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.
2. The appellants herein, Munivel (Original Accused 5), Kalith (Original Accused 4), Selvam @ Silvakumar (Original Accused 1), Sasi @ Sasikumar (Original Accused 2) and Madhu @ Madhusudanan (Original Accused 3) were convicted under Section 302 read with Section 149 of the Penal Code (“IPC” for short) and sentenced to undergo rigorous imprisonment for life. Accused 2 was also convicted under Section 307 IPC and sentenced to undergo ten years' rigorous imprisonment. Accused 3 was convicted for an offence under Section 302 IPC and sentenced to undergo life imprisonment. Accused 4 was also convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for seven years. Accused 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 aforementioned 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 for the offence under Section 302 read with Section 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 simpliciter. A-1 has been convicted for the offence under Section 302 read with Section 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 Section 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 Section 34 IPC, instead of Section 302 read with Section 149 IPC and A-2's conviction for the offence under Section 307 IPC is confirmed.”
3. The High Court confirmed the judgment of conviction and sentence imposed by the trial court in respect of other offences on Accused 3, 4 and 5 under Sections 302, 326, 324 and 302 read with Section 149 IPC respectively.
4. Accused 1, 2 and 3 preferred the special leave petition before this Court, but the same was dismissed.
5. 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.
6. Before we advert to the merit of the matters, we may briefly notice the following facts:
PW 1 Raja and PW 2 Kannan are the sons of deceased Babu Naidu. PW 3 Venkatesan is his brother. Tmt. Balamani, who examined herself as PW 4, is the wife of the deceased. PW 5 Leela and PW 6 Gandhimathi are the daughters of the deceased. PW 7 Srinivasan and PW 8 Panneer Selvam were the friends of the deceased. PW 10 Tmt. Pushpa is the wife of the aforementioned PW 3 Venkatesan. Accused 1 and 2 were brothers, whereas Accused 3 and 5 are their associates. The mother of Accused 1 and 2 Jayalakshmi, was distantly related to the deceased. The family of both the parties were carrying on business of chit transactions. PW 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 PW 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.
7. It is further alleged that a proposal made for marriage of Accused 1 Selvam with a girl failed. The relatives of the said girl came to the village for inquiring about the suitability of Accused 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, PW 1 was in his shop. He was joined by PW 2 Kannan. Both of them were proceeding to their houses at about 12.15 in the midnight. When they reached near their houses, the accused persons accosted them with deadly weapons. Selvam allegedly shouted at PW 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 2 Sasi stabbed PW 2 on his abdomen as a result whereof he cried out. His intestines came out. Upon seeing the said ghastly sight, PW 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 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 1 prevented him from doing so and hit him with a knife on his head. On hearing the cries, PW 3 Venkatesan, the deceased's brother, came out of his house along with his wife, PW 10. They saw the incident. When they came to the scene of occurrence, Accused 4 Kalith attacked him with a knife on his hand, as a result whereof PW 3 suffered an injury on the back side of his right hand, as also in the fingers. Seeing the said assault, PW 10 shouted, whereupon Accused 5 Munivel cut the ring fingers of both her left and right hands. PW 7 Srinivasan and PW 8 Panneer 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 Penal Code.
8. On the basis of the said FIR, PW 19 Venkateswaran, the Inspector of Police, took up investigation and visited the scene of occurrence. He, thereafter, received a message as regards 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 PW 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 Accused 3 and 4, two knives marked as MOs 4 and 7, as well as a shirt MO 27 were recovered from their possession. Similarly, on alleged confession made by Accused 2 and 4, other weapons and knives marked as MOs 3, 5 and 6 were recovered. All such recoveries were made on 18-3-1994.
9. The part played by each of the appellants herein and the extent thereof were categorically stated by all the eyewitnesses “injured persons” viz. PWs 2, 3, 4, 5, 6, 7, 8 and 10.
10. As the statements of all the material witnesses are identical and corroborative of each other, we would notice hereinbelow the statements of PW 1 only, which read:
“… On 16-3-1994, 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 knives. 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 intestines have come out. I screamed out and immediately ran upstairs. I told my mother that, my brother was stabbed by them. At once my father, came down from upstairs, 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 back side 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 Kalita 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. Srinivasan, Selwaraj, Panneer Selvam, Babu and Mohan chased the accused who were running away. The accused got into an auto at Arunachalam road and fled.”
11. It is not disputed that PW 3 and PW 10 are independent witnesses. It is also not disputed that they suffered some injuries on their hands.
12. As regards the nature of injuries suffered by PW 10 and her husband, PW 3 was not cross-examined.
13. The injuries on the person of PW 3 were medically examined by PW 11 Dr. S. Loganathan. The said witness stated:
“… On 17-3-1994 at 1 o'clock in the night, Venkatesan, around 45 years, was brought by PC 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 measured 2 × 1 × 2″ deep. I sent him to the doctor for emergency treatment. The aforesaid injury could have been came (sic brought about) at the time and manner said by him. Ext. 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 fingers 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. Ext. P-5 is the copy of the accident register given by me.”
