Madras High Court
Soundararajan vs State Through The Inspector Of Police on 12 August, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.08.2015
CORAM
THE HONOURABLE MRS.JUSTICE S.VIMALA
Crl.RC.(MD)Nos.98 of 2008
Crl.RC.(MD)No.313 of 2008
and
65 of 2010
1.Soundararajan
2.Palanivel
3.Ramesh
4.Anbalagan
5.Ayyakkannu
6.Rengaraj
7.Palanimanickam ... Petitioners in
Crl.RC(MD)No.98 of 2008
1.P.Rengaraj
2.P.Palani Manickam ... Petitioners in
Crl.RC(MD)No.313 of 2008
Ayyakkannu ... Petitioner in
Crl.RC(MD)No.65 of 2010
-vs-
State through the Inspector of Police,
Kandarvakottai Taluk,
Pudukottai District. ... Respondent in all the
Crl.RCs.
Criminal Revision Petitions filed under Section 397 r/w 401 of Cr.P.C.,
against the judgment in C.A.No.47 of 2006 dated 13.11.2007 on the file of
the Additional District and Sessions Judge, F.T.C., Pudukottai, confirming
the conviction and sentence passed by the learned Chief Judicial Magistrate,
Pudukottai in S.C.No.22 of 2004 dated 09.05.2006.
!For petitioners in
Crl.R.C.(MD)No.98/2008 : Mr.N.Anantha Padmanaban
For petitioners in : Mr.M.Karunanithi
Crl.R.C.(MD)No.313/2008
For petitioner in : Mr.C.Nagamuthu
Crl.R.C.(MD)No.65 of 2010
^For Respondent in : Mr.L.Murugan,
all the Crl.R.Cs. Government Advocate (Crl.Side)
:COMMON JUDGMENT
When the involvement of five or more persons in the occurrence itself is made doubtful, in a case involving constructive liability, whether it is safe to rely upon the improved version of witnesses that the number of accused participated were five or more.
2.Whether the acquittal of some of the accused persons, which would have the effect of reducing the number of accused persons less than five, would take out the case from the purview of Section 149 of the Indian Penal Code?
3.When the offence ultimately stood proved was not compoundable on the date of judgment and if it remained compoundable on the date of the offence, whether the compounding may be permitted (in respect of the offence under Section 324 IPC) after the coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) which was notified on 31.12.2009?
4.These are the issues raised in these revision petitions.
5.The revision petitioners are the accused persons 1 to 7 in Crime No.488 of 1999 of Kandarvakottai Police Station. The Trial Court, by the judgment dated 09.05.2006, found the accused persons guilty, in respect of various offences alleged against them and the sentence imposed upon each of them are given in the tabulation:
Accused Persons Section of the offence Punishment - Imprisonment A-1 Soundararajan 341, 148 and 307 IPC 1 month S.I.; 6 months R.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
A-2 Palanivel 341, 148 and 307 IPC 1 month S.I.; 6 months R.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
A-3 Ramesh 341, 148 and 307 r/w 149 IPC 1 month S.I.; 6 months R.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
A-4 Anbalagan 341, 148 and 307 IPC 1 month S.I.; 6 months R.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
A-5 Ayyakkannu 341, 147 and 307 r/w 149 IPC 1 month S.I.; 3 months S.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
A-6 Rengaraj 341, 342, 147 and 307 r/w 149 IPC 1 month S.I.; 3 months S.I.; 3 months S.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
A-7 Palanimanickam 341 IPC, 148 and 307 r/w 149 IPC 1 month S.I.; 6 months R.I.; 3 years R.I. with fine of Rs.500/- in default, 1 month S.I., respectively.
6.The conviction and sentence as ordered by the Trial Court were confirmed by the Additional Fast Track Court, Pudukottai, by judgment dated 13.11.2007.
7.Challenging the conviction and sentence, these revision petitions have been filed.
8.Before looking into the grounds of revision, it is necessary to state the brief facts of the case.
9.The first accused Soundararajan, the second accused Palanivel and the third accused Ramesh, are brothers belonging to the same family. The sixth and seventh accused are brothers belonging to the same family. The fifth accused Ayyakannu is the father of whom the fourth accused is his son. They all belong to Kattunaval Village, Kandarvakottai Taluk.
10.On 25.05.1999, when the defacto complainant Kaliyaperumal was going towards the hospital, through the Market Street, all the accused persons, on account of previous enmity, as members of unlawful assembly, armed with deadly weapons, with the common objective of causing murder of Kaliyaperumal, attacked him indiscriminately shouting that he should be eliminated. Various individual overt acts are alleged as against each of the accused persons.
