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CASE NO.: Appeal (crl.)  510 of 2005

PETITIONER: Munivel

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T WITH Criminal Appeal No. 287/2006 @ S.L.P.(Crl.)No.997/2006

S.B. SINHA, J :

       These two appeals arising out of the same judgment and  involving common question of law and fact were taken up for hearing  together and are being disposed of by this common judgment.

The Appellants herein, Munivel (original accused No.5), Kalith  (original accused No.4), Selvam @ Silvakumar (original accused  No.1), Sasi @ Sasikumar (original accused No.2) and Madhu @  Madhusudanan (original accused No.3) were convicted under Section  302 read with Section 149 of the Indian Penal Code (’IPC’ for short)  and sentenced to undergo rigorous imprisonment for life.  Accused  No.2 was also convicted under Section 307 IPC and sentenced to  undergo ten years rigorous imprisonment.  Accused No.3 was  convicted for an offence under Section 302 IPC and sentenced to  undergo life imprisonment.  Accused No.4 was also convicted under  Section 326 IPC and sentenced to undergo rigorous imprisonment for  seven years.  Accused No.5 was also convicted under Section 324 IPC  and sentenced to undergo three years rigorous imprisonment.  All the  sentences were, however, directed to run concurrently.  In an appeal  preferred by the afore-mentioned accused persons, the High Court  modified the judgment of the learned trial court in the following  terms:

"Under those circumstances, the conviction  imposed by the Trial Court on A-1, A-2 and A-5 or  the offence under Section 302 read with 149 IPC,  is perfectly correct.  But a slight modification  could be made as regards A-1 and A-2.  In the  case, A-3 has been convicted only for Section 302  IPC simplicitor.  A-1 has been convicted for the  offence under Section 302 read with 149 IPC.  But  both A-1 and A-3 have attacked the deceased and  caused injury.  Though the injury caused by A-1 is  not fatal, it would be appropriate to convict A-1  and A-2 for the offence under Section 302 read  with 34 IPC.  Therefore, the conviction imposed  on A-1 and A-2 is modified to the extent that they  are convicted for the offence under Section 302  read with 34 IPC, instead of Section 302 read with  149 IPC and A-2’s conviction for the offence

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under Section 307 IPC is confirmed."

The High Court confirmed the judgment of conviction and  sentence imposed by the Trial Court in respect of other offences on  accused Nos.3, 4 and 5 under Sections 302, 326, 324 and 302 read  with Section 149 IPC respectively.   

Accused Nos. 1, 2 and 3 preferred the special leave petition  before this Court, but the same was dismissed.   

Mr. A.T.M. Rangaramanujam, learned Senior Counsel and Mr.  P. Ramesh, learned counsel appearing on behalf of the Appellants in  these appeals, raised only two contentions before us - (i) having  regard to the role played by them, they cannot be said to have  committed an offence under Section 302 IPC read with Section 149  IPC; and (ii) no case has been made out even for convicting them for  offences under Sections 326 IPC and 307 IPC respectively.   

Before we advert to the merit of the matters, we may briefly  notice the following facts:

P.W.1-Raja and P.W.2-Kannan are the sons of deceased Babu  Naidu.  P.W.3-Venkatesan is his brother.  Tmt. Balamani, who  examined herself as P.W.4, is the wife of the deceased.  P.W.5-Leela  and P.W.6-Gandhimathi are the daughters of the deceased.  P.W.7- Srinivasan and P.W.8-Panneer Selvam were the friends of the  deceased.  P.W.10-Tmt. Pushpa is the wife of afore-mentioned P.W.3- Venkatesan.  The accused Nos.1 and 2 were brothers, whereas  accused Nos. 3 and 5 are their associates.  The mother of the accused  Nos. 1 and 2, Jayalakshmi, was distantly related to the deceased.  The  family of both the parties were carrying on business of chit  transactions.  P.W.4-Balamani joined chit transactions carried out by  the said Jayalakshmi, but allegedly did not pay the amount payable  therefor regularly.  Further, allegedly, two other subscribers  introduced by P.W.4-Balamani had also not paid back the chit amount  to Jayalakshmi, as a result whereof there used to be frequent quarrels  between the parties.   