14. PW 10, Pushpa, in her evidence stated:
“… 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. A-4 attacked my husband with a knife at his right hand and back. On seeing it, I screamed. At once A-5 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 Royapettah Hospital.”
15. 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 PW 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, PW 10 suffered an abrasion. Criticism was also made to the effect that although the injured was sent to the duty doctor, she had not been examined.
16. We may, at this juncture, notice the following findings arrived at by the learned Sessions Judge:
“… As Kalith had cut-off the right hand ring finger of PW 3 Venkatesan and hacked him on his back and wounded him; I find him guilty of offence under Section 326 IPC.
The accused Munivel has attacked PW 10 Pushpa with knife and inflicted abrasions and cut away her ring fingers in both her hands. In the related copy of the accident register Ext. 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 is 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 under Section 324 IPC.”
17. It was submitted that in view of the aforementioned finding, it must be held that no injury was caused to PW 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.
18. 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 Accused 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 Sections 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 PW 3 was said to have been severed, the same was not recovered by the investigating officer, PW 19.
19. Mr Subramonium Prasad, learned counsel appearing on behalf of the State, on the other hand, supported the findings of the courts below.
20. The incident in question is not denied or disputed. Death of Babu Naidu is also not disputed. The fact that PWs 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 the 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 1, 2 and 3 has been dismissed.
21. 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 1, 2 and 3 to commit the alleged offences or not.
22. All the accused persons came together. All of them were armed with knives. They accosted PWs 1 and 2. They caused the death of the deceased roundabout midnight on the street. The first incident took place near the house of the deceased. The stab injury was given to PW 2 Kannan as a result whereof his intestines came out. When PW 1, on seeing this, went inside the house and narrated the same to his parents and others, the deceased and his wife PW 4 came out followed by their daughters PW 5 and PW 6. The deceased was not only given a fatal blow by Accused 2, when he intended to save himself from further attack and was running towards the stairs, he was prevented by Accused 1 from doing so. He was assaulted by him. PW 3 and PW 10 came to the scene of occurrence on hearing their cries. PW 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.
23. It is also natural that seeing her husband being assaulted by a knife, PW 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. PW 11 Dr. S. Loganathan in his deposition referred to the accident register. So far as an injury received by PW 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 PW 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 were correct.
24. 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.
25. Two facts in this regard are of some significance: firstly, as regards the nature of injuries suffered by PW 10, she had not been cross-examined; secondly, PW 11 referred to the accident registers wherein, as regards the injuries suffered by PW 3 and PW 10, it was recorded:
“PW 3 (Venkatesan):
Nature of injury and treatment (state: simple, grievous or opinion reserved)
Alleged assault as per AR No. 029471
O/E
Patient conscious (NC) Right middle finger cut-off. Cut injury over back of chest about 2″ × 1½″. Treatment given referred to DAOS.
PW 10 (Pushpa):
Nature of injury and treatment (state: simple, grievous or opinion reserved)
Alleged assault by known person at about 12.15 a.m (NC) residing at the above address by (NC) knife.
O/E
Patient conscious (NC) cut injury left ring finger and right ring finger. Treatment given referred to DAOS.”
26. It was, therefore, clearly established that the said witnesses suffered injuries.
27. Doctor, PW 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.
28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidences of all the eyewitnesses.
29. For the purpose of invoking Section 149 of the 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.
30. The appellants, as stated, came with the other accused persons with deadly weapons at midnight. The active role played by both the appellants herein, clearly stands proved by the evidence of the prosecution witnesses.
31. We have noticed hereinbefore that not only at the dead of night PW 1 and other witnesses were attacked, Accused 1 and 2 also went inside the house of the deceased and prevented the deceased from escaping from further assault.
32. 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. PW 3 and PW 10, it is true, were related to the deceased, but, they were also related to Accused 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 Accused 1 and 2 that PW 3 and PW 10 were inimical to them. There is nothing on record to show that they bore any grudge towards them. It is in the aforementioned fact situation, the role played by the appellants herein must be considered.
33. They did not make any attempt to stop Appellants 1 and 2 from continuing assault on the family members of PW 2. They had not only watched as to how PW 2 Kannan, son of the deceased, the deceased himself, PW 4 wife of the deceased and the two daughters i.e PW 5 Leela and PW 6 Gandhimathi, suffered injuries after injuries at the hands of Accused 1 and 3, but even when PW 3 Venkatesan came to intervene, a grievous injury was caused by appellant Kalith and when thereafter PW 10, a lady intervened, she also had sustained injuries on her hands. It is immaterial, in the aforementioned fact situation obtaining herein that PW 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.
34. 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 v. State of U.P (2005) 13 SCC 323, (2005) 9 Scale 76 this Court opined:
“68. For the purpose of attracting Section 149 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 shared by them, it would serve the purpose.”
35. Yet again in Bishna v. State of W.B (2005) 12 SCC 657, (2005) 9 Scale 204 the aforementioned principle has been reiterated.
36. Section 149 of the 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 regards 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 v. State of Maharashtra (2003) 2 SCC 257.)
37. 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 v. Nathu (2003) 5 SCC 537.)
38. For the foregoing reasons, in our view, there is no merit in these appeals. The appeals are dismissed accordingly.