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Judgment
M. Karpagavinayagam, J.—Since all these revisions arise out of a single incident, common order is being passed.
The Petitioners Selvam (A-2) and Lakshmanan (A-1) who have been convicted for the offences under Sections 341, 307 (two counts) and 364
I.P.C., in Sessions Case No. 111 of 1991, on the file of First Additional Assistant Sessions Court, Erode, as has been confirmed by the Principal
Sessions Court, Erode, in C.A. Nos. 58 and 57 of 1992, have preferred these Revision in Crl. R.C. Nos. 738 and 739 of 1993, respectively.
Kannaiyan alias Rajendran, who was examined as P.W.1, filed the Revisions for enhancement of punishment, in Crl. R.C. Nos. 46 and 47 of
1994, against the judgment in C.A. Nos. 57 and 58 of 1992, reducing the sentence imposed upon A-1 Lakshmanan and A-2 Selvam, for the
offences u/s 307 (two counts) I.P.C. from 4 years R.I., into 2 years R.I.
Facts are these:
(i) The Petitioner Kannaiyan @ Rajendran (in Crl. R.C. Nos. 46 and 47 of 1994) a B.Com., graduate, residing along with his parents at
Vadukapatti village, is the first informant in this case and has been examined as P.W.1. He is a convener of ""Hindu Masdoor Kishan Panchayat
Labour Association"", in Periyar District, and a member of ""Nalluthavi Narpani Mandram"", which has been mainly campaigning against illicit liquor,
gambling etc. P.W.2 Gettimuthu and P.W.3 Loganathan are also the members of the said mandram. The members of the said mandram used to
give information to the police about the illicit distillery, and help the police in eradicating the illicit liquor business.
(ii) Lakshmanan (A-1) and Selvam (A-2), the Petitioners in Crl. R.C. Nos. 739 and 738 of 1993, have been indulging in the sale of illicit liquor. In
fact, Lakshmanan (A-1) took an arrack shop in a Government auction, and sold arrack in a separate shop. He was working under one Duraisamy,
former M.L.C. All the other accused in the Sessions Case are the associates of A-1. Since P.W.1 and other members in the mandram frequently
gave information to the police about the illegal activities of A-1 and others, they developed enmity towards them. A-1 indulged all sorts of violence
by employing hirelings and creating scare in the mind of local villagers and he used to get things done through this process.
(iii) Prior to the instant occurrence, the accused along with 50 persons went to Vijayanagaram village, for attacking the Harijans, who are the
members of the ''Narpani Mandram"". On information, police came to the spot and arrested the accused. Thereafter, they came out on bail. With
reference to this incident, a criminal case is pending in the Court of Judicial Magistrate No. 2, Erode.
(iv) On behalf of the Mandram, in which P.W.1 is a member, several memoranda were sent to the higher officials in the police department, to the
District Collector and the Chief Minister of Tamil Nadu. Therefore, the accused had a grudge over the members of the said mandram and planned
to attack them.
(v) On 1-12-1990 at about 12:50 P.M., P.Ws.1 to 3 and one Karthikeyan, got into a town bus at Arachalur in order to go to Poonthurai. When
the bus was proceeding towards the destination, A-2 Selvam along with A-8 Ponnusamy were found coming in a motor-bike, chasing the bus. The
other accused persons were also found sitting in a van coming behind the motor-bike. Since P.W.3 sensed danger to the lives of P.Ws.1 to 3 at
the hands of the accused persons, he requested the driver P.W.7 to drive fast. So, the driver drove the bus at a high speed. However, at
Avalpoonthurai Main Road, near Bharathi Nagar, Christian Colony, the motor-bike driven by A-2 Selvam over-took the bus and made the bus to
stop, by blocking the same. Then the accused persons who were in the motor-bike and van, got down and boarded the bus. About 16 persons
armed with sticks, aruval, cycle chain, crow-bar and heavy sticks coming out of the van, shouted . At that time P.W.1 Kannaiyan @ Rajendran
was sitting in the left rear side of the bus. A-1 Lakshmanan got into the bus with a stick through rear entrance. P.W.1 got scared and tried to move
front. A-2 Selvan entered into the bus through front entrance of the bus with aruval. Following A-2, other accused also tried to get into the bus. On
seeing this, the other passengers scared and got down from the bus and escaped. A-1 identified P.W.1 and instigated the other accused to beat
and kill him.
vi) A-2 with aruval attacked P.W.1, inflicting a cut on his forehead, while A-l with stick attacked him on his right knee. A-8 Ponnusamy with
crow-bar inflicted injuries on P.W.1''s left elbow. Again A-2 attacked P.W.1 with aruval and while P.W.1 blocked the same, the cut fell on his
right palm.