It is further alleged that a proposal made for marriage of  accused No.1-Selvam with a girl failed.  The relatives of the said girl  came to the village for inquiring about the suitability of the accused  No.1.  On suspicion that certain informations were allegedly furnished  by Babu Naidu, the deceased, pursuant whereto the girl’s family  declined to give her in marriage with Selvam, they bore grudge  against the family of the deceased.  On 16.3.1994, P.W.1 was in his  shop.  He was joined by P.W.2-Kannan.  Both of them were  proceeding to their houses at about 12.15 in the mid-night.  When they  reached near their houses, the accused persons accosted them with  deadly weapons.  Selvam allegedly shouted at P.W.2-Kannan saying  that in view of their conduct, the image of his family had been spoiled  and so his entire family should be done away with; whereupon  accused No.2-Sasi stabbed P.W.2 on his abdomen as a result whereof  he cried out.   His intestines came out.  Upon seeing the said ghastly  sight, P.W.1-Raja cried aloud, ran into his house and informed his  parents about the said occurrence, whereupon they rushed to the scene  of occurrence.  Accused No.3-Madhu, allegedly, stabbed the deceased  on his shoulder and right thigh.  When he turned round and tried to go  into the house by climbing the stairs, accused No.1 prevented him  from doing so and hit him with a knife on his head.  On hearing the  cries, P.W.3-Venkatesan, a neighbour, came out of his house along  with his wife, P.W.10.  They saw the incident.  When they came to the  scene of occurrence, the accused No.4-Kalith attacked him with a  knife on his hand, as a result whereof P.W.3 suffered an injury on the  back side of his right hand, as also in the fingers.  Seeing the said

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assault, P.W.10 shouted, whereupon accused No.5-Munivel cut the  ring fingers of both her left and right hands.  P.W.7-Srinivasan and  P.W.8-Selvam and other persons by that time arrived at the scene.   The accused persons then fled away.   The deceased and other ’injured  persons’ thereafter were taken to Virugambakkam Police Station.  A  First Information Report (FIR) was lodged.  Thereafter, they were  referred to Royapettah Hospital.  A case was registered for offences  under Sections 147, 148, 448, 326 and 307 of the Indian Penal Code.   

On the basis of the said FIR, P.W.19-Venkateswaran, the  Inspector of Police, took up investigation and visited the scene of  occurrence.  He, thereafter, received the message as regard death of  the said Babu Naidu, whereafter Section 302 IPC was also added in  the FIR.  Keeping in view the nature of injuries suffered by P.W.2, a  dying declaration was also recorded by a Magistrate.  During the  course of investigation, the accused persons were arrested and it is  stated that on confession having been made by the accused Nos.3 and  4, two knives marked as M.Os. 4 and 7, as well as a shirt M.O.27  were recovered from their possession.  Similarly, on alleged  confession made by the accused Nos. 2 and 4, other weapons and  knives marked as M.Os. 3, 5 and 6 were recovered.  All such  recoveries were made on 18.3.1994.   

The part played by each of the Appellants herein and the extent  thereof were categorically stated by all the eye-witnesses ’injured  persons’ viz., P.Ws. 2, 3, 4, 5, 6, 7, 8 and 10.

As the statements of all the material witnesses are identical and  corroborative of each other, we would notice hereinbelow the  statements of P.W.1 only, which reads:

"\005..On 16.3.94, at 12 O’clock in the night, I was  remaining in my shop.  At that time, my brother  Kannan who was working under a Doctor came to  me as usual to take me home along with him.  Both  of us were on our way home.  The five accused  came running with knife.  Then Selvam intercepted  us and said, "You have not given the chit amount  to my mother; you have prevented the girl who  was to be married to me; I will completely destroy  all of you with your family".  A-2 Sasi with the  knife he was holding in his hand stabbed Kannan  at the left side of his abdomen.  Because of this,  my elder brother’s intestine has come out.  I  screamed out and immediately ran to our up-stair.   I told my mother that, my brother was stabbed by  them.  At once, my father, came down from the  upstair, without a shirt on him.  At that time,  Madhu, mechanic, hacked him at his right shoulder  and right thigh.  (He showed the length of that  knife by his hand and said, he had hacked with  such a knife).  A-1 Selvam with a curved knife  hacked my father at the backside of his head.  My  father swooned and fell down in a pool of blood.   I, my mother, my sisters screamed out; ’Oh’.  At  that time, my uncle Venkatesan and his wife  Pushpa came running from their house, nearby.   The accused Kali hacked Venkatesan at his right  hand, back and fingers.  My aunt Pushpa screamed  out "Aioh".  At that time, Munivel cut forcibly two  of the fingers of my aunt Pushpa.  Seenivasan,  Selwaraj, Panneerselvam, Babu and Mohan chased  the accused who were running away.  The accused  got into an auto at Arunachalam road and fled."   

