Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.567 OF 2012

Hakkim …Appellant

VERSUS

State Represented by

Deputy Superintendent of Police …Respondent

With

CRIMINAL APPEAL NO.568 OF 2012

Sarfudheen & Anr. …Appellants

VERSUS

State Represented by

Deputy Superintendent of Police …Respondent

&

CRIMINAL APPEAL NO.1410 OF 2011

Samsudheen …Appellant

VERSUS

State Represented by

Deputy Superintendent of Police …Respondent

J U D G M E N T

FAKKIR MOHAMED IBRAHIM KALIFULLA, J.

1.In these appeals preferred by Accused Nos.1 to 4

(hereinafter referred to as ‘A-1, A-2, A-3 and A-4’), the Appellants

herein seek to challenge the judgment passed by the Division

Bench of the High Court of Judicature at Madras. The Division

Crl.A.No.567/2012 with 1 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 2 Bench by the impugned judgment dated 23.07.2008 in Criminal

Appeal No.359 of 2005 confirmed the conviction and sentence

imposed by the learned Sessions Judge in the judgment dated

06.04.2005 in SC No.240 of 2003.

2.Shorn of unnecessary details, the case of the prosecution

was that PW-1 by name Alim George was a resident of Kaliba

Sahib Street in Nagur Town. He was living with his three wives by

name Fatima, Sayeeda (deceased) and Sameema and their

mothers, his daughter Jeni, his son Jaffer Hussain, Rahana sister

of his deceased wife Sayeeda, one of his friends by name

Goodnameshah PW-2 and his nephew Niyaz Ahmad PW-3 were

also living along with him. PW-1 stated to have worked as Imam

in some mosque in Koothanallur before setting up his residence

in Nagur. He also stated to have worked as Principal in the

Melapalayam Arabic college. He has also worked as Imam in a

mosque in Malaysia apart from serving as a teacher in a Madrasa

at Udumalaipet. His guru was stated to be one Sayed Ali Sahib in

Nagur.

3.There were certain allegations against PW-1 to the effect

that he was indulging in certain nefarious activities, namely,

Crl.A.No.567/2012 with 2 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 3 exploiting women folk by drugging them and also thereafter

blackmailing them. At the instance of PW-23, a report appeared

about the nefarious activities in a magazine called “Yevukanai”.

According to the prosecution, the said report provoked the

accused along with three others, two of whom were also

prosecuted before the trial Court which resulted in their

involvement in the present crime alleged against them.

4.It is stated that when PW-1 along with the other residents

was in his house on 26.10.1996 at 4.00 p.m., the door of the

house was pushed open by the Appellants-accused holding

knives in their hands, they entered the house and asked for PW-1

by calling who was ‘George’ and one of the accused placed a

knife on the neck of PW-3 while another accused pulled the

deceased Sayeeda by her hair and yet another person advanced

towards PW-1 while another accused extorted to ‘kill him’. When

the accused attempted to inflict injuries on PW-1, he warded off

the same which resulted in an injury to his forehand. At that point

of time while deceased Sayeeda raised an alarm, the accused

persons caught hold of her hands and legs and inflicted multiple

injuries on her. When PW-4, the mother of the deceased came for

her rescue, she was inflicted with stab injuries in which process

Crl.A.No.567/2012 with 3 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 4 her right hand ring finger got severed. While three of the accused

held the deceased Sayeeda, A-1 stated to have cut her throat

which resulted in her instantaneous death. When PWs-2 and 3

tried to intervene, they were also inflicted with knife injuries.

5.In view of the milieu created, people living in and around

the place of residence of PW-1, gathered around and caught hold

of all the four accused-Appellants. The deceased and the injured

were shifted to the hospital where PW-1’s statement Exhibit P-5

was recorded which was registered as Crime No.464 of 1996 at

6.30 p.m. at Nagur Police Station under Sections 147, 148, 452,

324, 307 and 302, IPC and the express report was forwarded to

the Judicial Magistrate at Nagapattinam and was delivered at

00.10 hours.