11.The injured witness has been admitted in the hospital by P.W.5 ? Dr.Manimegalai who also issued Ex.P3-Wound Certificate. Subsequently, the injured has been treated at Thanjavur Medical College Hospital by P.W.4- Dr.Padmavathy. The doctor found that there was no fracture over the chest and left shoulder, but there was fracture in the right hand.
12.The Sub-Inspector of Police, received the intimation from the Government Hospital and after recording the statement of Kaliyaperumal (Ex.P1), registered the First Information Report (Ex.P7) in Crime No.488 of 1999 under Sections 147, 148, 341 and 307 of IPC. The case was investigated by the Inspector of Police (P.W.12), who laid the final report against the accused persons under Sections 147, 148, 341, 307 r/w 149 IPC.
13.The main contention of the learned counsel for the accused persons is that the Court below has rendered perverse finding in the sense that both the Courts omitted to take note of the important documents but had taken care to look into documents which are not vital. It is specifically pointed out that the earliest statement given by the victim before the doctor, viz. Ex.P3 is the first document, first in point of time, which should have been treated as the First information to commence the investigation and that vital document should not have been ignored, both by the Investigating Officer as well as by the Courts below.
14.The main contention revolving Ex.P3 is that, when the earliest statement of the victim before the doctor (at a time when the facts will remain unpolluted or at a time when there are no chances of exaggeration or embellishment) speaks only about the involvement of four persons and in the absence of any explanation as to how the names of 7 persons figured in the statement recorded under Section 161 Cr.P.C., the Trial Court ought not to have believed the involvement of 7 persons in the occurrence.
15.Perusal of Ex.P3 would go to show that the earliest version of the victim before the doctor is that he was attacked by two known persons, by name Soundararajan and Palanivel along with two unknown persons. It is not the case of the victim that he did not make such a statement before the doctor. Ex.P3 also reveals that he has been admitted in the hospital by the public. There are material difference with reference to 161 Statement and the statement before the doctor, with reference to the number of persons involved and as to who admitted the injured in the hospital. With reference to this statement, a specific question has been put to the Inspector of Police, who investigated the crime. The Inspector of Police would state that he did not raise any question with reference to the earliest statement of the victim before the doctor.
16.Therefore, the fundamental inquisitive question that should have arisen in the mind of the investigating officer is how there could be two contradictory statements by the victim, the earliest one alleging involvement of four persons and there is a subsequent statement alleging involvement of seven persons. When this question was not a subject matter of investigation, then the quality of investigation speaks for itself, regarding lack of ascertainment of facts and circumstances. The implication of this discrepancy is that if there is involvement of seven persons, then the charge under Sections 147, 148 and 149 IPC will come into play and not otherwise. This omission amounting to contradiction, assumes importance in view of the admission made by the investigating officer that P.W.1 stated before him that about two months prior to this occurrence, there was a quarrel between the victim and the first accused Soundararajan, in which he and one Chinnadurai caused injuries to him and in respect of the same, a case is pending against them. There is a specific suggestion that the earliest complaint has been suppressed and the First Information Report brought out by the investigating officer is not really carrying the first information, which could be first in point of time.
17.Under Ex.P3, it is stated that the victim was admitted in the hospital by the public, but P.W.1 would say that he was admitted in the hospital by his relative and that at the time of incident, his daughter Selvi was along with him. These statements does not appear to be true as Selvi has not been examined before the Court. The records available do not show that he was admitted in the hospital by his relative. This contradiction should have given sufficient caution to the investigating officer that the statement of eye witnesses regarding involvement of number of persons deserve careful scrutiny.
18.Whenever general allegations are made, or allegations made are very general, implicating / indicating involvement of too many persons, hesitation comes to the mind to convict all of them unless there are specific overt act against each one of them. Whether this approach is correct. Certainly no, in the case of members of the unlawful assembly having themselves involved in committing activities which are specified in Section 141 of the Indian Penal Code, in respect of which constructive liability is imposed under Section 149 of the Indian Penal Code.
19.What is an unlawful assembly, when an assembly is called unlawful, what are the common objectives in respect of which the assembly is called unlawful are detailed in Section 141 of the Indian Penal Code.
20.Section 141 of the IPC defining unlawful assembly is reproduced hereunder for easy reference:
141.Unlawful assembly.?An assembly of five or more persons is designated an ?unlawful assembly?, if the common object of the persons composing that assembly is ?
(First) ? To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or (Second) ? To resist the execution of any law, or of any legal process; or (Third) ? To commit any mischief or criminal trespass, or other offence; or (Fourth) ? By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) ? By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.?An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
21.Once the formation of unlawful assembly is established, then no overt act or active participation of any member of the unlawful assembly is required and mere meeting of five or more persons for carrying out the object involving reasonable apprehension of violence, even without doing the overt act, is sufficient to constitute the offence under Section 149 of the Indian Penal Code, which reads as under:
?149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.?If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.?