(vii) At the same time, P.W.2-Gettimuthu who tried to conceal himself under the seat, was also attacked by A-2 with aruval, on his back of the
head. A-1 with stick attacked on the left hip, while A-8 with crow-bar assaulted an injury on the left elbow of P.W.2. Seeing this horrible incident,
P.W.3 and the said Karthikeyan jumped out of the bus. Though they were chased by the accused, they managed to escape. Thereafter, P.Ws. 1
and 2 were taken from the bus and put into a van by the accused.
(viii) A-1 was heard instructing other accused to beat and kill P.Ws. 1 and 2 in the van itself. When P.Ws.1 and 2 were again attacked by the
accused, they pretended as if they died. So, the van was stopped at Vannanparai, Vadukapatti, and P.Ws.1 and 2 were thrown out of the van at
the road side, thinking that they were dead. Then the van sped away.
(ix) P.W.1 who sustained very serious injuries could not even move. So, he requested P.W.2 to go to the nearby village and seek for help. P.W.2
who also sustained number of injuries, somehow managed to go to the nearby village. On the way he met P.W.6 Eswari, who was grazing cattle.
P.W.2 narrated the incident to her and asked for water and help. She procured water for P.W.2 and then both of them came to P.W.1 and he
was also given water. Thereupon, P.W.6 went to the village and brought P.W.14 Kandasamy of Kattupalayam village. On seeing the critical
condition of P.Ws.1 and 2, P.W.14 arranged to get a taxi from Arachalur and took them to Government Hospital, at Erode, and admitted them.
(x) At about 3:45 P.M., P.W.4-Doctor gave treatment to P.Ws.1 and 2. P.W.5, X-ray Technician took X-ray of the injured persons.
Immediately, intimation was sent to the out-post police station at Government General Hospital, Erode.
(xi) P.W.12, Grade I Police Constable, attached to outpost police station, on receipt of intimation went to the hospital, and recorded the
statement-Ex.P1 from P.W.1. He sent Ex.P1 to the Sub-Inspector of Police, Arachalur. P.W.18, Sub-Inspector of Police on receiving Ex.P1
registered a case in Cr. No. 660 of 1990, for the offences under Sections 147, 148, 341 and 307 I.P.C., and prepared Ex.P13 - printed F.I.R.,
and sent the same to the Court and higher police officials.
(xii) P.W.15, the Inspector of Police, on receipt of wireless message, took up investigation, came to the Hospital and obtained the statements of
P.Ws.1 and 2. On 2-12-1990, at 7:00 A.M., he went to the first spot, and prepared Ex.P11-observation mahazar and drew Ex.P14-rough
sketch. At 1:00 P.M., he went to Vannanparai Road, where P.Ws.1 and 2 were thrown out of the van, and prepared Ex.P12-observation
mahazar and Ex.P15-rough sketch. Then he examined P.Ws.3, 6 and 14.
(xiii) On 3-12-1990 he arrested some of the accused and recovered the weapons and van. In the mean time, the accused 1 and 2 surrendered
before the Court and got bail. After finishing the investigation, on 20-4-1991, the investigating officer filed a chargesheet for the offences under
Sections 147, 148, 341, 364 and 307 I.P.C., against A-1 to A-9
After committal, learned 1st Additional Assistant Sessions Judge, Erode, framed charges and commenced the trial. On behalf of the
prosecution, P.Ws.1 to 15 were examined, Exs.P1 to P20 were filed and M.Os.1 to 17 were marked. On behalf of the defence, though no
witness was examined, Exs.D1 to D7 were marked.