6.The accused, who were held by the neighbours, were

beaten by the public and were shifted to the hospital by the

police personnel. It is in the above stated background that the

Appellants were arrested along with the other two accused and

after recording the statements of witnesses, the charge-sheet

came to be filed. Apart from PWs-1 to 4, the injured eye

witnesses related to the deceased, an independent witness PW-5

Crl.A.No.567/2012 with 4 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 5 who was employed on that day for changing the tiles of the roof

of the house of PW-1 was also examined. PW-10 was the post

mortem doctor and Exhibit P-15 is the post mortem certificate.

PW-8 was the doctor who examined the injured eye witnesses

PWs 1 to 4 and Exhibits P-6, P-7, P-8 and P-9 were the

certificates issued by PW-8. M.Os. 2 to 5 were the knives. The

accused Appellants were arrested on 26.10.1996 at 7 p.m. i.e.

on the date of occurrence.

7.PW-1 suffered one grievous injury which is a cut injury at

left forearm. PW-2 suffered one cut injury on the back apart from

one abrasion. PW-3 suffered two simple injuries. PW-4 suffered

six cut injuries, of which injury Nos.1 to 3 were simple and injury

Nos.4 to 6 were grievous. PW-32, the doctor examined the

accused on 27.10.1996 at 4.35 p.m. Exhibits P-40, 41, 42 and 39

were the certificates issued by PW-32 relating to injuries

sustained by A-1 to A-4, respectively. It was recorded by PW-32

to the effect that the accused Appellants informed PW-32 that

they were beaten up by the public. Exhibit P-29 is the FSL report

confirming presence of blood in seven items. Exhibit P-30

disclosed the blood group of deceased as ‘O’ group. It also

revealed that the blood found in one of the knives was

Crl.A.No.567/2012 with 5 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 6 disintegrated. PW-10, in her evidence, stated that the four knives

marked in the case could have caused the injuries sustained by

deceased as well as by other injured persons.

8.In the trial Court, the prosecution examined as many as 34

witnesses apart from marking Exhibits P-1 to P-42. M.Os.1 to 11

the material objects were also placed before the Court. M.Os.2 to

5 were the knives which were used in the crime. M.Os.7 to 11

were the dress worn by the deceased Sayeeda. M.O.6 was the

blood stained cement flooring while M.O.7 was the cement

flooring without blood stain. The trial Court reached the

conclusion that all the charges framed against A-5 and A-6 were

not proved beyond all reasonable doubts and, therefore, they

were acquitted. It also held that the charges framed under

Section 120B IPC against A-1 to A-4, that the charge framed

against A-3 under Section 324, IPC (one count) and the charge

framed against A-4 under Section 326, IPC were not proved. They

were accordingly acquitted of the said charges. It, however,

found all the Appellants-accused guilty of the charges under

Section 449, IPC and A-1 was found guilty of charges under

Section 307, IPC and 302, IPC as well as charge under Section

324, IPC found proved against A-3 and A-4. The Appellants were

Crl.A.No.567/2012 with 6 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 7 sentenced to undergo RI for a period of 5 years for the charge

found proved against them under Section 449, IPC. A-1 was

sentenced to undergo RI for three years for an offence under

Section 307, IPC. A-2 to A-4 were sentenced to undergo three

years RI for the offence under Section 307 read with Section 149,

IPC. A-1 was sentenced to undergo life imprisonment for the

offence under Section 302, IPC and A-2 to A-4 were sentenced to

undergo life imprisonment for the offence under Section 302 read

with Section 109, IPC. A-3 and A-4 were sentenced to undergo six

months RI for the offence under Section 324, IPC.

9.In the light of the long period during which they were in jail

in other cases and since it was pleaded that there was none to

pay any fine on their behalf, the trial Court refrained from

imposing any fine on Appellants-accused. By the impugned

judgment the Division Bench of the High Court having confirmed

the conviction and sentence imposed by the trial Court the

Appellants are before us.

10.We heard Mr. K.T.S. Tulsi and Mr. Ratnakar Dash, learned

Senior Counsel for the Appellants and Mr. Subramonium Prasad,

learned Additional Advocate General for the State. Mr. Tulsi in his

Crl.A.No.567/2012 with 7 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 8 submissions focused mainly on the sentence aspect apparently

finding that the accused Appellants were apprehended at the

crime spot and caught red-handed. We also do not find anything

wrong in the approach of the learned Senior Counsel in making

the submissions as above in the peculiar facts of this case. In

support of his submissions, the learned Senior Counsel pointed

out that while four knives M.Os. 2 to 5 were marked in the case,

only one knife was sent for scientific examination in which though

blood was noted as per Exhibit P-30 the blood found was

disintegrated. The learned Senior Counsel would, therefore,

contend that it will have to be proceeded on the footing that only

one knife was used in the crime. By pointing out the said factor,

learned Senior Counsel contended that it will have a serious

bearing on the charge under Section 109, IPC as well as

invocation of Section 149, IPC could not have been made.

