Madras High Court
Syed @ Syed Abdhahir vs State Rep. By on 30 October, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan
2024:MHC:3684
Crl.A(MD) No.301 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.09.2024
Pronounced on : 30.10.2024
Coram:
THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN
AND
THE HONOURABLE MS. JUSTICE R. POORNIMA
Crl.A.(MD)No.301 of 2020
1.Syed @ Syed Abdhahir
2.Refeek @ Kalandhar Rafeek .. Appellants/ Accused Nos.2&3
Vs.
State rep. by
The Inspector of Police,
S.P.Pattinam Police Station,
Ramanthapuram District
Crime No.70/2011 .. Respondent/Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 (2) of the Criminal
Procedure Code, to set aside the conviction and sentence dated
30.07.2020 passed in S.C.No.49 of 2012 on the file of the learned
Additional District and Sessions Judge, Ramanathapuram.
1/40
https://www.mhc.tn.gov.in/judis
Crl.A(MD) No.301 of 2020
For Appellants : Mr.A.Ravichandra Ramavanni
For Respondent : Mr.S.Ravi,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court delivered by R.POORNIMA,J.)
This Criminal Appeal is filed against the conviction and sentence
passed against the accused Nos. 2 and 3 / appellants in the judgment
dated 30.07.2020 passed by the Additional District and Sessions Judge,
Ramanathapuram, in S.C.No.49 of 2012 by convicting and sentencing
the appellants for the offences punishable under Sections 302 to undergo
imprisonment for life and to pay a sum of Rs.5000/- and in default of
payment of fine , further undergo punishment for 2 years.
2. The appellants herein are the accused 2 and 3 in the trial Court
in S.C.No.49 of 2012. They have preferred this Criminal Appeal, against
the judgment of conviction, under Section 374 (2) Cr.P.C, 1973.
https://www.mhc.tn.gov.in/judis
3. The appellants / accused Nos. 2 and 3 were convicted under
Section 302 I.P.C and sentenced to undergo for life imprisonment and to
pay a fine of Rs.5,000/-, in default of payment, to undergo 2 years simple
imprisonment. The appellants paid the fine amount. Aggrieved by the
above conviction order and sentence, this Criminal Appeal has been filed
by the appellants A2 and A3.
4. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
5. As per the case of the prosecution, all the accused are relatives.
They had previous enmity, with the deceased due to a civil dispute. On
04.09.2011, the deceased – Mohammed Yusuf and his friend Hammed
Mahaboob, had gone to Ramanathapuram to deposit money to contest the
elections. After knowing the same, the Accused Nos. 1 to 6 unlawfully
assembled with deadly weapons and were waiting for the deceased near
S.P.Pattinam bus stand near Siddika Beevi House. On the same day, at
about 09.30 pm, the deceased – Mohammed Yusuf and his friend
https://www.mhc.tn.gov.in/judis
Hammed Mahaboob came in a bus and got down in S.P.Patttinam Bus
stand, took their two wheeler. They started moving towards their house.
A2 was driving the two wheeler belonging to the third accused. Both A3
and A6 were also sitting in the vehicle and came in the opposite direction
to the bike of deceased and dashed against the vehicle, in which, the
deceased Mohammed Yusuf and his friend Hammed Mahaboob were
traveling.
6. P.W.1 who was waiting near the road side for his son, witnessed
the occurrence. Mohammed Yusuf fell down from the vehicle. He was
surrounded by A1 to A6 and A6 shouted to A1 that he should not leave
Mohammed Yusuf alive. A1 took a knife which was hidden in his hip
and stabbed the victim on his chest. The said Mohammed Yusuf, in
order to save his live, rushed into house of the witness - Siddhik Beevi.
A1 to A3 chased him and went inside the said house and locked the door
from inside and indiscriminately inflicted injuries all over the body viz
below left chest, near the left nipple, above the ribs, near the cheek, near
the right ear etc.
https://www.mhc.tn.gov.in/judis
7. P.W.1 raised a hue and cry and tried to enter into the house but
was prevented by A6 to A8 from entering into the house. Thereafter, all
the accused fled away from the place of occurrence. P.W.1 rushed to the
spot and saw his son in a pool of blood. He lodged the complaint. The
F.I.R was registered in Cr.No.70/2011 under section 147, 148, 302 IPC
and the same was sent to the Judicial Magistrate, Thiruvadanai.