On consideration of the entire materials, the trial Court, though acquitted A-3 to A-9, convicted A-1 Lakshmanan and A-2 Selvam (the
Petitioners in Crl. R.C. Nos. 739 and 738 of 1993) for the offences under Sections 341, 307 (two counts) and 364 I.P.C., and sentenced them to
pay a fine of Rs. 500/- in default to undergo S.I. for one month for the offence u/s 341 I.P.C., and to undergo R.I. for four years and pay a fine of
Rs. 3,000/- in default to undergo S.I. for six months for the offences u/s 307 (two counts) I.P.C., (for each count) and to undergo R.I. for two
years and to pay a fine of Rs. 2,000/- in default to undergo S.I. for six months for the offence u/s 364 I.P.C. The sentences were directed to run
concurrently.
In the appeals filed by them in C.A. Nos. 57 and 58 of 1992, learned Principal Sessions Judge, confirmed the convictions and sentences
imposed by the trial Court, except the modification by reducing the sentence in respect of the offence u/s 307 I.P.C., (two counts) from 4 years
R.I., into 2 years R.I. Against the confirmation of the convictions and sentences, A-2 and A-1 filed Crl. RC. Nos. 738 and 739 of 1993, and for
enhancement of sentence, the first informant Kannaiyan @ Rajendran, filed Crl. R.C. Nos. 46 and 47 of 1994, as stated earlier.
Mr. B. Sriramulu, learned senior counsel, appearing for the Petitioner in Crl. R.C. No. 738 of 1993 (A-2 Selvan) and Mr. K.V. Sridharan,
learned Counsel appearing for the Petitioner in Crl. R.C. No. 739 of 1993 (A-1 Lakshmanan) would vehemently contend that both the Courts
below have failed to consider that the prosecution has not proved its case beyond doubt, that they have not appreciated the evidence adduced by
the prosecution in the proper perspective, and that they have not properly considered the material contradictions found in evidence, which would
affect the entire core of the prosecution.
Before launching discussion on the merits of the case, let me go into the scope of Revision under Sections 397 and 401 Code of Criminal
Procedure, in order to decide, how far, this Court under the Revisional jurisdiction, could interfere in the findings of fact, and the conclusion arrived
at by the trial Court, as well as by the lower Appellate Court.
Let me now have a quick look at the case law available on this subject, as referred to by learned Counsel appearing for the
Petitioners/accused, in order to show that this Court got powers in revision, to interfere in the concurrent findings of Court below.
(i) In Esakki Thevar v. State 1959 M.W.N. Cri. 136, this Court has held as follows:
Hence, the conclusion upon this aspect would be that the High Court could and does interfere in criminal Revision, even upon findings of fact, and
even though they may be concurrent findings of two Courts below, where the conscience of the Court is satisfied that in the broad interests of
justice, the conviction is not sustainable.
(ii) The Apex Court in Pranab Kumar Mitra v. West Bengal State 1959 M.W.N. Cr.1, repeated the same view in the following words:
Where the High Court thinks fit and proper to entertain an application in Revision or calls for the records suo-motu, it has the power to examine
the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction
itself from that point of view.
(iii) A Single Judge of the Kerala High Court in Raghavan Pillai Vs. Gourikutty Amma and Another, , would observe that ""Ordinarily the revisional
Court does not interfere with findings of fact but when such a finding is arrived at by disregarding fundamental rules of evidence, interference is
called for.
(iv) Arunachalam, J. of this Court, while dealing with a revision in Durai v. State 1991 L.W. (Cri.) 61, added that ""whether or not the High Court
will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. Indeed it is discretionary power
which was to be exercised in aid of justice,... Notwithstanding the death of the convicted person pending Revision, the High Court has the power
to examine the whole position of the correctness, propriety or legality of the conviction recorded and the sentence imposed.
(v) It will be more appropriate to extract the observations of the Full Bench of Goa, Daman and Diu in the case of Caetano Colaco v. Joao
Rodrigues 1966 Cri. L.J. 1412, as follows:
It is true that the scope of Section 435 of the Code (Old) is wider in so far that the High Court can consider the correctness legality or propriety of
any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of an inferior Court, but even so, this jurisdiction is
not to be exercised in every case of impropriety or illegality, unless it causes failure of justice. As a broad proposition we may state that
interference may be justified where (a) the decision is grossly erroneous; (b) where there is no compliance with the provisions of law, (c) where the
finding of fact affecting the decision is not based on the evidence; (d) where material evidence of the parties is not considered, and (e) where
judicial discretion is exercised arbitrarily or perversely. These instances are illustrative and not exhaustive. Each case must of necessity depend on
the facts and circumstances of the particular case before the Court.
