Supreme Court - Daily Orders
Killer Thiayagu @ Thiyagu vs State Rep. By Inspector Of Police Ambatt on 18 January, 2017
Bench: Ranjan Gogoi, Ashok Bhushan
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.861 OF 2012
KILLER THIAYAGU @ THIYAGU ...APPELLANT
VERSUS
STATE REP. BY INSPECTOR
OF POLICE, AMBATTUR ESTATE
POLICE STATION ...RESPONDENT
O R D E R
1. We have heard the learned counsels for the parties and perused the relevant material.
2. The accused-appellant who has been convicted under Section 302 read with Section 34 of the Indian Penal Code has challenged his conviction and the sentence of life imprisonment imposed by the learned trial Court, which has been affirmed, in appeal, by the High Court.
3. PW-1 (Peter) is the only eye-witness to the occurrence. He is also the complainant in the case and the brother of the deceased. According to PW-1, on the day of the Signature Not Verified Digitally signed by NEETU KHAJURIA occurrence, while he was returning with his Date: 2017.01.19 19:08:28 IST Reason: brother on a motor-cycle, A-1 (appellant-Killer Thiayagu @ Thiyagu) stopped them. After they 2 had alighted from the vehicle, A-1 is alleged to have exhorted the other persons accompanying him to assault/attack the deceased. Thereafter, according to PW-1, A-1 caused a knife injury on the leg of the deceased, whereas the other accused-persons assaulted the deceased with knife and other lethal weapons on different parts of the body, including neck, resulting in his death. In the F.I.R. lodged, PW-1 did not specifically name any of the other persons who were accompanying A-1 and who had caused the other injuries to the deceased. In evidence, however, he mentioned the names of A-2 (Samiyar @ Ramu), A-3 (Moses) and A-4 (Muthumari) as the other persons involved in the crime. In cross-examination, he tried to fill up the aforesaid lacuna by stating that he was confused and under tension at the time of commission of offence by the accused.
4. The High Court, hearing the appeal of the convicted accused, took the view that the omission to mention the names of A-2, A-3 and A-4 in the F.I.R. and the subsequent mention of the said names in Court amounted to 3 exaggeration and embellishment of the case by PW-1. On the aforesaid sole basis, the conviction of A-2, A-3 and A-4 was set aside and they were acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code. However, A-1 was convicted for the same offence under Section 302 with the aid of Section 34 of the Indian Penal Code. It may be noted, at this stage, that the acquittal of the other accused i.e. A-2, A-3 and A-4 has attained finality in law.
5. The sole question that confronts the Court in the present case is whether in view of the acquittal of A-2, A-3 and A-4 by the High Court, the conviction of A-1 under Section 302 with the aid of Section 34 of the Indian Penal Code would be tenable in law ? If not, what would be the liability of A-1 on the basis of the injuries attributable by him in the light of the evidence of PW-1.
6. The principle of vicarious liability enshrined by Section 34 of the Penal Code would be attracted only if one or more than one accused person act conjointly in the commission 4 of offence with others. It in not necessary that all such persons should be named and identified before the liability under Section 34 of the Indian Penal Code can be invoked. So long as the evidence brought by the prosecution would disclose that one or more accused persons had acted in concert with other persons not named or identified, the liability under Section 34 of the Indian Penal Code would still be attracted. This is the principle discernible from the decision of this Court in Krishna Govind Patel vs. State of Maharashtra1, which has been coincidentally relied upon by the learned counsel for the State.
7. In the present case, it is not the prosecution case that apart from A-2, A-3 and A-4, there were other persons who had acted in concert in commission of the crime. The prosecution evidence also does not disclose that apart from A-2, A-3 and A-4 there were any other such persons. In absence of any evidence forthcoming on the aforesaid score and once A-2, A-3 and A-4 stands acquitted, the 1 1964 (1) SCR678 5 vicarious liability under Section 34 of the Indian Penal Code would not be attracted so as to hold the accused-appellant liable for the offence under Section 302 with the aid of Section 34 of the Indian Penal Code. The persons alleged to have participated in the crime with A-1 had been acquitted by the High Court. If that be so, the A-1 could not have been convicted of the offence of murder with the aid of Section 34 of the Indian Penal Code.
8. Notwithstanding the above, A-1 would still be liable for the offence of murder if the injury or injuries leading to death can be attributed to him. However in the present case from the evidence of PW-1, it transpires that A-1 was responsible for causing a knife injury on the leg of the deceased. The post-mortem report, though not very explicit, does record an injury on the leg. The accused-appellant would, therefore, be liable for the said injury which, according to us, would be punishable under Section 324 of the Indian Penal Code.
9. The accused is in custody now for about seven years. We, therefore, do not 6 consider it necessary to impose any specific sentence on the accused for the offence under Section 324 of the Indian Penal Code while holding him guilty of the said offence. Consequently, and in the light of the above discussion, we allow the appeal in part, set aside the conviction of the accused appellant under Section 302 read with Section 34 of the Indian Penal Code and the sentence of life imprisonment awarded and convert the same to one under Section 324 of the Indian Penal Code.
10. Appeal is allowed in the above terms. The accused-appellant be set out at liberty forthwith unless his custody is required in connection with any other case.
....................,J.
(RANJAN GOGOI) ....................,J.
(ASHOK BHUSHAN)
NEW DELHI
JANUARY 18, 2017
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ITEM NO.105 COURT NO.4 SECTION IIC
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 861/2012
KILLER THIAYAGU @ THIYAGU Appellant(s)
VERSUS
STATE REP. BY INSPECTOR OF POLICE AMBATT Respondent(s)
Date : 18/01/2017 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE ASHOK BHUSHAN For Appellant(s) Mr. Jayanth Muthraj, Adv.
Mr. S. Prabu Ramasubramanian, Adv. Mr. Sabarish Subramanian, Adv. Mr. Deepak Anand,Adv.
For Respondent(s) Mr. M. Yogesh Kanna, Adv.
Ms. Nithya, Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order.
Pending application(s), if any, stand disposed of.
(Neetu Khajuria) (Asha Soni)
Court Master Court Master
(Signed order is placed on the file.)