December 19, 2017
A Bench of Supreme Court Judges Justice Ranjan Gogoi and Justice R. Bhanumati disposed of the appeal filed convicts in a criminal case in which they are convicted under section 149 IPC, section 341, 324, 148, 147, 323 read with section 149 IPC and 326 IPC and also the sentence of imprisonment imposed upon them.
Brief facts of the case of prosecution is that on 12.01.1994, Anthony Mududhagam,
deceased Luis John Kennedy and Raja came to attend funeral of one Jesu. While
they were standing near Sahayam's house at about 3.05 p.m., Jesu Adimai (since
dead), Selvaraj and Sahayam armed with country made bombs in their hands, Selvam
and Antony Innasi armed with sickles, Charles, Jerone, Edwinson, Raj and
Elizabethan with sticks and Joseph came there and confronted the deceased
Kennedy and Suresh [who just came there to see his father]. Joseph instigated
all the accused to attack on them. Selvam attacked with sickle on the left
shoulder. Jesu Adimai threw one country bomb which hit the forehead of the
deceased and the deceased fell down. Selvaraj threw the bomb which hit the right
leg of Raja. Sahayam also threw a bomb which has fallen on the ground. Antony
Innasi attacked PW2 on his left shoulder. Accused Nos.6 to 10 attacked Raja and
indiscriminately causing injuries to them. On seeing the by-standers coming towards the spot, the accused ran away from the scene. Thereafter Johnson hired a tempo and took the injured to Nagercoil Kottar Government Hospital. On the way to hospital, Kennedy succumbed to injuries.
Based on the statement of Raja, FIR was registered in Crime No.23/94 under Sections 147, 148, 326, 307 and 302 IPC as well as under the Indian Explosives Act. Krishnan Nair, Inspector in Charge had taken up the initial investigation and prepared rough sketch of the place of occurrence and seized articles viz., blood stained earth and sample earth from the scene of crime and conducted the inquest. Dr. Kutralingam conducted autopsy on the body of the deceased and noted "lacerated injury with burnt out black skin margins over the head both ocular areas; both eyes found to be missing; Face and forehead was seen seriously disfigured." Dr. Kutralingam opined that "the death was due to head injuries and the same could have been caused by explosion of bomb" and issued post-mortem certificate. On 15.01.1994, Ganesan-Inspector of Police, took up further investigation and arrested the accused Nos. 2 to 10 on 25.01.1994 at about 04:45 a.m. Confession statement recorded from Selvam which led to recovery of sickle with wooden handle and sickle with iron handle. On completion of investigation and submission of final report on 08.11.1995, all the accused were remanded to judicial custody.
The accused were questioned under Section 313 Cr. P.C. about the incriminating evidence and circumstances and the accused denied all of them. Upon consideration of evidence adduced by the prosecution, the trial court held that the prosecution has proved the existence of common object of the unlawful assembly and that the accused acted in furtherance of the common object and convicted all the eleven accused under Section 302 IPC with the aid of constructive liability under Section 149 IPC and sentenced all of them to undergo life imprisonment. The accused were also convicted for various other offences and were sentenced to
undergo various imprisonment.
The accused preferred appeal before the High
Court which came to be dismissed by the High Court by the impugned judgment.
The court said that:
"What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established"
"Conviction of accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC suffers from serious infirmity and the same cannot be sustained. Since the prosecution has not succeeded in establishing and proving that there was an unlawful assembly with a common object to commit the offence, conviction of the accused Nos. 3 to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section 147 IPC) are set aside"
"Considering the individual acts of the appellants, Selvam (A4) and Antony Innasi (A5) attacked PW1 and PW2 on their left shoulders respectively with sickles, conviction of Antony Innasi (A5) is modified as conviction under Section 324 IPC and the sentence of rigorous imprisonment of one year is maintained. Conviction of Selvam (A4) under Section 324 is affirmed and the sentence of imprisonment of one year imposed upon him is affirmed. Considering the acts of accused Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of accused Nos.6 to 10 under Section 323 read with Section 149 is modified as conviction under Section 323 IPC maintaining their sentence of imprisonment of six months."
"Conviction of Sahayam (A3) and Joseph (A11) under Section 302 IPC read with Section 149 IPC is modified as Section 302 IPC read with Section 34 IPC and under Section 302 IPC read with Section 109 IPC respectively and the sentence of life imprisonment awarded to each of them is confirmed. Criminal Appeal No.413 of 2012 preferred by Joseph (A11) is dismissed. Sahayam (A3) and Joseph (A11) are directed to surrender to serve their remaining sentence.
"Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi (A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is set aside and they are acquitted of the same. So far as conviction of Accused Nos. 4 to 10 for other offences and the sentence imposed upon each of them, the same is modified as indicated above and accordingly, appeals are partly allowed. Accused Nos. 4 to 10 have already undergone the sentence for more than six years, they need not surrender. Their bail bonds stand discharged."
Read the Judgment of Supreme Court dated 14.12.2017