(iv) In Mithlesh Kumari Vs. Bindhawasani and Another, G.B. Singh, J. for Lucknow Bench of Allahabad High Court, stated as follows:
It was firstly argued by the learned Counsel for the revisionist that the findings of the learned Magistrate about the second marriage of
Bindhawasani, was of an issue of fact and should not have been interfered within Revision by the learned Additional Sessions Judge. I do not find
much force in this contention. It is true that in Revision the conclusions of fact based on evidence cannot be canvassed and attacked on the footing
of an appeal and the Court of revision should not ordinarily look into the evidence to see whether finding is correct, and the evidence is sufficient in
support of it. But the finding is perverse and miscarriage of justice has occurred the Court of Revision in order to do justice, can enter into
evidence of fact and interfere with the finding of fact.
(vii) In Sudip Gosh v. State of Tripura 1994 (1) Cri 706 the Gauhati High Court, chose to make the following observation:
It is true that ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below specially by re-appreciating the
evidence in its revisional jurisdiction. But in special or proper cases where it is found that the Courts below gravely misappreciated or
misconceived the evidence the High Court in my opinion will go into the whole evidence.
(viii) In Chandrabati Sharma v. State of West Bengal 1994 (3) Cri 768, the Calcutta High Court had occasioned to consider the similar fat. They
read as hereunder:
Where the judgment of the lower Court is palpably wrong or where the case appears to be doubtful, High Court is empowered to interfere with
the finding of fact, while exercising revisional jurisdiction.
Mr. Suresh, learned Counsel appearing for the Petitioner in Crl. R.C. Nos. 46 and 47 of 1994, in order to substantiate his submission that the
scope of revision is so limited, has cited several decisions, which are as follows:
(i) In Sushil Kumar Dutta Vs. The State, a Division Bench of Calcutta High Court, emphasised that ""where the facts, circumstances and the
background were sufficiently truth-revealing and where both the trial and the Appellate Courts had concurrently arrived at the truth not
perfunctorily but was proved beyond reasonable doubt. Ordinarily it is not open for the High Court to interfere with the concurrent findings of the
courts below specially by reappreciating the evidence in its revisional jurisdiction.
(iv) In Om Pratap Singh Vs. State, a single Judge of the Lucknow Bench of Allahabad High Court held as follows:
The revisional power of this Court under Sections 397 and 401 Code of Criminal Procedure, is a kind of supervisory jurisdiction in order to
prevent miscarriage of justice arising from the misconception of law or irregularity of procedure committed by the subordinate Courts. These two
sections do not confer unfettered jurisdiction on this Court for reappraisal of evidence. In fact, the revisional power of this Court is to see that
justice is done in accordance with the recognised rules of criminal jurisprudence and the subordinate Courts do not exceed their jurisdiction or
abuse their powers vested in them under the Code of Criminal Procedure.
(v) The High Court of Rajasthan, in Bhanwarlal Vs. State of Rajasthan, would observe as follows:
A close scrutiny of the judgments rendered by both the learned courts below reveal that the finding guilt recorded against the accused Petitioner is
based on the proper appreciation of the oral and documentary evidence on record Both the courts below have recorded a concurrent finding of
guilt against the accused Petitioner which is based on cogent and convincing reasons which I am in full agreement. In fact it is not the practice of
this Court to reappreciates the evidence for purpose of examining whether the finding of fact concurrently arrived is correct or not. It is only in rare
and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice only than this Court could interfere with
such finding of fact. Nothing has been brought to my notice by the learned Counsel for the Petitioner that any manifest, illegality or grave and
serious miscarriage of justice in the case in hand has occasioned to him which requires interference with such concurrent finding of guilt recorded
by both the courts below.