8. The Inspector of Police, Ramanadapuram, P.W.23 took the case
for investigation, visited the place of occurred on 05.9.2021 at 12.30 p.m.
It was noticed that the relatives had staged dharna with the dead body.
He seized the dead body and sent it to the Thiruvadanai Government
Hospital for Postmortem. He prepared observation mahazar Ex.P.2 in the
presence of witnesses Sagubar Sadiq, Syed Abdhahir and also drew
rough sketch under Ex.P19. He seized the two wheeler TN-09-AR-0290
used by the accused He seized the blood stained concrete and ordinary
concrete from the place of occurrence under recovery mahazar in the
presence of witnesses. He had examined witnessesn Shek Mahaboob,
https://www.mhc.tn.gov.in/judis
Hameed Mahaboob, Abdul Hameed, Mohammed Nissak, Naina
Mohammed, Sidddka Beevi, Syed Meerasa, Farook Ali, Sualaika Beevi
and Jannathammal recorded their statement. He conducted inquest on the
deadbody between 07.00 and 09.00 am in the presence of Panchayathars.
In order to conduct post mortem a request was given through
Gopalakrishnan, Head Constable. After completion of post mortem, the
said Gopalakrishnan handed over a dhothi with black, white, red border,
white shirt, vest and red colour brief recovered from the dead body and
the same was recorded in Form – 91.
9. He then arrested A3-Kalandar Rafiq @ Rafiq, A6 Kalanthar
Ali at 6.00 am near S.P.Pattinam in the presence of witnesses
Rajapandian, Subramaniam. A3 voluntarily gave a confession statement
and the same was recorded in the presence of the above witnesses and a
knife was recovered under recovery mahazer. He arrested Mohammed
Abdulla - A4 at 9.30 hours near Enathi Pambaru, Karuvaikadu and
obtained confession statement in the presence of Rajapandi and
Subramani and recovered the wooden log under recovery mahazer.
https://www.mhc.tn.gov.in/judis
10. Thereafter, he examined Kaja Mohideen, Ahamedsha,
Mohammed Abubakkar, Sulaikaammal, Arockiyasamy and H.C.1614 -
Gopalakrishnan and recorded their statements.
11. On 08.09.2011, A5 surrendered before the Devakottai Judicial
Magistrate and A4-Sahubar Ali surrendered before the Aranthangi
Judicial Magistrate Court on 09.11.2011.
12. On 14.09.2012, a request was made to handover the accused
for custodial interrogation and the same was granted. He recorded the
confession statement of A4 in the presence of Rajapandian and
Subramanian and recovered a weapon, wooden log.
13. On 15.09.2011, A2 handed over a knife from the seashore
near S.P.Pattinam and the same was seized under recovery mahazer. A5
handed over a wooden log and the same was also recovered under
Mahazer. He examined the witness Muruganantham, Grade I Constable.
https://www.mhc.tn.gov.in/judis
14. The investigation was further continued by P.W.25,
Thiru.Dhanapalan, He examined all the witnesses but had not recorded
their statement as the witnesses repeated the same statements which were
stated to P.W.23. He recorded the confession statement of A1, who had
surrendered before the Judicial Magistrate No.II, Trichy and recovered
knife from the accused near a bridge at Enathi Pambaru in the presence
of the Village Administrative Officer and Village Assistant. He sent all
the material objects through Form – 95 to the Judicial Magistrate. He
recorded the statement of Dr.Senbagadevi, who had conducted the post
mortem, the Head Clerk of Thiruvadanai, who had sent the materials to
Forensic Department and Vairmuthu, the Scientific Officer. Thereafter,
he filed final report against A1 to A3 under Sections 302 I.P.C, against
A4 to A6 under Section 302 r/w. Section 34 and 506(ii) I.P.C, against A1
under Section 302 r/w. Section 109 I.P.C., before the Judicial Magistrate,
Thiruvadanai.
https://www.mhc.tn.gov.in/judis
15. After perusing the charge sheet, the case was taken cognizance
by the Judicial Magistrate. He issued summons to the accused. The
accused were directed to appear before the Court and free copies were
served on them under Section 207 Cr.P.C. After perusing the records
and after hearing the parties, since the case was exclusively triable by the
Sessions Court, the Judicial Magistrate committed the case under Section
209 Cr.P.C to the Principal District and Sessions Court,
Ramanathapuram.