11. The learned Senior Counsel, therefore, contended that the

intention of A-1 who was armed with a knife and the others can

only be attributed with knowledge, in which event, at best the

conviction can be only under Section 304 Part II, IPC and not for

the offences for which they were convicted. To strengthen the

above submission, learned Senior Counsel pointed out that the

Crl.A.No.567/2012 with 8 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 9 injuries found on the body of the deceased under Exhibit P-15

also disclosed that other than the injury on the neck which was

attributed to A-1, there was no other injury on any other vital part

of the body of the deceased. The learned Senior Counsel in his

submissions, therefore, contended that at best the other accused

can only be attributed with the possibility of over enthusiasm and

exaggeration and, therefore, taking the above factors into

account, it should be held that the sentence already suffered

should be held to be sufficient.

12.The learned Senior Counsel contended that the accused

were arrested on 26.10.1996 i.e. on the date of occurrence, that

while A-1 and A-2 were granted bail on 05.06.1997, A-3 and A-4

were granted bail on 26.05.1997. The learned Senior Counsel also

submitted that A-1 and A-2 were subsequently arrested in

connection with the Coimbatore bomb blast case on 28.03.1998

while A-3 and A-4 were arrested on 24.10.1998 and 16.11.1998,

respectively. The learned Senior Counsel contended that while A-

1 was convicted in the Coimbatore bomb blast case for seven

years and he has already suffered the sentence, A-2 was

sentenced to life imprisonment. As far as A-3 is concerned, it was

submitted that he was acquitted in the bomb blast case and no

Crl.A.No.567/2012 with 9 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 10 further appeal was filed against the said acquittal. A-4 was stated

to have been imposed the sentence of 10 years and he is

undergoing the sentence. The learned Senior Counsel, therefore,

reiterated his submission that if the Appellants’ intention to kill

was not there and in the absence of Sections 109 and 149, IPC

being applied, at best, it can only be said that the knowledge of

the Appellants could have been only to the extent of likelihood of

death of the deceased and, therefore, 304 Part II, IPC can only be

applied.

13.Mr. Ratnakar Dash, learned Senior Counsel who appeared

for some of the Appellants submitted that while according to the

case of the prosecution, seven persons were involved in the

crime, only four were caught red handed, that the clothes worn

by the accused were not recovered and sent for serological test

and in the circumstances when PW-1 was not done to death and

the deceased came to be killed, no intention can be attributed to

the killing of the deceased as against the accused. The learned

Senior Counsel, therefore, contended that the offence of murder

cannot be affirmed as confirmed by the learned Sessions Judge

as well as the High Court. Learned Senior Counsel relied upon

the decisions reported in Ankush Shivaji Gaikwad v. State of

Crl.A.No.567/2012 with 10 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 11 Maharashtra - 2013 (6) SCC 770 and Roy Fernandes v. State

of Goa and others - 2012 (3) SCC 221 in support of his

submissions.

14.Mr. Tulsi, learned Senior Counsel appearing for Appellant in

Criminal Appeal No.1410 of 2011 submitted that indisputably he

was a juvenile on the date of occurrence and when the said plea

was raised before the High Court, the High Court declined to

grant the relief even though as a matter of fact it was recorded

that the age of the Appellant on the date of the occurrence was

17 years and 9 months holding that he was not a juvenile under

the provisions of the Juvenile Justice Act of 1986 as per the law

that was prevailing on that date. The learned Senior Counsel

pointed out that having regard to the development of law as held

in the subsequent decisions in Hari Ram v. State of Rajasthan

and another - 2009 (13) SCC 211, Ajay Kumar v. State of

Madhya Pradesh - 2010 (15) SCC 83 and Jitendra Singh alias

Babboo Singh and another v. State of Uttar Pradesh - 2013

(11) SCC 193 even if the conviction of the said Appellant is to be

confirmed, he is entitled to the benefit in the matter of sentence

as provided under the provisions of the Juvenile Justice Act.