In the light of the above legal principle enunciated by the Apex Court, and the various other High Courts and this Court, the question to be
considered is as to whether any case has been made out by the Petitioners/accused, so as to interfere in the findings of fact recorded by both the
Courts below.
Let me consider the gist of the submissions made by learned Counsel appearing for the Petitioners/accused:
There was no motive for the accused persons to attack P.Ws.1 and 2. P.W.13 - Sub-Inspector of Police admits that the said ''Narpani Mandram''
did not make any specific complaint against the Petitioners/accused previously;
In the wound certificate it is mentioned that P.Ws.1 and 2 were attacked by unknown persons, whereas in the F.I.R., the names of the
Petitioners/accused have been mentioned. Though 16 persons are alleged to have attacked P.Ws.1 and 2, only four injuries were found on the
victims, which were also not so serious. P.Ws.1 and 2 sustained only one grievous injury, and the other injuries were simple. There is no evidence
to show as to who caused that grievous injury. Though Aruval was allegedly used, in the wound certificate, it is mentioned that they were attacked
only with ''thadi and hands'':
There was no reason as to why dying declaration was not recorded. P.W.12-Police Constable attached to outpost police station, who obtained
Ex.P1 statement from P.W.1, while he was in a serious condition; did not choose to get it attested by any of the duty Doctor;
There is an inconsistency with reference to the place of occurrence, between the contents in the wound certificate and the evidence of P.Ws.1 and
2;
No person from the locality was examined as a witness. P.Ws.3 and 9 are not independent witnesses, and they are related to P.Ws.1 and 2. In the
F.I.R., the name of one Karthikeyan was shown as witnesses, but he was not examined in Court;
There was no specific overact attributed against A-1 in the F.I.R., but the overt-act against him was subsequently spoken to by the witnesses in the
evidence;
Even assuming that the alleged incident was true, there cannot be any intention for the accused person to murder the witnesses P.Ws.1 and 2,
because after the attack P.Ws.1 and 2 were thrown out of the van, near the village;
Since A-3 to A-9 have been acquitted by the trial Court, as they have been falsely implicated, A-1 and A-2 should have also been acquitted on
the same ground.
These submissions have been repelled by the learned Government Advocate, representing the State, and by Mr. Suresh, learned Counsel for
the Petitioner in Crl. R.C. Nos. 46 and 47 of 1994.
Learned Counsel for the Petitioners/accused in support of their submission, cited several reported decisions, which are as follows:
(i) Balaka Singh and Ors. v. State of Punjab 1976 ML.J. (Cri.) 339
(ii) Mohanlal Gangaram Gehani v. State of Maharashtra 1982 S.C.C (Cri.) 334
(iii) Karuppusamy and Anr. v. State 1987 L.W. (Cri.) 387
(iv) B.N. Singh and Ors. v. State of Gujarat and Ors. 1990 S.C.C. (Cri.) 283
(v) Kundan Singh Vs. State of Punjab,
(vi) State of Maharashtra Vs. Mohd. Yakub and Others,
(vii) Jai Narain Mishra and Others Vs. State of Bihar,
I have gone through the judgments of Courts below and depositions, apart from the decisions cited by both the Counsel, and carefully
considered the submissions made by the respective counsel.
On perusal of the judgments of Courts below, I could see that the evidence of P.Ws.1, 2, 3, 6, 9 and 14 had been thoroughly considered and
the following findings have been arrived at:
(i) Exs.P17 to P20 would reveal that ""Narpani Mandram"" gave complaints to several authorities, against A-1, A-2 and others along with one
Duraisamy, former M.L.C., indulging in the business of illicit liquor.
On the side of the accused, Exs.D1 to D7 have been marked, to show that they only gave complaints against the members of ''Nalluthavi Narpani
Mandram'', alleging that they indulged in manufacturing of illicit liquor. In the statement u/s 313 Code of Criminal Procedure, also, the accused
admitted that A-1 took an arrack shop in Government auction, and that the prosecution witnesses in this case, were disturbing his profession, and
that they gave complaints against these witnesses to the police. This would show that the accused had grievance or motive against P.Ws.1 and 2,
for these reasons.
(ii) P.Ws.1 and 2 are the injured eye witnesses. P.W.3 who was one of the passengers in the bus, is also an eye witness. P.W.5 is the doctor who
treated the injured. The evidence of these witnesses are cogent, consistent and corroborating with each other.