16. The case was taken up by the District and Sessions Judge,
Ramanathapuram and made over to the Sessions Judge,
Ramanathapuram. The said court took the case on file as S.C.No.49 of
2012. During the trial proceedings, A1 died and the charges against him
abated.
17. The trial Judge framed charges against A2 to A4 under
Sections 148, 302 r/w. Section 149 and 506 (ii) r/w. 149 I.P.C., and
against A5 and A6 under Sections 147, 302 r/w. 149, 506 (ii) r/w. 149
https://www.mhc.tn.gov.in/judis
I.P.C. All the accused denied the charges and claimed to be tried. The
trial then commenced.
18. On the side of the prosecution, P.W.1 to P.W.25 were examined
and Ex.P1 to Ex.P42 were marked and Material Objects M.O.1 to M.O.
12 were produced.
19. After full trial, the trial Court on the basis of records and
evidence, pronounced judgment on 30.07.2020 and convicted A2 and A3
under Section 302 I.P.C and sentenced them to undergo life
imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo two
years simple imprisonment each. A2 to A4 were acquitted of charges
under Sections 148 and 506 (ii) r/w. 149 I.P.C., and A5 and A6 were
acquitted of charges under Sections 147, 506 (ii) r/w. 149 I.P.C., and A4
to 6 were acquitted of charges under Section 302 r/w. 149 and 506(ii)
r/w. 149 I.P.C., under Section 235(1) Cr.P.C.
https://www.mhc.tn.gov.in/judis
20. The learned Additional Public Prosecutor appearing for the
State argued that on the side of prosecution P.W.1 to 15 were examined,
exhibits P1 to P.14 marked and M.O-1 to 12 were produced. P.W.1, who
is an eye witness clearly stated about the occurrence without any
contradictions. His evidence is clear and cogent and without any
suspicion. The motive for the crime was that both the accused and the
deceased had previous enmity due to a civil dispute. This was spoken by
P.W.1, P.W.8, P.W.14. The certified copy of the civil case judgment was
produced under Ex.P42. It was argued that the prosecution had
categorically proved that both the accused and deceased had previous
enmity. The occurrence happened in the house of P.W.4. The adjoining
house owner P.W.5 and P.W.6 and the person, who had accompanied the
deceased P.W.3 failed to support the prosecution due to fear. However,
P.W.1 who came to Ramnad to celebrate Ramzan had witnessed the
occurrence. He clearly stated that since his son had not returned from
Ramnad, he came to the place of occurrence and witnessed the
occurrence. He also clearly deposed before the trial Court. His evidence
was supported by P.W.2. He further argued that F.I.R was registered
https://www.mhc.tn.gov.in/judis
without any delay and reached the Court the next day, since the
occurrence had taken place in the night hours, and the same was not fatal
to the prosecution case.
21. The appellants' counsel raised the following grounds:
(a) That P.W.1 is the sole witness for the occurrence as per pages
43 and 44 of the judgment
(b) That P.W.1 is a chance witnesses as per the pages No. 47 of the
judgment.
(c) That P.W.1 is the father of the deceased. He has also admitted
that he had civil dispute with A1, who is no more.
(d) That the lower Court had not examined with care and caution,
the evidence of P.W.1, who is an uncorroborated, chance witness,
interested and also inimical towards the appellants.
(e) That the lower Court had failed to note that though the genesis
of the occurrence is dashing of one vehicle driven by deceased, by
another vehicle driven by some of the accused, the vehicle that has been
seized is alleged to have been driven by the accused person and the
https://www.mhc.tn.gov.in/judis
particulars of ownership have not been obtained from the office of the
R.T.O. Even the one vehicle seized had not been sent to the Motor
Vehicle Inspector for inspection and Report.
(f) That the lower Court had failed to appreciate the defence
argument that since there was no blood in the first place of occurrence
and no trace of blood on the way of the injured to the second place of
occurrence, and the inference is that no occurrence has taken place in the
first place.
(g) That there was a delay of about 12 hours from the time of
occurrence to the time, the F.I.R reached the Court, which may take only
a travel time of 45 minutes times. The defence suggestion was that since
P.W.1 was doing business in Chennai, he came to the place of occurrence
on the next day only and hence there was delay. There was also no
explanation for the delay.