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It is not disputed that P.W.3 and P.W.10 are independent  witnesses.  It is also not disputed that they suffered some injury on  their hands.   

As regard the nature of injuries suffered by P.W.10 and her  husband, P.W.3 was not cross-examined.

The injuries on the person of P.W.3 were medically examined  by P.W.11-Dr. S. Loganathan.  The said witness stated:

"\005.On 17.3.94 at 1 O’clock in the night,  Venkatesan, around 45 years, was brought by  P.C.8120.  He stated that, he was also attacked at  the same time as has been seen in the Accident  Register related to Kannan.  On examining him, he  was found in his normal senses and he could also  talk.  His ring finger on his right hand was seen  cut.  There was an incised injury seen on his back  and it measure 2 x 1 x 2"CM.  I sent him to the  Doctor for emergency treatment.  The aforesaid  injury could have been came at the time and  manner said by him.  Ex.P.5 is the copy of the  related Accident Register.  In that early morning at  1.05 hrs, one Pushpa aged 30 was brought by the  aforesaid Police constable and she was in her  senses and she stated that she was attacked as has  been seen in the aforesaid Accident Register and  she could talk.  The ring finders of both of her  hands were damaged.  At that time, there was  simple injury with abrasion noticed on the ring  fingers.  I sent her to the duty doctor for treatment.   The occurrence could have happened at the time  and manner stated by her.  Ex.P.5 is the copy of  the Accident Register given by me."

 P.W.10, Pushpa, in her evidence stated:

"\005.The witness Venkatesan is my husband.  In the  3rd month of 1994, on one day, in the night, at 12  O’clock, I was keeping awake in my house.  At  that time my husband was asleep.  On hearing  noise, we went out.  The 5 accused were having  knives with them.  A4 attacked my husband with a  knife at his right hand and back.  On seeing it, I  screamed.  At once A5 cut my fingers forcibly  with a knife.  Now, I am unable to move my right  hand ring finger and my left hand ring finger.   After a while, Raja took us by an auto to the Police  Station.  From there, we went to the Royapettai  hospital."

The contention of the learned counsel appearing on behalf of  the Appellants is that the doctor had not disclosed the dimension of  the said injuries.  In relation to the injury suffered by P.W.10-Pushpa,  it was also not stated whether the injury was a deep incised wound or  not.  Our attention has moreover been drawn to the fact that according  to the doctor, P.W.10 suffered an abrasion.  Criticism was also made  to the effect that although the injured were sent to the duty doctor, he  had not been examined.   

We may, at this juncture, notice the following findings arrived  at by the learned Sessions Judge:

"\005As Kalith had cut off the right hand ring  finger of P.W.3 Venkatesan and hacked him on his

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back and wounded him; I find him guilty of  offence u/s 326 IPC.         The accused Munivel has attacked P.W.10  Pushpa with knife and inflicted abrasions and cut  away her ring fingers on both her hands.  In the  related copy of the Accident Register Ex.P.6, the  concerned Dr. Loganathan has failed to mention  this fact and this shows, along with certain other  truths, that, he has failed to discharge his duty.   Hence, though there are no clear evidence to show  that, Pushpa has been inflicted injuries in such a  manner to lose her ring fingers in both her hands  and seen in a shivering state; I find the accused  Munivel to be guilty of offence u/s 324 I.P.C."

It was submitted that in view of the afore-mentioned finding, it  must be held that no injury was caused to P.W.10-Pushpa by the  Appellant-Munivel and in any view of the matter, her statements  before the court being contrary to the medical evidence, the same  should not have been accepted by the trial court as well as the High  Court.

It was further submitted that having regard to the fact that the  Appellants herein had not participated in the assault on the deceased  or his family members, and further having regard to the fact that they  are not related to the accused Nos. 1 and 2, with whom the deceased  and his family members were stated to be on inimical terms, they  cannot be held guilty of the offence punishable under Section 302/149  IPC.  The learned counsel would contend that in view of the  statements made by the prosecution witnesses, it is highly doubtful  that the Appellants herein had participated in the occurrence and more  so because the weapons seized from them had not been sent for  chemical examination.  It was further pointed out that although a  finger of P.W.3 was said to have been severed, the same was not  recovered by the Investigating Officer, P.W.19.