(iii) P.W.12, Grade I Police Constable, attached to out-post police station recorded the statement-Ex.P1, from P.W.1 and on that basis a case
was registered for the offence u/s 307 I.P.C., at 4:45 P.M. and Ex-P1, statement of P.W.1 and Ex.P13-printed F.I.R., have been reached the
concerned Magistrate at 9:00 P.M, on the same day. In the said F.I.R., the names of A-1 and A-2 have been mentioned, out of 16 accused.
(iv) The acquittal of A-3 to A-9 is on the ground that though in the F.I.R., P.W.1 has stated that he did not know the names of other accused and
he would state that he could identify them, no identification parade was conducted Moreover, during the course of investigation alone the police
officer recorded the names of the other accused. So, the evidence relating to other accused, viz., A-3 to A-9 is not sufficient and acceptable, and
so they have been acquitted. But the said ground of acquittal of A-3 to A-9 would not be applicable to A-1 and A-2.
(v) There is no inconsistency with reference to the place of occurrence, between the contents in wound certificate and the evidence of P.Ws.1 and
It is the case of prosecution, that from one place to another, bus was chased by the accused in a motor-bike and a van, and when the bus
reached Bharathi Nagar Christian Colony, the motor-bike over-took the bus and made the bus to stop, where the first attack was taken place, and
some time thereafter P.Ws.1 and 2 were taken in the accused van, and beaten by the accused and some distance away from the place of first
attack, P.Ws.1 and 2 were thrown out of the van. Therefore, the reference in the wound certificate would only indicate the starting point, but the
actual attack took place only in the place as referred to in Ex.P1 statement So, this cannot be taken as an inconsistency with reference to the place
of occurrence and this would not in any way affect the case of prosecution.
(vi) It is a settled proposition of law, that to constitute an offence of attempt to murder, no injury need to be caused to the victim. However, this is
a case, where the accused persons armed with dangerous weapons, chased the bus with full of passengers, in a motor-bike and a van in a broad
day light, and made the bus to stop, got into the same and attacked the P.Ws.1 and 2, by creating a scare in the mind of general public, who ran
away from the scene of occurrence. Thereafter also, the victims were taken by the accused in their van for further attack and since the accused
thought that the victims were already dead, they were thrown out of the van, while going near another village. To sustain conviction u/s 307 I.P.C.,
the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait
armed with dangerous weapons or declarations made by him that the victim would be killed. This intention is not gatherable merely from the
seriousness of resultant injury. In the light of the above principle laid down in the decision reported in AIR 1965 S.C.84, it can be concluded that
A-1 and A-2 came for the purpose of causing death of P.Ws.1 and 2. That was the reason, why they were attacked in the bus, and then brought
to the van for further attack, and only when P.Ws.1 and 2 pretended, as if they died, the accused threw them from the van. Moreover, while
attacking them, the accused also said that So the offence punishable u/s 307 I.P.C. is made against A-1 and A-2.
(v) Though the name of one Karthikeyan, is mentioned in the F.I.R., he has not been examined as a witness before Court. In this case, the other
persons whose names mentioned in the F.I.R., have been examined. P.Ws.1 and 2, the victims, P.Ws.3 and 9, the other witnesses to the
occurrence, narrated the incident in a cogent manner. The Supreme Court has held in number of cases, that the prosecution is not bound to call all
the witnesses, who are all stated to be the witnesses to the occurrence, and where a number of persons have seen the occurrence, no provision of
law enjoins a duty on the prosecution to examine all of them before Court. Therefore, the prosecution is having the discretion to select witnesses
for examination. As such, non-examination of Karthikeyan, would not affect the case of the prosecution.
(vi) P.W.6, who helped P.Ws.1 and 2 by providing water, immediately went to P.W.13 and informed this incident, and thereafter P.W.14 came
and arranged for taxi, for taking them to the hospital. The evidence relating to these facts, let in by P.Ws.6 and 14, would corroborate the evidence
of P.Ws.1 and 2.
