Kerala High Court
Balakrishnan vs State Of Kerala on 27 July, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 27TH DAY OF JULY 2012/5TH SRAVANA 1934
CRL.A.No. 170 of 2009 ( )
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SC.306/2007 of II ADDL.SESSIONS COURT,ERNAKULAM
CP.10/2007 of JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM
APPELLANT(S):
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BALAKRISHNAN
R/AT.DR.VARGHESE MANI, NELIMATTOM, MILLUMPADY BHAGOM
KUTTAMANGALAM VILLAGE, (NADUVIL AMSOM, CHELEVEETIL
THALIPARAMBU TALUK, KANNUR.(AGED 48).
BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.SHAJIN S.HAMEED
RESPONDENT(S):
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STATE OF KERALA
INSPECTOR OF POLICE, KOTHAMANGALAM
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
BY ADV. PUBLIC PROSECUTOR ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR &
P.BHAVADASAN, JJ.
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Criminal Appeal No.170 of 2009-A
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Dated this the 27th day of July 2012 Judgment Sasidharan Nambiar, J.
Can an accused be convicted for an offence under Section 302 of Indian Penal Code independently, in the absence of a charge independently for that offence, when the co-accused were acquitted and the charge was for the offence under Section 302 r/w 34 of Indian Penal Code.
2. The appellant, the first accused in SC No.306/07 on the file of the Sessions Court, Ernakulam, was tried along with two other accused for the offences under Sections 120B, 449 and 302 r/w 34 of Indian Penal Code. The prosecution case was that in furtherance of their common intention to cause the death of Ismail Thankachan, the husband of PW2, Crl.A.170/2009 2 Sulekha and father of PW1 Shebin, the three accused hatched a criminal conspiracy and in furtherance of the common intention and the criminal conspiracy, they trespassed into the house of the deceased Ismail Thankachan, in a three cent colony at Kuttamangalam panchayat, at about 2.30 am on 27.06.2004, inflicted injuries and caused his death and thereby committed the offences. PW1, PW2 and deceased Ismail Thankachan were residing in House No.16/374 of Kavalangad panchayat. Ismail Thankachan had earlier voluntarily caused hurt on the first accused with a dangerous weapon, on 5.4.2004, i.e., two months prior to the date of incident. Crime No.61/04 was registered by PW16, the Assistant Sub Inspector of Police for the offence under Section 324 of Indian Penal Code, under Ext.P18 F.I.R. based on Ext.P17 F.I. statement of the injured first accused. PW17, the Crl.A.170/2009 3 Sub Inspector conducted the investigation and laid Ext.P19 final report on 26.5.2004. On the night of 27.06.2004 PW1, PW2 and deceased Ismail Thankachan slept inside the house after taking dinner as usual. While sleeping, Ismail Thankachan disclosed to PWs 1 and 2 that he had met the first accused on that day and the first accused, in turn, threatened him that he will kill Ismail Thankachan. PW2, along with Ismail Thankachan, were sleeping inside a mosquito net and PW1, aged only 13 years at that time, was sleeping separately near the door. It was a single room house. A portion of the room was being used as kitchen and the remaining portion for sleeping. The door was made of tin sheet. It was being closed by tying with a plastic rope. Hearing the sound of somebody cutting the plastic rope of the door to make forcible entry into the house, PW1 woke Crl.A.170/2009 4 up. Fearing that assailant is entering the house, PW1 hid himself behind a suit case inside the room. PW1 could thus witness the whole incident. The three accused trespassed into the house. They attacked Ismail Thankachan by pulling him out and inflicting injuries with chopper, knife and spanner after spotting him with the aid of a torch light. After ensuring that Ismail Thankachan is no more, the assailants left the place. PW1 and PW2 found that Ismail Thankachan is not breathing. PW1 went to the house of PW3 at about 2.30 am and informed him about the incident. PW3 and others gathered there. PW1 furnished Ext.P1 F.I. Statement at about 9 am. It was recorded by PW17, the Sub Inspector of Police, who prepared Ext.P1(a) F.I.R. and registered Crime No.97/2004 for the offences under Sections 449 and 302 read with Section 34 of Indian Penal Code against the appellant Crl.A.170/2009 5 and two identifiable persons. PW18, the Circle Inspector of Police took over the investigation. He reached the house and prepared Ext.P5 inquest report at about 11 am. He sent the body of Ismail Thankachan for post-mortem examination. PW14, Dr.Vijaykumar, the Assistant Professor of Forensic Medicine, Alappuzha conducted the autopsy and prepared Ext.P15 post-mortem certificate. PW14 found that the death of Ismail Thankachan was caused by the injuries inflicted on his chest and abdomen. PW18 prepared Ext.P2 scene mahazar at about 4 pm. Based on the information gathered, finding that the first accused left to Kannur, his native place, PW18 instructed PW7 to proceed to Kannur and arrest the first accused. PW18, also instructed the C.I of Alancode to apprehend the first accused. By the time PW17 reached Kannur, first accused was Crl.A.170/2009 6 apprehended by Alancode C.I. PW17 went there and obtained custody of the first accused and produced before PW18 on 30.6.2004. First accused arrested him and questioned him under Ext.P13 mahazar. Mos.5 and 6, the dresses worn by the first accused at the time of the incident were seized. On the information furnished by the first accused, PW18 recovered Mo4 torch, Mo1 chopper and the bicycle under Ext.P9 recovery mahazar, in the presence of Pws 10 and 11 from the house of the first accused on 1.7.2004 at 10.30 am. PW18 arrested accused 2 and 3 and also seized Mos.7 to 10 dresses. On the information furnished Mo2 knife and Mo3 spanner were recovered by PW18. The Mos were forwarded for chemical examination and obtained Ext.P29 report.