Mr. Subramonium Prasad, learned counsel appearing on behalf  of the State, on the other hand, supported the findings of the courts  below.   

The incident in question is not denied or disputed.  Death of  Babu Naidu is also not disputed.  The fact that P.Ws. have received  injuries on their persons, is also not disputed and otherwise stand  proved.  A finding of fact has been arrived at by the trial Judge, as  also by the High Court that the offences, with which the Appellants  herein together with other three accused persons were charged with,  have been fully proved.  We have noticed hereinbefore that the special  leave petition filed by the main accused, namely, accused Nos.1, 2  and 3 has been dismissed.   

The primary question which would, therefore, arise for our  consideration is as to whether the Appellants herein can be said to  have formed a common object with accused Nos.1, 2 and 3 to commit  the alleged offences or not.   

All the accused persons came together.  All of them were armed  with knives.  They accosted P.Ws. 1 and 2. They caused the death of  the deceased round about mid-night on the street.  The first incident  took place near the house of the deceased.  The stab injury was given  to P.W.2-Kannan as a result whereof his intestines came out.  When  P.W.1, on seeing this, went inside the house and narrated the same to  his parents and others, the deceased and his wife P.W.4 came out  followed by their daughters P.W.5 and P.W.6.  The deceased was not  only given a fatal blow by the accused No.2, when he intended to save

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himself from further attack and was running towards the stairs, he was  prevented by accused No.1 from doing so.  He was assaulted by him.   P.W.3 and P.W.10 came to the scene of occurrence on hearing their  cries.  P.W.3, admittedly, is a constable.  It is, therefore, but natural  that he sought to intervene.  A grievous injury was caused to him by  the Appellant-Kalith.

It is also natural that seeing her husband being assaulted by a  knife, P.W.10 would make an attempt to intervene.  She was also  assaulted with a knife resulting in her suffering injuries on both of her  hands.  We may now deal with the criticism that the medical evidence  and the ocular evidence in this case is wholly unwarranted.  P.W.11- Dr. S. Loganathan in his deposition referred to the Accident Register.   So far as an injury received by P.W.3 is concerned, he categorically  stated that not only his ring finger on right hand had been seen cut, he  also suffered an incised injury on his back, whereupon he was sent to  the duty doctor for emergency treatment.  As regards the injury  suffered by P.W.10, the doctor referred to the Accident Register.  He  found that the ring fingers of both her hands were injured.  He might  have mistakenly stated that the same appeared to him, at that time, to  be a simple injury with abrasion, but the fact remains that she was also  sent to the duty doctor/emergency for treatment, which indicates that  the contents of the injury report was correct.

It may be that the duty doctor had not been examined, but the  same is not very material for the purpose of the present case.   

Two facts in this regard are of some significance: firstly, as  regard the nature of injuries suffered by P.W.10, she had not been  cross-examined; secondly, P.W.11 referred to the Accident Registers  wherein, as regard the injuries suffered by P.W.3 and P.W.10, it was  recorded:          

"P.W.3 (Venkatesan):

Nature of injury        : Alleged assault as per  and treatment             AR No.029471 (State simple, grievous or opinion reserved)

O/E     : Patient conscious (N.C) Right middle           Finger cut off.           Cut injury over back of chest about           2" x 1=".

         Treatment given Referred to DAOS."

P.W.10 (Pushpa):

Nature of injury        : Alleged assault by known  and treatment-              person at about 12.15 a.m. (N.C) (State simple,      residing at the above address  grievous                    by (N.C) knife.  opinion reserved)

O/E     : Patient conscious (N.C)             cut injury Left ring finger           and right ring finger.                      Treatment given Refer to DAOS."

It was, therefore, clearly established that the said witnesses  suffered injuries.  

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Doctor, P.W.11, examined them at about 1 a.m. on 17.3.1994,  that is, immediately after the incident took place.  We do not find any  material contradiction between the ocular evidence and medical  evidence.  The genuineness or otherwise of the said Accident  Registers is not in question.  Correctness of the entries made therein is  not in issue.  Even no suggestion has been given to the doctor that the  entries made in the said Accident Registers were not correct.