On the basis of these findings, both the Courts below came to the concurrent conclusion, that the Petitioners A-1 and A-2 were the culprits,
who attacked the P.Ws.1 and 2 in a broad daylight, in a high-handed manner and in the presence of public.
Very same arguments, which have been made before the trial Court as well as the lower Appellate Court, have been made in this Court in the
Revisions filed by A-1 and A-2, whose names are clearly figured in the F.I.R.
Of course, there is no reference about the weapon-Aruval, in the wound certificate. But the F.I.R., clearly contains all the details, and the
F.I.R., has reached the Magistrate without any delay on the very same date. Much importance could not be given with the wordings in the wound
certificate, since it was prepared by the Doctor, on the basis of the statement of the victims or the persons accompanied the victims, when they
were in a critical condition.
These factual aspects have been thoroughly gone into by both the courts below, and findings has been recorded, that the evidence of
P.Ws.1,2,3,6 and 14 is trustworthy and acceptable, in relation to the overt-acts attributed against A-1 and A-2.
One important aspect which this Court considers with concern, that P.Ws.7 and 8, the driver and conductor of the bus, turned hostile.
Admittedly, on the date of examination of these witnesses, the said Duraisamy, former M.L.C., against whom, the members of ''Narpani
Mandram'' gave complaints to the police, stating that he is indulging in illicit arrack business, was present in the Court, so, as rightly observed by
both the Courts below, P.Ws.7 and 8, out of fear, have not deposed truth before the trial Court.
We are in a civilized society. We are believing the rule of law. It is appreciable on the part of the social organization, like the Mandram in
which the P.Ws.1 and 2 are members, to bring to the notice of police and authorities concerned, whenever illegal acts are being committed by
persons influential in the society as well as in the politics. In fact, the depositions would reveal that the members of the Narpani Mandram, including
P.Ws.1 and 2 were expecting danger at any time at the hands of A-1, A-2 and their associates, who were employed under the said Duraisamy,
former M.L.C.
The high-handed action of chasing the bus in a motor-bike and van, brutally attacking the inmates of the bus in the presence of other
passengers, taking the victim in their van, to finish them once for all, and throwing them from the moving van, would definitely shock the conscience
of the Court. This would show that the Petitioners/accused became courageous due to the backing of the powerful and influential person.
When both the Courts below have held that the conviction has been based on the acceptable evidence adduced by P.Ws.1 and 2, this Court is
not inclined to make a reappreciation of the evidence, in order to arrive at a different conclusion. Therefore, I am unable to accede to anyone of
the contentions urged by both the counsel appearing for the Petitioners/accused, to hold that the findings of fact recorded by Courts below are
perverse or manifestly wrong.
However I feel that the conviction of the A-1 and A-2 u/s 307 I.P.C., (two counts) simplicitor against them may not be correct, since A-l used
''thadi'' and A-2 used ''aruval'' and caused injuries on P.Ws.1 and 2. Following the principles laid down in the citations reported in 1973 L.W.
(Cri.) 110, 1975 L.W. (Cri) 85 and State of Andhra Pradesh Vs. K. Venkata Reddy and Others, the Petitioners in Crl. R.C. Nos. 738 and 739
of 1993 (A-l and A-2) should be convicted for die offence u/s 307 read with 34 I.P.C., since there is evidence for common intention to commit an
offence punishable u/s 307 I.P.C. As already pointed out by the Government Advocated even without framing a charge for the offence u/s 34
I.P.C., this Court can convert the conviction imposed on the Petitioner from Section 307 I.P.C., into Section 307 read with 34 I.P.C., as there
would be not prejudice for this accused. Accordingly, the conviction of the A-1 and A-2 u/s 307 I.P.C., is modified into one u/s 307 read with 34
I.P.C. (two counts).
P.W.1 Kannaiyan @ Rajendran, one of the victim in this case has filed Crl. R.C. Nos. 46 and 47 of 1994, for enhancement of punishment
imposed on the A-1 and A-2 respectively. The trial Court has awarded the sentence of 4 years R.I. for the offence u/s 307 I.P.C. for each count.
But the lower Appellate Court, while confirming the conviction for the said offence, reduced the sentence of four years R.I., into two years R.I., for
each count, merely on the ground that the case was pending for more than three years.