(h) That the lower Court had failed to notice that there were
serious omissions in the F.I.R and statement under Section 161 (3)
Cr.P.C to the police about the presence of P.W.1 in the village on the day
of occurrence and his presence at the place of occurrence at the relevant
https://www.mhc.tn.gov.in/judis
time. This contradiction has been proved by the defence. This
inconsistent version in the evidence of P.W.1 was not looked into by the
lower court.
(i) That none of the other witnesses including wife of P.W.1, wife of
deceased or other relatives of P.W.1 have deposed about the presence of
P.W.1 in the place of occurrence.
(j) That the prosecution has suppressed the Accident Register of
the Government Hospital where the deceased was said to be taken earlier.
The learned counsel therefore, prayed that the judgement of trial
Court must be set aside.
22. The records were carefully scrutinized.
23. In the final report, the investigating officer relied upon 25
witnesses. During trial, 18 witnesses alone were examined. In the list of
witnesses L.W.1 to L.W.6 were cited as eye witness. However, except for
L.W.1, who had been examined as P.W.1, the father of the deceased,
none of the other witnesses supported the prosecution case.
https://www.mhc.tn.gov.in/judis
24. P.W.1 in his evidence stated that he came to S.P.Pattinam on
04.09.2011. His son went to Ramnad to deposit money for contesting the
Panchayat Election. While returning he came in a bus and got down in
S.P.Pattinam bus stand and took his vehicle bearing Registration No.
3614 and was moving towards his house. At that time, P.W.1 was
standing in the bus stand.
25. He came over there to see why his son had not returned to
home till 09.00 pm. While he was standing, he saw his son and Hammed
Mahaboob going in a motorcycle. At that time, A1, A2 and A6 also
came in another two wheeler and dashed against the deceased, near an
electric post, situated near Siddhika Beevi's house. His son fell down.
A6 shouted to A1 that he should not leave him alive. Then A1 took a
knife and stabbed him on his chest.
26. His son/deceased ran into the house of Siddhik Beevi with
injuries. A1 to A3 chased him and they also went inside the house and
https://www.mhc.tn.gov.in/judis
locked it from inside. P.W.1 and others raised a hue and cry. A4 to A6
blocked them and prevented them from entering into the house. After
some time, A1 to A3 opened the door and fled away on the western side.
He rushed into the house and found his son in a pool of blood with
injuries on his chest, hip, stomach, kidney. He found around 10 injuries
on his person. He had then lodged the complaint Ex.P1 at about
11.00 pm.
27. Except the above witness, none of the other witnesses
supported the prosecution case. The learned counsel for the appellants
contended that the presence of P.W.1 is doubtful as he was not residing
in the place of occurrence, as he was running a shop in Chennai. He
argued that P.W.1 came to S.P.Pattinam only after hearing the death
news of the son and lodged the complaint. Therefore, there was a delay
in lodging the complaint and delay in handing over the same to the
Judicial Magistrate Court, as it is evident that the FIR had reached to the
Magistrate Court only the next day. There was no proper reply from the
Investigating Agency.
https://www.mhc.tn.gov.in/judis
28. It is seen that during cross examination, P.W.1 admitted that he
was running a shop at Chennai and was residing there. He stated that he
came to S.P.Pattinam for celebrating Ramzan festival.
29. During cross examination, the defense counsel raised a
question whether his son was taken to hospital soon after the occurrence,
P.W.1 admitted that his son was taken to Government Hospital and one
Dr.Radhakrishnan examined him and declared his death. He further
admitted that he informed the cause of injuries to the Doctor. He further
stated that his son was taken to Hospital at 10.00 pm. At that time, he
was also present in the hospital. Thereafter, he informed the same to the
police. Since they did not turn up, P.W.1 and others came with the dead
body near Chatram and staged a road roko. This important fact was not
brought to knowledge of the Court by the investigating officer. It is
noticed that even P.W.1 did not state anything about the same in his chief
examination or in his 161 Cr.P.C statement. This fact was admitted by
the investigating officer in his cross examination.
https://www.mhc.tn.gov.in/judis
30. The prosecution failed to produce medical evidence to show at
what time the son of P.W.1, deceased Mohammed Yousuf was taken to
the Government Hospital and whether P.W.1 was present and informed
the Doctor about the cause of death. The Accident Register was not
produced by the prosecution to show when the son of P.W.1 was taken
to the hospital. Further, this fact was also admitted by one of the witness,
viz., P.W.8, who claimed to be present in the place of occurrence. He
stated that when he had reached the place of occurrence, he found that
Mohammed Yusuf was alive. He was kept in a bench and 4 to 5 persons
took him to Doctor – Radhakrishnan. The Doctor also came immediately
and attended the patient. This fact was concealed by the prosecution. If
they had produced the Accident Register, it would have helped the Court
to fix the time of death and the presence of P.W.1.
