Jagebar Ali @ Settu Vs.
State of Tamil Nadu [2009] INSC 101 (20 January 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 38 OF 2007 Jagebar
Ali @ Settu ....Appellant Versus State of Tamil Nadu ....Respondent
Dr. ARIJIT PASAYAT,
J.
1. Challenge in this
appeal is to the judgment of a Division Bench of the Madras High Court
convicting A-1, the present appellant for offence punishable under Section 302
of the Indian Penal Code, 1860 (in short the `IPC'). A-2 to A-7 were found
guilty under Section 304 Part II, IPC and each was sentenced to undergo
rigorous imprisonment for five years. A-3 to A-7 were found guilty of offence
under Section 324 IPC and each was sentenced to undergo RI for two years. A-1
to A-7 were acquitted of the other charges levelled against them. A-9 and A-10
were acquitted of the charges levelled against them. Fifteen persons faced
trial, out of them the trial Court acquitted A-8, A-11 to A-15. By the impugned
judgment, as noted above, the High Court directed acquittal of A-9 and A-10.
2. The prosecution
version as unfolded during trial is as follows:
PW-1 is the native of
Thugli Periyar Nagar. PWs 2, 3, 4 5 and 6 belonged to the same place. PWs 2, 3
and 4 were originally employed in Ambika Sugar Mills, Kottur. P.Ws. 6 and 7 are
also the residents of the said place and were carrying on agricultural
operations. P.W.8 belonged to Kealathur village, where he was serving as
village menial. P.W.9 belonged to Keezhasuriya Moolai village, where he was
serving as village assistant community. A-1 to A-11 and A-13 to A-15 belong to
Hindu Padayachi out of whom, A-1 and A-2, though belonged to Hinduism
originally, switched over to Muslim faith. A-12 belonged to another community.
P.Ws. 1 to 4 belonged to scheduled caste and they were all employed at the time
of occurrence under one Bhaskar.
2 On 26.3.2001 at
about 5.00 p.m., after finishing work, P.Ws. 1 to 4 came out of the sugar
factory and went to a nearby tea stall for taking tea. At that time, A-1 was
plying auto on the road. On seeing sugarcane on the road, P.Ws. 1 to 4 went
near the middle of the road. When A-1 came nearby he uttered "you add four
more persons and lie on the road". In reply, P.W.1 told him "on hearing
the horn of the Auto, we gave way and even then, why are you scolding".
There arose a quarrel. In that, A-1 took casurine stick and tried to attack
P.W.1. The other witnesses, namely P.Ws. 2 to 4 restrained P.W.1. The other
witnesses, namely P.Ws. 2 to 4 held the accused and stopped him from attacking.
This was also witnessed by the Thangaraju (hereinafter referred to as
deceased), who was taking tea in a nearby tea stall. He suddenly intervened and
pacified them.
A-1 turned the Auto
and took the same to Keezhasuriyamoolai village.
P.Ws. 1 to 4 went to
Muniyendi Vilas for taking tea. Forty five minutes later, at about 6.00 p.m.,
when the witnesses along with Thangaraj were at the place of occurrence, A-l,
A-2, A-4 to A-6 armed with aruvals, A-3 armed with an iron road and A-7 armed
with a knife and the other accused armed with casurina sticks, came there. The
deceased Thangaraju tried to pacify them. A-1 cut the deceased on the left side
of the neck. Again A-1 cut the deceased below the left ear. A-4 cut him on the
left side of the hip. A2 3 cut him with aruval on the left shoulder. A-5 cut
the deceased on the waist.
A-7 stabbed him with
the knife on the left armpit and the deceased fell down. A-3 beat PW-1 on the
head with the iron rod. A-4 cut P.W.1 on the left waist. The rest of the
accused surrounded P.W.1 and cut P.W.1 on the right arm, left shoulder, right
thigh and on the back respectively and they fled away from the place of
occurrence.
One Mohan took P.W.1
to the Government Hospital, Kumbakonam, where he was admitted by P.W.10, the
Doctor, at about 7.00 p.m. He issued Ex.P.11, the wound certificate. A
communication was received by P.W.
13, the Head
Constable, attached to Kumbakonam East Police Station at 19.30 hours, who in
turn informed the same to Penthenellur Police Station, within whose
jurisdiction the occurrence has taken place. On receipt of the intimation on
26.3.2001 at 1930 hours, P.W.16, the Sub Inspector of Police proceeded to the
Government Hospital, Kumbakonam at 2030 hours. He recorded the statement of
P.W.1, which was marked as Ex.P.1, on the strength of which a case came to be
registered in Crime No. 72 of 2001 under Sections 147, 148, 324, 307 and 302
IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989. Ext. P17 the FIR was dispatched to the Court.
4 P.W.19, the Deputy
Superintendent of Police, on receipt of the copy of the FIR on 26.03.2001 at
about 11.00 p.m., proceeded to the place of occurrence and made an inspection
in the presence of two witnesses. He prepared Ex.P.2, the observation mahazar
and Ex.P.35, the rough sketch. He conducted inquest on the dead body of the
deceased in the presence of the witnesses and panchayatdars and prepared
Ex.P.35, the inquest report.
Following the same,
the dead body was sent to the Government Hospital, Thiruvidaimarudur for the
purpose of post-mortem.
The autopsy of the
dead body was conducted. During investigation A-5 gave confession statement
voluntarily and the same was recorded in the presence of witnesses. Following
the same A-5 produced five aruvals, one iron rod and one knife in the presence
of witnesses. After completion of investigation charge sheet was filed. Since
the accused persons pleaded innocence trial was held. Prosecution examined 20
witnesses. As noted above, the trial Court found the appellants to be guilty
and awarded punishments.
Before the High Court
the primary stand related to acceptability of so called eye witnesses PWs 1 to
4. Particularly the emphasis was made on the 5 evidence of PW-1 to show that
there could not have a common object to murder the deceased or attempt to
murder PW-1. It was also submitted that it is highly unbelievable that twenty
persons were involved in such an attempt. It was, therefore, highlighted that
in a group clash PWs 1 to 4 could not identify the assailants properly. The
High Court did not find any substance in the stand taken by the appellant. The
High Court did not accept the stand of the prosecution regarding applicability
of Section 304 Part II read with Section 149 IPC. It was held that in respect
of the respective acts committed by each one of them the matter is required to
be considered.
From the post mortem
certificate it was noticed that the first injury was caused by A-1 with aruval
on the neck and the corresponding injury caused the death. At the same time,
A-2, A-4, A-5 and A-6 were armed with aruval, A-7 with knife and A-3 with iron
rod and they have attacked the deceased and contributed corresponding injuries.
Therefore, it was held that A-1 had to be convicted in terms of Section 302
IPC. So far as others are concerned the acts attracted Section 304 Part II IPC.
3. Learned counsel
for the appellant has submitted that while others were convicted for offence
punishable under Section 304 Part II, IPC he alone has been convicted under
Section 302 IPC. According to him, there is 6 a parity between the co-accused
persons. The High Court has indicated the reasons for which the appellant's
case was treated differently. The trial Court and the High Court have noted
that the appellant had given a fatal blow on the neck with aruval and the
injury caused by such act proved fatal.
Therefore, there is
no substance in the plea of the appellant that he stood on similar footing as
that of co-accused persons.
4. In view of the
findings recorded by the trial Court and the High Court we find no merit in
this appeal which is accordingly dismissed.
...............................................J.
(Dr. ARIJIT PASAYAT)
.....................................................J.
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