The occurrence had taken place on 1.12.1990, and the trial in S.C. No. 111 of 1991 commenced in the first week of July 1992, and the
judgment of trial Court was delivered on 22-7-1992. Two separate appeals filed by A-1 and A-2 also have been disposed of by the first
Appellate Court on 4-10-1993. So factually it is not correct to say that the case was pending for more than three years. Moreover, mere
pendency of the case for three years would not be a ground for reducing the sentence from 4 years R.I., into 2 years R.I. especially when this
atrocious incident took place in a broad daylight, in the presence of general public.
Now let us have a quick look at the case law available on the subject of enhancement of punishment.
(i) The Apex Court in Kodavandi Moidean alias Baputty Vs. The State of Kerala, has held as follows:
If a substantial punishment has been given for the offence of which a person is found guilty, after taking due regard to all the relevant circumstances
normally there should be no interference by an Appellate Court. On the other hand, interference will be justified when the sentence is manifestly
inadequate or unduly lenient in the particular circumstances of a case. The interference will also be justified when the failure to impose a proper
sentence may result in miscarriage of justice.
(ii) In Nadir Khan Vs. The State (Delhi Administration), , the Apex Court observed thus:
It is true, the new Code has expressly given a right to the State u/s 377, Code of Criminal Procedure, to appeal against inadequacy of sentence
which was not there under the old Code. That, however, does not exclude revisional jurisdiction of the High Court to act suo motu of
enhancements of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court.
(iii) In the decision reported in Bachan Singh and Others Vs. State of Punjab, , in the case of Bachan Singapore and Ors. v. State of Punjab, the
Court held as hereunder:
All the same, we gave an opportunity to the learned Counsel for the accused to advance his arguments on the question of sentence and all that he
was able to argue was that as the accused had undergone a portion of the sentence and, as the offence was committed in 1972, the High Court
was not justified enhancing the sentence. As is obvious, both these arguments are untenable and inconsequential because of the concurrent findings
of the trial Court and the High Court that the accused emerged from the house of accused Bachan Singh as soon as Sarup Singh (deceased)
reached the place of occurrence, shouted that he should be taught a lesson for getting liquor recovered from them and beat him with their
respective weapons.
(iv) The Supreme Court in AIR 1991 8 (SC) , had a further occasion in the subject to observe as follows:
No particular reason has been given by the High Court for awarding such sentence. The Court in fixing the punishment for any particular crime
should take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the
offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be
so grossly and entirely inadequate as to involve a failure of justice.
In view of the above principles laid down by the Apex Court, I feel that the reduction of sentence for the offence u/s 307 I.P.C., from four
years R.I., into two years R.I., by the lower Appellate Court, merely on the ground that the case was pending for three years, may not be a proper
one.
Mr. B. Sriramulu, learned senior Counsel would submit with reference to the enhancement of sentence, that having regard o the fact that a
period of more than six years has elapsed, lenient view may be taken in imposing lesser the sentence. Though, I feel that the sentence imposed by
the trial Court to undergo R.I. for four years appears to be so adequate, taking into consideration, the elapse of more than six years, interest of
justice would be met by imposing a sentence to undergo R.I. for three years for each count u/s 307 read with 34 I.P.C. Therefore while modifying
the conviction u/s 307, I.P.C. into one of Section 307 read with 34 I.P.C. the sentence of 2 years R.I., as reduced by the Sessions Judge from 4
years R.I., as imposed by the trial Court, is enhanced to R.I. for three years, against A-1 and A-2.
In the result, the conviction of A-1 and A-2, the Petitioners in Crl. R.C. Nos. 739 and 738 of 1993, for the offence u/s 307 I.P.C. (two
counts) is modified into one for the offence u/s 307 read with Section 34 I.P.C. (two counts) and the sentence of two years R.I. as reduced by the
lower Appellate Court, for the said offence, is enhanced into three years R.I., for each count, with a direction that the sentences to run
concurrently. Except the above modification, the convictions and sentences imposed on the above Petitioners (A-1 and A-2) in respect of other
offences are confirmed. Accordingly, Crl. R.C. Nos. 46 and 47 of 1994 are allowed, and Crl. R.C. Nos. 738 and 739 of 1993 are dismissed.