31. Further as per P.W.1, he had lodged the complaint at around
11.00 pm in the police station. He admitted that the police station is
situated near by the place of occurrence and he could reach the police
https://www.mhc.tn.gov.in/judis
station within 5 minutes. There was a delay of 2 hours in lodging the
complaint. There was a further delay in sending the same to the Judicial
Magistrate Court. It had reached the Court the next day at 10.15 am. This
delay was not properly explained by the prosecution.
32. During cross examination, P.W.1 further admitted that, the
police came to the occurrence place at 11.00 pm and the dead body was
taken in an ambulance and thereafter, he alone went to the police station
and lodged the complaint.
33. However, P.W.23, who had conducted the major portion of
investigation stated that he went to the place of occurrence at 12.30 pm
and found the dead body in the place of occurrence, which is contrary to
the statement of P.W.1, as P.W.1 stated that the dead body was taken by
the police in an ambulance at 11.00 p.m from the place of dharna and
thereafter, he went to the police station and lodged the complaint,
whereas, P.W.23 stated that when he came to the place of occurrence at
around 12.30 pm, he found the dead body in the place of occurrence.
https://www.mhc.tn.gov.in/judis
34. P.W.23- investigating officer stated that he received the F.I.R
at around 12.30 pm. Again there is a delay in handing over the F.I.R. to
the Investigating Officer. He further admitted during cross examination
that the dead body was found in the place of occurrence at 12.30. Since
the defense counsel took an important defense by raising a doubt about
the presence of P.W.1 and stated that he was present in the place of
occurrence only after hearing the death of the deceased, it is the duty of
the prosecution to clear this doubt and prove that the father, P.W.1 who
is an important eye witness, was available and witnessed the occurrence.
35. But there was a delay in lodging the FIR P.W.1 and the
Investigating Officer stated contrary statements about arrival of the
Investigating Officer in the place. Further, P.W.2 another witness
deposed that A1 to A3 dashed against the two wheeler, in which, the
deceased and Hammed Mahaboob were travelling. But, he had not stated
that at that time, P.W.1 was present in the place of occurrence. It is noted
that as per P.W.1, A1, A2 and A6 dashed against the vehicle of the
https://www.mhc.tn.gov.in/judis
deceased. On the other hand, P.W.2 deposed that A1 to A3 dashed
against the deceased. Both statements are contrary.
36. In the above circumstances, suspicions arise about the presence
of P.W.1. Any how, the investigation officer P.W.23 deposed that soon
after receipt of FIR, P.W.23 - had visited the place of occurrence at 01.30
am and seized the blood stained earth and ordinary earth and conducted
inquest at 07.00 a.m, the next day Further, in the inquest report, it was
mentioned that the deceased person was last seen by P.W.1 at about
10.00 pm. In view of the above document exhibited by the prosecution,
this Court is of the view that the prosecution is able to establish that
P.W.1 was present at the time of occurrence. However, it has to be
verified that whether the prosecution established other factors to prove
the guilt of the accused.
37. In this case, the motive for the offense attributed by the
prosecution for the occurrence is that due to civil dispute both A1 and the
deceased had previous enmity. P.W.1 in his evidence, deposed that
https://www.mhc.tn.gov.in/judis
deceased had filed a case against A1, alleging A1 had encroached the
land of the complainant. Soon after the receipt of the notice from the
Court, A1 came with an Aruval and attempted to kill his son. However
he was kept locked in the neighborhood house by the female members of
the family. On 13.11.2011, when his son came from Thiruvadanai, A1,
A2 and their henchmen chased him and since during that time an auto
came, they fled away.
38. The copy of the decree in O.S.No.32 of 2009 relied upon by
the prosecution has been produced as Ex.P42. This is a judgment
rendered by the District Munsif, Thiruvadanai, dated 27.01.2012. But the
document when perused, shows that the case was not filed by the
deceased, but, it was filed by P.W.1 – Sheik Mohammed as against A1,
A3 and others. The case was dismissed on 27.01.2012 against the
accused. It was stated by P.W.1 during trial that A1 tried to kill the
deceased, soon after receipt of the notice from the Court and that his son
was kept locked in the neighborhood house by the women of the family.