22.Section 149 of the Indian Penal Code, postulates an assembly of 5 or more persons, having a common object ? namely, one of those mentioned in Section 141 of the Indian Penal Code and then the doing of acts by any member of it in prosecution of that object. In other words, the basis of constructive guilt as contemplated under Section 149 is mere membership of an unlawful assembly. Every person who happens to be a member of that assembly with a common object of committing certain crime and when such a crime is committed by one or more of the members of that assembly, then the liability comes into play.
23.Section 149 IPC lays down the principle of constructive or joint criminal responsibility making every member of the unlawful assembly responsible for the act of the other if the act is achieved in the prosecution of the common object of that assembly or as the members of that assembly knew to be likely to be committed. In other words, it will depend upon the circumstances of each case to make one criminally responsible for the act of the other and it would not matter whether the offence is committed by any one of them, or some of them, or all of them, it is very rare, though by no means impossible, to prove by direct evidence, the prior agreement by an assembly of persons more than five in number regarding their achieving one of the unlawful objects specified under Section 141 of IPC.
24.It is not the case of the prosecution that the common object of the so-called unlawful assembly was with an intention to commit any of the acts as alleged in Clauses 1 to 5, except Clause 3 of Section 141 of IPC. But, involvement of five or more persons is not proved by the prosecution. Therefore, the offence under Sections 147, 148 and 149 IPC is not made out.
25.The next major charge against the accused persons is under Section 307 of IPC. To constitute an offence under Section 307 of IPC, two ingredients of offence must be present, (a)an intention of or knowledge relating to the commission of murder (b)the doing of an act towards it.
26.The essential ingredients required to be proved by the prosecution in respect of the offence under Section 307 IPC are:
(1)The death of the human being was attempted. (2)that, such death was attempted to be caused by or in consequence of the act of the accused.
(3)that, such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as
(a)the accused knew to be likely to cause death; or
(b)was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. (State of Maharashtra v.
Kashi Rao [2003 Cr.LJ 4464] (SC)).
27.According to the case projected by the defacto complainant Kaliyaperumal in the First Information Report, all the accused persons were armed with aruval and that with an intention of causing death, the first accused Soundararajan inflicted cut injury over the left shoulder, saying that the life of Kaliyaperumal should be eliminated. Similar is the allegation made as against the second accused Palanivel. It is alleged that when Kaliyaperumal tried to ward off the attempt, he sustained injury in the right hand. There is a parrot-like version in respect of each of the seven accused alleging that each of them were armed with aruval and that each of them told that life of Kaliyaperumal should be done away. If there had been an intention to cause death and if really all the seven accused persons were armed with deadly weapons, and if the defacto complainant was available along with his daughter (with nobody else to resist the attack), it would not have been so difficult for all the seven of them together to cause the death of Kaliyaperumal.
28.The injury over the right hand is said to have caused fracture. The doctor, P.W.4-Padmavathy who examined the victim injured would state that the X-rays got damaged and therefore, it was not produced. Being a doctor, it must be within her knowledge that the case being a medico-legal case, x-ray should be required for production before the Court. When the official witness says that the x-rays could not be preserved, then the opinion that there was a fracture and that it was a grievous injury, cannot be believed. When the allegations made in the First Information Report is contradictory to the earliest version made before the doctor, the Court has to be vigilant while analysing the evidence of P.W.1 and only when there is a corroboration, the Court can accept the evidence of P.W.1. When the evidence of P.W.1 reveals that he has sustained injury as supported by the certificate of the doctor, the finding of the Trial Court that the accused 1 and 2 caused injuries to P.W.1 must be accepted.
29.So far as the third accused is concerned, there is a finding that the offence under Section 324 IPC is not made out as against the third accused. The participation of the rest of the accused is highly doubtful, because of the visible contradiction between Ex.P3 ? Accident Register copy and Ex.P1-Complaint to the Police.
30.Even though it is proved that the first and second accused alone caused injuries to P.W.1, in the absence of production of x-ray / x-ray report, the case of the prosecution has been proved only to the extent of A-1 and A-2 causing injuries to P.Ws.1 and 2 using dangerous weapons. Therefore, A-1 and A-2 can be held guilty only in respect of offence under Section 324 IPC. The findings contra, are liable to be set aside, and the same are set aside accordingly.
