HAKKIM Vs STATE TR.DY.SUPDT.OF POLICE
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,SHIVA KIRTI SINGH
Case number: Crl.A. No.-000567-000567 / 2012
Diary number: 11568 / 2009
Advocates: L. K. PANDEY Vs
M. YOGESH KANNA
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