Crl.A.No.567/2012 with 11 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 12 15.Mr. Subramonium Prasad, learned Additional Advocate

General for the State in his submissions pointed out that the

contention based on the FSL report on the use of one knife alone

cannot be accepted, inasmuch as, at the time when the accused

were apprehended on the spot all the four knives were recovered

with the aid of mahazar witnesses which were duly placed before

the Court. Learned Additional Advocate General also relied upon

the eye witness account of PWs 1 to 4 who referred to the use of

all the four knives indiscriminately on the spot by the four

accused which evidence was further supported by the various

injuries sustained by those witnesses some of which were

grievous in nature apart from the evidence of the independent

witness PW-5. Learned Additional Advocate General also pointed

out that the deceased having suffered as many as 14 injuries all

over her body, it is futile on the part of the Appellant to contend

that only one knife could have been used which was attributed to

A-1. Learned Additional Advocate General, therefore, submitted

that invoking Section 302 read along with Sections 109 and 149

was rightly and correctly applied for which they were ultimately

convicted. Learned Additional Advocate General contended that

all the accused entered the house of PW-1 fully planned with an

Crl.A.No.567/2012 with 12 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 13 intention to kill, armed with weapons individually and, therefore,

having regard to their involvement in the occurrence in which

one died while two others were seriously injured apart from two

others who suffered minor injuries and, therefore, there is no

scope for any leniency in the matter of sentence.

16.Having heard the respective submissions of the learned

counsel, we are also convinced that there is no scope for

reducing the sentence as was submitted by the learned

Additional Advocate General. As far as the submission made

based on single knife is concerned, as rightly pointed out by

learned Additional Advocate General, it is a case where the

accused were apprehended on the spot and the recovery of the

weapons was also carried out at the time when they were

apprehended. The said factor cannot be disputed in as much as

apart from the eye witness account of injured witnesses PWs-1 to

4, the accused themselves were examined by the doctor PW-32

on 27.10.1996 at 4.35 p.m. The injuries on their bodies were

noted under Exhibits P-39 to 42 and according to PW-32, at that

point of time the accused themselves stated that they were

thrashed by the public which is in tune with the case of the

prosecution.

Crl.A.No.567/2012 with 13 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 14 17.It is also not in dispute that recovered knives were placed

before the trial Court and marked as M.Os.2 to 5. That apart,

PW-10, the post mortem doctor in her certificate Exhibit P-15

confirmed the multiple knife injuries found on the body of the

deceased. While one of the injuries was on the neck which was

attributed to A-1, there were other injuries on the vital parts of

the body as well as other parts numbering 13 and all of them

were incised wounds ranging from 2cm x 1cm to 15cm x 7cm.

Therefore, it is futile on the part of the Appellant to contend that

only one knife was used to cause so many injuries on the body of

the deceased.

18.That apart, according to PW-8, the doctor who examined

PWs-1 to 4 and issued Exhibits P-6 to P-9 certifying the injuries.

Exhibits P-6 to P-9 revealed that PW-1 suffered one grievous

injury, PW-2 suffered one cut injury on the back apart from one

abrasion, PW-3 suffered two simple injuries and PW-4 suffered six

cut injuries of which 1 to 3 were simple and 4 to 6 were grievous.

One of the injuries suffered by PW-4 resulted in severance of her

right hand ring finger. When such extensive injuries were

sustained by the injured eye witnesses, it is too late in the day for

the Appellant to contend and for the Court to accept that only

Crl.A.No.567/2012 with 14 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 15 one knife was used and the placement of the other three knives

could not have been relied upon. The trial Court as well as the

High Court rightly rejected the above submissions as such

overwhelming evidence was available on record to support the

case of the prosecution as regards the use of multiple weapons in

the crime committed by the Appellants.

