Chellappa vs State Through The Inspector Of Police

This appeal arises out of the final judgment and order dated 19.12.2007 passed by the High Court of Madras, Bench at Madurai, in Criminal Appeal

No. 1 of 2006, whereby the High Court partly allowed the criminal appeal filed by the accused-appellant, along with others, and set aside the

conviction imposed on him under Sections 148 and 341 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPCâ€). Further, the

conviction and sentence imposed on him under Section 302 read with Section 149, IPC was converted into the conviction under Section 302 read with

Section 34, IPC. However, the conviction imposed on the accused-appellant under Section 324 of the IPC was confirmed by the High Court.

The challenge before the High Court was against the judgment dated 28.10.2005, passed by the Trial Court in S.C. No. 9 of 2005 convicting the

accusedÂappellant under Sections 148, 341, 324 and Section 302 read with Section 149, IPC. The Trial Court sentenced the accusedÂappellant to

undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 500/Â for the offence punishable under Section 148, IPC, and in default of

payment of fine thereof to further undergo rigorous imprisonment for 3 months. The accusedÂappellant was also sentenced to undergo rigorous

imprisonment for 1 month and to pay a fine of Rs. 300/Â for the offence punishable under Section 341, IPC, in default thereof to further undergo

rigorous imprisonment for 1 week. The accusedÂappellant was also ordered to undergo rigorous imprisonment for 3 years and also to pay fine of Rs.

500/Â for the offence punishable under Section 324 of the IPC, and in default thereof, to further undergo rigorous imprisonment for 1 month. Finally,

for the offence punishable under Section 302 read with Section 149 of the IPC, the accusedÂappellant was sentenced to undergo imprisonment for

life and to pay a fine of Rs. 1000/Â​, and in default of payment of fine thereof, to further undergo rigorous imprisonment for 3 months.

The factual matrix as advanced by the prosecution, necessary for the disposal of this case is that all the accused persons viz., A1 to A5 including

accusedÂappellant being A3, used to eve tease PW2, aged 26 years old, who was the wife of the deceased. PW2 informed her husband about the

same and the deceased reprimanded the accused persons. However, on 28.06.2003, at about 7.30 p.m., when the deceased’s father (PW1), PW2

and the deceased were nearing the bus stop on their way to the church, PW2 was once again eve teased by the accused persons in front of the

deceased. As a result, a quarrel took place, wherein the accused persons, including the accusedÂappellant, warned the deceased by giving him death

threats.

The main incident took place at about 09.30 p.m. on the same day, when the deceased, his father (PW1) and wife (PW2), were returning to their

house. On their way towards the Idinthakarai bus stop, they found all the accused persons standing near the bus stop. The deceased, PW1 and PW2

were stopped and attacked by the accused persons. A1 was armed with a knife, while all other accused, including the accusedÂappellant herein were

armed with aruvals. A1 scolded the deceased and stabbed him in his stomach. The deceased could not bear the attack and fell down. When, PW1

tried to lift the deceased, he was attacked by the accusedÂappellant with an aruval on the left side of his head. On an alarm being raised by PW1 and

PW2, the accused persons fled from the scene. The deceased was immediately taken to his house, wherein he breathed his last.

The Trial Court framed charges under Sections 148, 324, 341, 302 read with Section 149 of the IPC against the accusedÂappellant along with other

accused persons. After examining the witnesses and material available on record, the Trial Court convicted and sentenced the accusedÂappellant in

the manner detailed above. Subsequently, the criminal appeal filed before the High Court stood partly allowed, as discussed above, vide the impugned

judgment.

We have heard the learned counsel appearing for the accused appellant and have carefully scrutinized the material evidence placed before us. It

is to be noted that A2, A4 and A5 were acquitted by the High Court, and only the accusedÂappellant, being A3, has preferred an appeal before this

Court. The main accused, A1, has not filed an appeal before this Court against the impugned judgment.

The sole allegation against the accusedÂappellant is that he inflicted an injury on the head of PW1, the father of the deceased, by using an aruval.

PW1 and PW2, the two eyewitnesses to the incident, clearly stated in their respective testimonies about the role of the accusedÂappellant in injuring

PW1. The injuries sustained by PW1 have been proved under medical examination vide the evidence of PW11 and Ex. P21, i.e., the accident register.

Further, recovery of the aruval was made pursuant to the confession statement (Ex. P15) made by the accusedÂappellant, clearly establishing the

guilt of the accusedÂ​ appellant with respect to causing hurt to PW1.

It is clear from the record that there is no allegation by the prosecution, or any statement by the two eye witnesses, PW1 and PW2, regarding the

infliction of any injury by the accusedÂappellant on the deceased. As such, the conviction of the accusedÂappellant under Section 302, IPC was done

by initially reading Section 302, IPC with Section 149, IPC, and subsequently, on the acquittal of A2, A4 and A5 of all offences by the High Court, by

reading Section 302, IPC with

It must be noted that Section 34, IPC is not a substantive offence. Before a person can be held responsible under this section, it must be established

that there was a common intention and the person being sought to be held liable must have participated in some manner in the act constituting the

offence. The common intention shared by the accused should be anterior in time to the commission of the offence, but may develop on the spot when

the crime is committed [See Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407] .However, from a perusal of the impugned High Court

judgment, as well as the submissions of the prosecution, it is clear that no reasoning or evidence has been advanced as to the fulfillment of the

requirements for the conviction of the accusedÂ​appellant under Section 34, IPC in the present case.

Further, a perusal of the circumstantial evidence in the case does not clearly indicate that the accusedÂappellant had common intention with the

main accused to kill the deceased. In fact, from the statement of PW2, it is clear that at the time of the incident the main accused was the only person

who reacted to the words of the deceased and his family members asking them to make way, and stabbed the deceased in the spur of the moment.

As such, when some doubt exists as to the common intention animating the accusedÂappellant, the same must inure to the benefit of the accusedÂ‐

appellant.

Therefore, after hearing the submissions advanced by the parties and carefully perusing the material placed on record, we are of the opinion that

the conviction and sentence of the accusedÂappellant under Section 302, IPC read with Section 34, IPC deserves to be set aside as the same is not

proved beyond reasonable doubt.

Thus, we deem it fit to interfere with the judgment of the High Court to the extent indicated above. The appeal is partly allowed. AccusedÂ‐

appellant stands acquitted of the offence under Section 302 read with Section 34, IPC.

It is made clear that we are not interfering with the conviction of the accusedÂappellant for the offence under Section 324, IPC and his sentence

thereof, to undergo rigorous imprisonment for 3 years and also to pay fine of Rs. 500/Â, and in default, to further undergo rigorous imprisonment for 1

month. However, from the record, it appears that the accusedÂappellant has already undergone the period sentenced for his conviction under Section

324, IPC and therefore, he is to be released forthwith. Ordered accordingly.