31.When the learned counsel for the accused were heard on a question of sentence, the learned counsel for the accused would submit that P.W.1, the victim died long back and the time as a healer, has sorted out the difference between the family of the accused and the family of the victim and as both of them are in cordial relationship, the sentence should be modified in terms of compensation and the sentence of imprisonment deserves to be set aside, taking into account the age of the accused 1 and 2.
32.An affidavit of the legal heirs of the defacto complainant has been produced wherein it is stated that they must be permitted to compound the offence.
33.The question is whether the said petition for permission to compound the offence under Section 324 IPC can be allowed after the coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) from 31.12.2009.
34.The next question is whether the legal representatives of the injured can be permitted to compound the offence when the injured is dead?
35.Section 320 of Cr.P.C., provides for compounding of offences.
36.The offence under Section 324 IPC was compoundable with permission of the court till the coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005). Act 25 of 2005 brought in amendment to the Table appended to sub-section (2) of Section 320 of Cr.P.C so as to make the offence under Section 324 IPC non-compoundable. Though Act 25 of 2005 was published on 23.6.2006 it was to take its effect only from the date of its notification. In this context, the decision of the Hon'ble Apex Court in Mathura Singh and Others v. State of U.P. reported in 2009 (2) KHC 759 assumes relevance. It was decided on 27.4.2009. Taking note of the fact that Act 25 of 2005 was not brought into force by notification, offence under Section 324 IPC was held still compoundable, with the permission of the Court. Later, it was notified on 31.12.2009. Thus, obviously, the offence under Section 324 IPC became non-compoundable on 31.12.2009.
37.The learned counsel for the revision petitioners, relying upon the decision of the Hon'ble Apex Court in Hirabhai Jhaverbhai v. State of Gujarat and Others reported in (2010) 6 SCC 688 to canvass the position that the said offence being one committed on 25.05.1999, when the offence under Section 324 IPC was compoundable, can still be compounded with the permission of the Court.
38.In fact, the Code of Criminal Procedure (Amendment) Act, 2005, (Act 25 of 2005) itself makes it clear that the amendments made thereunder would take effect only from the date of notification.
39.It would be appropriate to quote the observation made in paragraph-5 of Hirabhai Jhaverbhai v. State of Gujarat and Others reported in (2010) 6 SCC 688, which reads as under:
"5. This Court finds that after coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 from 23.6.2006 the offence under Section 324 IPC is made non-compoundable. However, in this case the offence under Section 324 IPC was committed on 23.7.1986 on which date it was compoundable with the permission of the court. As the Code of Criminal Procedure (Amendment) Act, 2005 is not applicable to the facts of the case, the offence under Section 324 IPC would be compoundable with the permission of the court."
40.In this case also, as the date on which the occurrence took place, ie., on 25.05.1999, the offence under Section 324 of IPC remained compoundable, the compromise petition has to be accepted.
41.Under Section 320(4)(b) of Cr.PC, when the person who would otherwise be competent to compound an offence under this Section is dead, the legal representative, as defined in the Code of Criminal Procedure, 1908, of such person may, with the consent of the Court, compound such offence. In this case also, even though the injured is dead, the legal representatives have filed this petition and it is maintainable.
42.The learned counsel for the accused would point out that already the first accused has suffered 7 months imprisonment and the second accused was in custody for one month. It is also represented that the accused persons are ready to pay a sum of Rs.35,000/- as compensation to the legal representatives of the deceased / injured.
42.1 A compromise petition has been filed by the legal representatives of the victims and the accused. The accused have stated before this Court that they have paid a sum of Rs.35,000/- as compensation to be distributed among the members of the victim's family. For the reasons already discussed, the petition filed under Section 320 of Cr.P.C., with regard to compromise, is hereby allowed, as per the terms mentioned therein, and the accused persons are acquitted of the charge under Section 324 IPC.
42.2 As the compromise has now been accepted, it would have the effect of acquittal of the accused persons from the charge under Section 324 IPC.
43.In the result, the Criminal Revision Petitions stand allowed, and the accused 1, 2 and 4 are acquitted of the levelled charges under Sections 341, 148 and 307 IPC; the accused 3 and 7 are acquitted of the levelled charges under Sections 341, 148 and 307 r/w 149 IPC, the fifth accused is acquitted of the levelled charges under Sections 341, 147 and 307 r/w 149 IPC and the sixth accused is acquitted of the levelled charges under Sections 341, 342, 147 and 307 r/w 149 IPC. Bail bonds if any, executed by the accused persons, stands discharged.
To
1.The Inspector of Police, Kandarvakottai Taluk, Pudukottai District.
2.The Additional District and Sessions Judge, F.T.C., Pudukottai.
3.The Chief Judicial Magistrate, Pudukottai.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..