19. Once the said contention of the Appellants is rejected, the

other co1ntentions, namely, that there was no scope to invoke

Sections 109 and 149, IPC would also fall to the ground. If that is

the outcome of the above discussion, there is no scope to find

fault with the ultimate conclusion of the trial court having

convicted the Appellants for the offences found proved against

them for which the sentence came to be imposed. We, therefore,

do not find any substance in the submission made on behalf of

the Appellants to hold that only Section 304 Part II, IPC can be

applied and a lesser punishment should be imposed. Having

regard to the extensive use of the weapons by the accused in the

process of killing of the deceased and the inflicting of the injuries

on PWs-1 to 4, we do not find any scope to show any concession

in the matter of punishment and consequently the said

submission stands rejected. In the light of our above conclusion,

Crl.A.No.567/2012 with 15 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 16 we do not find any scope to refer to any of the decisions relied

upon for reduction of sentence.

20.As far as the submission made by Mr. K.T.S. Tulsi, learned

Senior Counsel on behalf of the Appellant in Criminal Appeal

No.1410 of 2011 who was A-1 before the trial Court and as rightly

contended by learned Senior Counsel, we do find support in the

records placed before us wherein in the reply filed on behalf of

the State to the application filed for filing additional documents, it

is stated as under in paragraph (vi):

“The High Court observed that as per the contentions

of the petitioner, he was aged 17 years and 9 months

at the time of commission of the offence. It is

pertinent to mention here that the High Court

correctly applied the provisions of the 1986 Act in the

present case, thereby leading to the finding that since

the petitioner has attained the age of 17 years and 9

months on the date of commission of the offence,

hence he was not a juvenile as per the provisions of

the Act of 1986.”

21.Once, therefore, it is shown that the Appellant in Criminal

Appeal No.1410 of 2011, who was A-1, was only 17 years and 9

months on the date of the occurrence, the decision reported in

Ajay Kumar v. State of Madhya Pradesh (supra) applies

wherein in the similar circumstances it was held as under:

Crl.A.No.567/2012 with 16 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 17 “6. Rule 98 of the Juvenile Justice (Care and Protection

of Children) Rules, 2007 (hereinafter referred to as

“the Juvenile Justice Rules, 2007”) provides the

procedure as to how a case of a juvenile who is in

conflict with law should be disposed of. The same

reads as follows:

“98. Disposed off cases of juveniles in

conflict with law- The State Government or as

the case may be the Board may, either suo motu

or on an application made for the purpose,

review the case of a person or a juvenile in

conflict with law, determine his juvenility in

terms of the provisions contained in the Act and

Rule 12 of these Rules and pass an appropriate

order in the interest of the juvenile in conflict

with law under Section 64 of the Act, for the

immediate release of the juvenile in conflict with

law whose period of detention or imprisonment

has exceeded the maximum period provided in

Section 15 of the said Act.

7. In the light of the aforesaid provisions, the maximum

period for which a juvenile could be kept in a special home

is for three years. In the instant case, we are informed that

the appellant who is proved to be a juvenile has undergone

detention for a period of about approximately 14 years. In

that view of the matter, since the appellant herein was a

minor on the date of commission of the offence and has

already undergone more than the maximum period of

detention as provided for under Section 15 of the Juvenile

Justice Act, by following the provisions of Rule 98 of the

Juvenile Justice Rules, 2007 read Section 15 of the Juvenile

Justice Act, we allow the appeal with a direction that the

appellant be released forthwith.”

22.Having regard to the said legal position, the very same

consequences set out in the said decision should apply to the

case of the Appellant in Criminal Appeal No.1410 of 2011 who

Crl.A.No.567/2012 with 17 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011

Page 18 has already suffered more than the maximum period of detention

as provided under the Juvenile Justice Act. The said appellant was

enlarged on bail by this Court’s order dated 18.07.2011.

Therefore, while confirming his conviction as per the judgment

impugned in this appeal, we hold that he is entitled for the

benefit of the provisions of the Juvenile Justice Act and the

sentence already undergone by him shall be sufficient for the

above conviction. Therefore, he shall not be detained any more in

this case unless his detention is warranted in any other case.

Criminal appeal No. 1410 stand disposed of on the above terms.

23.The appeals filed by the other Appellants in Criminal Appeal

No.567 of 2012 by A-4 and Criminal Appeal No.568 of 2012 by A-

2 and A-3 stand dismissed.

.……….…………………………………..J.

[Fakkir Mohamed Ibrahim Kalifulla]

………..…………………………………..J.

[Shiva Kirti Singh]

August 06, 2014

New Delhi.

Crl.A.No.567/2012 with 18 of 18

Crl.A.No.568/2012 &

Crl.A.No.1410/2011