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CRL. O.P.NO. 38880 OF 2004

R.BALASUBRAMANIAN, J.

The Petitioner seeks bail in respect of an occurrence that is shown to have taken place on 20.09.2002 for which a crime in Crime No.859/2002 for offences under sections 452, 324 and 307 I.P.C. had come to be registered originally. The counter affidavit of the Investigating Agency shows that the act committed by the accused person comes under sections 307 read with section 120-B, 324 and 307 read with 34 I.P.C. In respect of an occurrence where a person by name Sankararaman was done to death, an offence under section 302 read with section 34 I.P.C. had come to be registered in Crime No.914/2004 on the file of the investigating Police Station at Kancheepuram. In the course of investigation in that case, the petitioner herein came to be arrested on 11.11.2004 and while he was a remand prisoner, the arrest in this case was shown on 23.11.2004. The petitioner’s application for bail in the case of murder was rejected by this court on merits and this court is informed that the petitioner has moved the Hon’ble Supreme Court of India for bail. The Petitioner, in the crime concerned in this case, moved the Court of Sessions, Chennai for bail in Crl.M.P.No. 1175/2004 and it was dismissed on merits. That is how the petitioner is before this court. This court is informed that the Petitioner, while moving the Hon’ble Supreme Court of India for bail in the murder case registered against him, also sought for bail in this crime number as well and the petitioner was directed to move this court first and then make out his grievance before the Apex Court.

2. Mr. M.Sathyanarayana learned counsel appearing for the petitioner would contend that the occurrence in this case is shown to have taken place in the year 2002; the petitioner is not shown as one of the accused in the crime registered in this case; the petitioner is not shown to be the assailant; initially, the crime was not registered under section 120-B I.P.C.; now the petitioner is sought to be made liable as a conspirator; the injured had been discharged; the Petitioner’s involvement, according to the prosecution, is shown to have come to light on the arrest of the other accused in the murder case in the year 2004; the materials stated to have been collected from the mouth of the other accused arrested in the murder case would not constitute legal evidence and therefore it cannot be made use of against the petitioner; the judicial confession stated to have been given by one of the arrested accused in the murder case had since been retracted ; therefore it cannot also be pressed into service against the petitioner to connect him with this crime and therefore this court could consider releasing the petitioner on bail on any condition that this court may deem fit and proper. Mr. K.T.S.Tulsi learned senior Counsel appearing for the State would submit that the materials so far collected by the investigating Agency, when persons were arrested in the murder crime, and the materials collected during investigation in this crime uptill now show the involvement of the petitioner as a lead conspirator. Injuries are shown to have been caused not only to Radhakrishnan but also to his wife and their servant. There are enough materials to indicate that the intention of the conspirators was to kill Radhakrishnan. The weapons shown to have been used at the time of assault and the words stated to have been uttered namely “kill” by the actual assailants establish the intention beyond all reasonable doubt. Since in the act committed pursuant to the conspiracy injuries have been inflicted, the second limb of section 307 I.P.C. would stand attracted, in which event, the petitioner is liable to be punished with life imprisonment. There are reasonable ground to believe that the petitioner is guilty of such an offence and therefore the restriction contained in section 437 (1) (i) of the Code of Criminal Procedure would come in the way of this court granting bail. In the Judicial confession of one of the arrested accused in the murder case, the conspiracy hatched by the Petitioner to eliminate injured Radhakrishnan once for all has come to light. Conspiracy is a substantive offence by itself and as such punishable. The Petitioner, as a conspirator, would be held responsible for all acts done pursuant to the conspiracy. Even assuming that the assailants exceeded the authority or overshooted the offence conspired to be committed, yet the petitioner must be held responsible for all acts done by the conspirators pursuant to the conspiracy. Mr. K.T.S. Tulsi learned senior counsel cited before me a number of judgements of the Hon’ble Supreme Court of India explaining the scope of “criminal conspiracy” and how each and every conspirator could be held responsible for all acts done pursuant to conspiracy. In answer to this, Mr. M.Sathyanarayana learned counsel appearing for the petitioner would submit that to attract the restriction contained in section 437 (1) (i) of the Code, the offence, which the arrested person is accused of committing, must be punishable with death or life imprisonment. In other words, when there is no scope for the court to award any punishment other than life imprisonment or death, then only the restriction contained under section 437(1) (i) of the Code would come into operation. In this case for the offence under section 307 I.P.C. assuming the Petitioner is guilty of such an offence, no minimum sentence of life imprisonment is prescribed and therefore the requirements of section 437(1) (i) of the Code need not be taken into account. Learned Counsel would state that on a conviction for an offence under Section 307 I.P.C., the court has several options in sentencing the convicted person.

3. I applied my mind to the various materials made available. There cannot be any dispute that on 20.09.2002, Radhakrishnan, his wife and their servant came to be attacked with the deadly weapons. The statements recorded from injured witnesses show that there were two assailants and of them uttered the word “kill” before Radhakrishnan was attacked by the other assailants followed by the attacks on Radhakrishnan’s wife and their servant. The prosecution relies upon the judicial confession of a person by name Kathiravan (accused in the murder case), which took place on 03.09.2004. The said Kathiravan had retracted his judicial confession. How far the retracted judicial confession could be acted upon, is a matter which would be outside the realm of consideration at this stage of considering the bail application. There cannot be any doubt that judicial confession is in the nature of legal evidence. As already stated, whether it should be accepted or not to be accepted, would be taken up for decision only at the time of trial. Therefore this court is inclined to take the retracted judicial confession into account to decide the case for bail. In addition to the above, two more witnesses have been examined during investigation is more or less on the similar lines. The judicial confession of Kathiravan is in Tamil. I extract hereunder the relevant portion in that confession statement in English:

“In July 2002 when myself and my boss came to Kancheepuram, the pontiff (petitioner) told my boss that Radhakrishnan (Injured No.1) residing at Mandaveli writes anonymous letters about the pontiff and the mutt, which makes him have sleepless nights and therefore, by engaging a person, he must be threatened by giving blows”.