Only because the Investigating Officer was negligent and did  not make any attempt to recover the cut fingers of P.W.3, the same by  itself would not be sufficient to discard the consistent evidences of all  the eye-witnesses.   

For the purpose of invoking Section 149 of the Indian Penal  Code, the entire incident must be taken into consideration.  The  occurrence resulted in death of one person and suffering of grievous  injuries by some of the prosecution witnesses were part of the same  transaction.   

The Appellants, as stated, came with the other accused persons  with deadly weapons at mid-night.  The active role played by both the  Appellants herein, clearly stand proved by the evidence of the  prosecution witnesses.    

We have noticed hereinbefore that not only at the dead of night  P.W.1 and other witnesses were attacked, accused Nos.1 and 2 also  went inside the house of the deceased and prevented the deceased  from escaping from further assault.    

Whoever had come to the scene of occurrence and tried to  intervene, had suffered injuries at the hands of one or the other  accused persons.  P.W.3 and P.W.10, it is true, were related to the  deceased, but, they were also related to accused Nos. 1 and 2, as  admittedly, both the families are related to each other.  It is not the  case of the Appellants or for that matter the accused Nos. 1 and 2 that  P.W.3 and P.W.10 were inimical to them.  There is nothing on record  to show that they bore any grudge towards them.  It is in the afore- mentioned fact situation, the role played by the Appellants herein  must be considered.   

They did not make any attempt to stop the Appellants Nos.1  and 2 from continuing assault on the family members of P.W.2.   They  had not only watched as to how P.W.2-Kannan, son of the deceased,  the deceased himself, P.W.-4 wife of deceased and the two daughters,  i.e., P.W.5-Leela and P.W.6-Gandhimathi, suffered injuries after  injuries at the hands of the accused Nos.1 and 3, but even when  P.W.3-Venkatesan came to intervene, a grievous injury was caused by  Appellant-Kalith and when thereafter P.W.10, a lady intervened, she  also had sustained injuries on her hands.  It is immaterial, in the afore- mentioned fact situation obtaining herein that P.W.10 suffered simple  injury, in view of the fact that whoever had come to interfere had been  dealt with one way or the other by the accused persons.

We, therefore, have no hesitation in rejecting the contentions of  the learned counsel for the Appellants that the medical evidence is  contrary to the ocular evidence and Section 149 is not attracted.    In  Triloki Nath & Ors. vs. State of U.P. [(2005) 9 SCALE 76], this  Court opined:

"\005For the purpose of attracting Section 149 of the  IPC, it is not necessary that there should be a pre- concert by way of a meeting of the persons of the  unlawful assembly as to the common object.  If a  common object is adopted by all the persons and

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shared by them, it would serve the purpose."

Yet again in Bishna @ Bhiswadeb Mahato & Ors. vs. State  of West Bengal [(2005) 9 SCALE 204], the afore-mentioned  principle has been reiterated.

Section 149 of the Indian Penal Code provides for vicarious  liability.  If an offence is committed by any member of an unlawful  assembly in prosecution of a common object thereof or such as the  members of that assembly knew that the offence to be likely to be  committed in prosecution of that object, every person who at the time  of committing that offence was member would be guilty of the  offence committed.  The common object may be commission of one  offence while there may be likelihood of commission of yet another  offence, the knowledge whereof is capable of being safely attributable  to the members of the unlawful assembly.  Whether a member of such  unlawful assembly was aware as regard likelihood of commission of  another offence or not would depend upon the facts and circumstances  of each case.  Background of the incident, the motive, the nature of  the assembly, the nature of the arms carried by the members of the  assembly, their common object and the behaviour of the members  soon before, at or after the actual commission of the crime would be  relevant factors for drawing an inference in that behalf. [See  Rajendra Shantaram Todankar vs. State of Maharashtra & Ors.  reported in (2003) 2 SCC 257.]  

It is also well-settled that if death had been caused in  prosecution of the common object of an unlawful assembly, it would  not be necessary to record a definite or specific finding as to which  particular accused out of the members of the unlawful assembly  caused the fatal injury.  [See State of Rajasthan vs. Nathu & Ors.  reported in (2003) 5 SCC 537.]

For the foregoing reasons, in our view, there is no merit in these  appeals.  The appeals are dismissed accordingly.