However, he had not spoken anything about the same in his 161 Cr.P.C.
https://www.mhc.tn.gov.in/judis
statement. Further no such neighbors were cited as witnesses to prove
that A1 attempted to kill deceased when a civil case was filed against
him. No criminal complaint was lodged by the deceased or the
complainant against the accused after the attempt of murder.
39. However, it is well settled law that if a case is based on eye
witness, motive behind the crime is usually not relevant and the
prosecution need not prove it.
40. As per evidence of P.W.1, soon after his son fell down from
the two wheeler, A1 stabbed on the chest of his son near the electric post.
Thereafter, in order to save his life, his son rushed into the house of one
Siddhik Beevi. A1 to A3 chased him and went inside the house and
committed the murder by inflicting injuries with the weapons available
with them. This means that the first occurrence took place near electric
post and the second occurrence took place in the house of Siddhik Beevi.
https://www.mhc.tn.gov.in/judis
41. P.W.23 – investigating officer deposed in his evidence that he
reached the place of occurrence at 12.30 pm and recovered the blood
stained earth and ordinary earth from the house of the witness – Siddhik
Beevi. He did not recover blood stained mud from the first place of
occurrence and there was no explanation on the side of prosecution about
non recovery of blood stained earth from the first occurrence place.
Even in the rough sketch, the first place of occurrence was not noted and
whether blood stains available in that place. No such observation were
made by the investigating officer in his rough sketch.
42. Further the vehicle in which the deceased and one Hammed
Mahaboob, viz., P.W.3 were travelling, was not seized and produced
before the Regional Transport Authority to prove whether there was any
damage. The witness - Hammed Mahaboob, who last accompanied the
deceased and travelled along with the deceased had not spoken anything
about the occurrence. He deposed that he is unaware about the
occurrence. P.W.8, P.W.2 did not state who had dashed against the
deceased. Therefore, the prosecution failed to establish that the deceased
https://www.mhc.tn.gov.in/judis
was first hit near the electric post by some of the accused and at that
place all the accused were waiting with weapons.
43. Further the house owner, Siddhik Beevi in whose house the
occurrence has taken place, and the neighbors of the house and the other
eyewitnesses, who saw the incident did not speak anything about the
occurrence. They turned hostile and pleaded that they were not aware of
anything about the incident.
44. Though P.W.1 deposed that he was present at the time of
occurrence, he did not state that he witnessed when A1 to A3 inflicted
injuries to his son inside the house. When there is no direct evidence
about the overt acts against each accused, it is not possible for us to fix
the accused by holding that who had inflicted injuries on the vital parts
and caused death. It is not possible to fix the specific overt acts against
each other, when there no direct evidence.
https://www.mhc.tn.gov.in/judis
45. In fact, originally, A2 to A6 were charged under Section 149
r/w. Section 302 I.P.C,. by the trial Court, A1 to A6 were said to be
present in the place of occurrence and due to injuries inflicted by A1 –
A3, the victim sustained injuries and A4- A6 prevented the others from
entering into the house.
46. In order to prove the offence 149 I.P.C, the prosecution should
prove the offence under Section 141 I.P.C., unlawful assembly. The
provision is as follows:
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, 1the 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
https://www.mhc.tn.gov.in/judis
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.
47. Section 149 I.P.C:
“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
https://www.mhc.tn.gov.in/judis
of the committing of that offence, is a member of the
same assembly, is guilty of that offence.”
48. The Supreme Court in the case of Manjit Singh Vs. State of
Punjab reported in (2019) 8 SCC 529 has held as under :
“(i) the commission of an offence by any
member of an unlawful assembly, and (ii) such
offence must be committed in prosecution of the
common object of the assembly or must be such as
the members of that assembly knew to be likely to
be committed in prosecution of the common object.
Once it is established that the unlawful assembly
had common object, it is not necessary that all
persons forming the Hotam Singh & Ors. Vs. State
of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh
Vs. State of M.P. (Cr.A. No. 666 of 2010) unlawful
assembly must be shown to have committed some
overt act. For the purpose of incurring the
vicarious liability for the offence committed by a
member of such unlawful assembly under the
provision, the liability of other members of the
unlawful assembly for the offence committed
during the continuance of the occurrence, rests
https://www.mhc.tn.gov.in/judis
upon the fact whether the other members knew
beforehand that the offence actually committed was
likely to be committed in prosecution of the
common object.