The exact words in Tamil are us under:

………………………………………………………………………………….
……………………………………………………………………………….
………………………………………………………………………………… .
……………………………………………………………………………….

The author of the confession namely, Kathiravan, states that at that time the members of the conspiracy are the petitioner, the author himself, his boss Appu, Ravisubramaniam and Sundaresan ( a Manager of the Mutt). The confession also shows that the pontiff assured to send a photograph of Radhakrishnan and his address through Ravisubramanian and whenever thereafter the author of the Ravisubramaniam and whenever thereafter the author of the confession and his boss met the pontiff, he was enquring about Radhakrishnan’s business. As already stated, the occurrence in this case was on 20.9.2002. The other two witnesses, who speak about the conspiracy and who have been examined during investigation would state that they overheard the conspiracy and they found the presence of the above referred to persons at that time of conspiracy.

4. Therefore prima facie there is legal evidence to show that there was a conspiracy to commit an offence. The question that follows is, what is the offence, which was conspired to be committed namely, whether it is a grave offence under section 307 I.P.C or any offence lesser in gravity than the earlier referred to one ? As rightly contended by Mr.K.T.S Tulsi learned senior counsel appearing for the state, the conspirator would be held responsible for all acts done by the other conspirators. Judgments brought to my notice by the learned senior counsel for the state that the said liability is not an absolute liability and it all depends upon the facts of each case. In (2001) 7 SSC pg.596 (ferozyddin Bashiruddin Vs State of Kerala) it is stated as hereunder :

“25. Conspiracy is not only a substantive crime, it also
serves as a basis for holding one person liable for the
crimes of others in cases where application of the usual
doctrines of complicity would not render that person
liable. Thus one who enters into a conspiratorial
relationship is liable for every reasonably foreseeable
crime committed by every other member of the conspiracy
in furtherance of its objectives, whether or not he knew
of the crimes or aided in their commission”

Mr.M.Sathyanarayana learned counsel for the petitioner also brought to my notice a judgement of the Hon’ble supreme court of India in the case reported in 1955 1 scc pg.142 (P.K.Narayanan Vs State of Kerala) wherein also it has been held as follows :

“Even if some acts are proved to have been committed it must
be clear that they were so committed in pursuance of an
agreement made between the accused who were parties to
the alleged conspiracy. Inferences from such proved
circumstances regarding the guilt may be drawn only when
such circumstances are incapable of any other reasonable
explanation”.

“An offence of conspiracy cannot be deemed to have been
established on mere suspicion and surmises or inferences
which are not supported by cogent evidence”.

It is also a settled position in law that conspiracy can be established by direct evidence or by drawing legal inferences from established facts. The question therefore is, whether the actual act committed by the assailants in the month of September 2002 pursuant to the conspiracy stated to have been hatched sometime in July 2002 and in the context of the exact command stated to have been given by the petitioner in that conspiracy (extracted earlier), the court has to see whether the petitioner herein would have reasonably foreseen the crime actually committed by the assailants in the case pursuant to the conspiracy. Holding the conspirator responsible for all acts done pursuant to the conspiracy, even though there may be sometimes misfire or overshooting by some of the conspirators, has to be decided from the above referred to settled principle of law. Going by the legal materials available on record and the settled position in law, I am of the opinion that the question as to whether the petitioner, as a conspirator, could have every possibility to reasonably foresee the actual act performed by the assailants in this case referred to above, has to be decided only on evidence by the court. Most of the arrested accused in this crime are the arrested accused in the murder case. The actual assailants in this case at the time of arrest are stated to have told the police about the words uttered at the time of attack and the manner in which the act was performed. It is to be noted that it is only a statement made to the police by an arrested person. Learned senior counsel appearing for the State brought to my notice a number of judgments of the Hon’ble Supreme Court of India to contend that to constitute an offence under section 307 I.P.C. infliction of an injury is not necessary and there is no requirement of law that injury caused would, in the ordinary course of nature, be fatal. In my opinion, those issues do not arise for consideration at this stage of considering the bail application. Learned senior counsel appearing for the state, relying upon the judgment of the Hon’ble Supreme Court of India in the case reported in 2001 SCC Crl.Pg.674 (Prahlad Singh Bhati Vs. NCT, Delhi), which I have followed in my order dated 08.12.2004 in Crl.O.P.No.36748/2004, submitted that at this stage the court would not look for materials for conviction but only for sufficiency of materials to proceed with the case.

5. On the totality of the materials noted by me, there is a lingering doubt in my mind as to whether the conspiracy stated to have been hatched by the petitioner is to commit an offence falling under the first limb or the second limb of section 307 I.P.C. (grave offence) or could be act of conspiracy be taken to mean into commit a crime of a lesser gravity namely, to cost injuries alone. This conclusion of mine enables this court to release the petitioner on bail. If that is so, in my opinion the requirement of section 437 (1) (I) of the Code would not get attracted to the case on hand.

6. Accordingly, the pertitioner is released on bail on he, executing a bond for a sum of Rs.25000/- (Rupess twenty five thousand only) together with two sureties each for a like sum to the satisfaction of the learned. 23rd Metropolitan Magistrate, Saidapet, Chennai.

Vs/ 03.01.2005

Vs/

R.BALASUBRAMANIAN. J.

CRL.O.P.NO.38880 0F 2004.