note....