***
17. A "common object" does not require a
prior concert and a common meeting of minds
before the attack. It is enough if each member of
the unlawful assembly has the same object in view
and their number is five or more and that they act
as an assembly to achieve that object. The
"common object" of an assembly is to be
ascertained from the acts and language of the
members composing it, and from a consideration of
all the surrounding circumstances. It may be
gathered from the course of conduct adopted by
the members of the assembly. For determination of
the common object of the unlawful assembly, the
conduct of each of the members of the unlawful
assembly, before and at the time of attack and
thereafter, the motive for the crime, are some of the
relevant considerations. What the common object
of the unlawful assembly is at a particular stage of
the incident is essentially a question of fact to be
https://www.mhc.tn.gov.in/judis
determined, keeping in view the nature of the
assembly, the arms carried by the members, and
the behaviour of the members at or near the scene
of the incident. It is not necessary under law that in
all cases of unlawful assembly, with an unlawful
common object, the same must be translated into
action or be successful.
18. In Masalti v. State of U.P. a Constitution
Bench of this Court had observed that: (AIR p. 211,
para 17) '17. ... Section 149 makes it clear that 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; and
that emphatically brings out the principle that the
punishment Hotam Singh & Ors. Vs. State of M.P.
(Cr.A. No. 620 of 2010) Rajbahadur Singh Vs.
State of M.P. (Cr.A. No.666 of 2010) prescribed by
Section 149 is in a sense vicarious and does not
always proceed on the basis that the offence has
https://www.mhc.tn.gov.in/judis
been actually committed by every member of the
unlawful assembly.'"
49. If the prosecution is able to establish the offense under Section
149 I.P.C, all the accused are punishable under Section 302 r/w. 149
I.P.C, even if some of the accused inflicted injury and others did not
actively participate on the ground of vicarious liability. But the
prosecution failed to prove the same as none of the witnesses stated that
A1-A6 gathered with common object to commit murder and assembled
with deadly weapon. Even P.W.1 did not state the above fact. But, the
trial Court convicted A1 to A3 only under Section 302 I.P.C and
acquitted them from section 149 I.P.C.
50. P.W.1 did not state the specific overtact of each accused on the
body of his son, as the occurrence happened in a closed door. Unless it is
established by the prosecution about the overtacts of each A1 to A3 it is
unsafe to come to the conclusion that A1 to A3 were alone responsible
for the offense.
https://www.mhc.tn.gov.in/judis
51. In order to prove the offense, under Section 300 I.P.C, the
following ingredients are necessary and the same has to be established by
prosecution beyond reasonable doubt.
“300. Murder :
Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing
death, or—
Secondly — If it is done with the intention of
causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom the
harm is caused, or—
Thirdly — If it is done with the intention of
causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or—
Fourthly — If the person committing the act
knows that it is so imminently dangerous that it must,
in all probability, cause death or such bodily injury
as is likely to cause death, and commits such act
https://www.mhc.tn.gov.in/judis
without any excuse for incurring the risk of causing
death or such injury as aforesaid.”
52. To prove the offence under section 300 I.P.C, intention to
cause injury with knowledge has to be proved and it should be
established that the injuries inflicted were sufficient to cause death and
that the accused knew that it is imminently dangerous and it must in all
probability cause death. Mere presence of accused in the place of
occurrence without proof who had caused the injury on the vital part is
not sufficient. Further, evidence of the eyewitness should be specific
about the overt acts of each accused to show that the deceased died due
to the injuries inflicted by each accused.
53. Further in this case, P.W.8 deposed that the deceased was
alive at 8.40 pm and he took him to S.P.Pattinam Hospital and stated that
he was examined by Doctor – Radhakrishnan. His evidence is contrary
to the evidence of P.W.1. P.W.1 stated that his son was attacked at 9.00
pm and he found the dead body inside the house of Siddhik Beevi. The
time of death is not clear.
https://www.mhc.tn.gov.in/judis
54. P.W.12 and P.W.14 spoken about the motive, but P.W.12 is the
brother of the deceased and P.W.14 is the mother of the deceased. Both
stated that A1 attempted to kill the deceased Mohammed Yusuf, even
prior to the occurrence, for which, no criminal complaint was lodged by
them. In order to prove the same, no other independent witness had been
examined.
55. Further, no independent witnesses, who were residing near the
place of occurrence were examined.
56. Confession, arrest and recovery were not proved. The Village
Administrative Officer and the Village Assistant in whose presence the
accused were arrested and material objects were seized, did not support
the case of the prosecution, but stated that the signature in the confession
statement and in the recovery mahazer had been obtained in the police
station. The arrest, confession and recovery is therefore not proved by
the prosecution.
https://www.mhc.tn.gov.in/judis
57. As per the prosecution, A2 and A3 were holding weapons and
chased the deceased P.W.1, in his evidence did not state that A2 and A3
were found with weapons.
58. The injuries sustained by the deceased was spoken by P.W.24
and through her Ex.P13 marked. The injuries were as follows:
“ External injury: Stab injury:
1. Infront of the chest left side medial to
eternal at 7th rib 6 th Ins. about 3'' X 1.5'' X 3.5''
2. Left side of left nipple about 1'' X 1'' X 4''
of 3rd rib
3. Below the left side of left nipple about 1''
X 1'' X 1''
4. Right side below the ribs about 3'' X 1.5''
X 4''
5. Left side of penis in public rejoin about
1'' X 1'' X 1.5''
6. In the right cheek about 1'' X 0.5'' X 1.5'
7. Right maxillary infront of ear about 1'' X
0.5'' X 0.5''
https://www.mhc.tn.gov.in/judis
8. Superficial cut injury of size length 1'' X
width 0.5 cm only skin is separated not in depth.
Below this another superficial cut injury about 2''
X 0.5 cm, both ends tapering tail.
9. Abrasion seen in left forehead rape of
role and right cheek
10. Abrasion seen in both knees. They are
only superficial”
59. As far as injuries are concerned P.W.24 Doctor who had
conducted post mortem admitted in chief examination that 9th and 10th
injuries are lacerated injuries and there is possibility that they would have
occurred when a person had a fall. As far as the 8 th injury is concerned,
there is possibility it could be caused by friction. The injuries 1 to 7 are
stab injuries.
60. As per prosecution three knifes were seized from A1 to A3.
However, under Ex.P17, the acknowledgment received from Serology
Department, it is seen that one knife alleged to be seized from A2 alone
was sent for analysis. The serology report was not produced on the side
https://www.mhc.tn.gov.in/judis
of the prosecution and it is not understood why the other two weapons
were not sent for chemical analysists. The doctor stated that due to
excess bleeding and due to shock, the deceased would have died.
Injuries 1 to 7 are stab injuries and it is not proved by the prosecution
about the specific overt acts of each accused. Nobody knows what
happened inside the house. One of the accused- A1 died during trial and
charges against the said accused had abated.
61. The trial Court convicted the accused Nos.2 and 3 under
Section 302 I.P.C. But the overt act as against each accused has not been
proved. Without establishing the specific overtact, the accused could not
be punished based on assumption. If two views are possible, on the basis
of evidence on record and if one is favorable to the accused, innocence
of accused should be adopted. This is applicable in a case relying on
circumstantial evidence. But, in this case the only available witness
against the accused is P.W.1, and he was not in a position to state what
happened inside the house. Hence, the benefit of doubt must be given to
the accused.
https://www.mhc.tn.gov.in/judis
62. In the judgment of the Hon'ble Apex Court in Appeal (Crl.)
Nos.73 and 74 of 2022 (Raghunath and Ram Kishan V. State of
Haryana, reported in 2003-1-SCC-398), it had been held as follows:
“ 33. It is now well settled principle of law that if
two views are possible, one in favour of the accused and
the other adversely against it, the view favouring the
accused must be accepted.”
63. Hence, this Criminal Appeal is allowed and the judgment of
the trial Court is hereby set aside and the accused are acquitted from the
charges. The bail bonds executed are to be cancelled. The fine amount
paid should be refunded to the accused.
(C.V.K.J) & (R.P.J)
30.10.2024
Index :Yes/No
Internet :Yes/No
NCC :Yes /No
LS
https://www.mhc.tn.gov.in/judis
To
1.The Additional District and Sessions Judge,
Ramanathapuram.
2. The Inspector of Police,
S.P.Pattinam Police Station,
Ramanthapuram District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.V. KARTHIKEYAN,J.
AND
R. POORNIMA,J.
LS
Pre-delivery judgment made in
30.10.2024
https://www.mhc.tn.gov.in/judis