3. After completing the investigation, PW20 the Crl.A.170/2009 7 successor Circle Inspector laid the charge before Judicial First Class Magistrate, Kothamangalam, who committed the case to Sessions Court, Ernakulam. Learned Additional Sessions Judge to whom the case was made over for trial framed charge for the offences under Section 120B, 449 and 302 read with 34 of Indian Penal Code. All the accused pleaded not guilty. Prosecution examined 20 witnesses, marked 29 exhibits and identified 17 material objects.
4. After closing the prosecution evidence, when accused were questioned under Section 313 of Code of Criminal Procedure, they denied the incriminating evidence and contended that they were not involved in the incident at all. Learned Sessions Judge called upon the accused to enter on their defence and adduce evidence. Accused examined DW1 at that stage.
Crl.A.170/2009 8
5. Learned Sessions Judge, on the evidence, acquitted all the accused for the offences under Section 120B and accused 2 and 3 of all the offences charged, finding that though Pws 1 and 2 identified accused 2 and 3 from the witness box, they did not furnish any identifying marks of accused 2 and 3 when their statements were recorded by PW18 so as to later identify them from the box and no test identification parade was also conducted and in such circumstances, accused 2 and 3 cannot be convicted. Learned Sessions Judge, based on the evidence of Pws 1 and 2 found that it was the appellant, who inflicted the injuries on deceased Ismail Thankachan and caused his death. Though recovery of Mo.1 chopper and Mo2 knife under Ext.P9 recovery mahazar was not relied upon for want of authorship in the information which led to the recovery, in view of Crl.A.170/2009 9 the ocular evidence, learned Sessions Judge found the appellant guilty for the offences under Section 302 of Indian Penal Code independently. He was convicted and sentenced to imprisonment for life and a fine of Rs.25,000/- and in default, simple imprisonment for two years for the offences under Section 302 of Indian Penal Code. He was also convicted and sentenced to rigorous imprisonment for five years and a fine of Rs.5000/- and in default, simple imprisonment for one year for the offences under Section 449 of Indian Penal Code. The conviction and sentence are challenged in the appeal.
6. Learned counsel appearing for the appellant argued that though learned Sessions Judge relied on the evidence of Pws 1 and 2, on the facts and circumstances of the case, their evidence should not have been relied on. It was argued that though PW1 Crl.A.170/2009 10 from the box claimed that he knows the appellant earlier and had given reason for such knowledge, a reading of Ext.P1 F.I.Statement furnished by PW1 shows that he did not name the appellant or disclosed that he identified the appellant as one of the assailants and therefore his identification at a later stage should not have been accepted. The learned counsel also argued that Ext.P1 F.I.Statement was seen recorded only at 9 am, though the evidence of PW17, the S.I shows that he got information before 5.30 am and police party had also reached the scene and in such circumstances, the delay in preparing Ext.P1 F.I.Statement and the FIR is to be viewed seriously. Learned counsel argued that even though Ext.P1 F.I.Statement was prepared at 9 am, it reached the learned Magistrate only at 4.30 pm and the delay was caused to falsely implicate the Crl.A.170/2009 11 appellant. It was argued that appellant was implicated only for the reason that deceased Ismail Thankachan had inflicted injury on the appellant two months earlier though Pws 1 and 2 did not identify the appellant among the assailants on that night. Learned counsel argued that the evidence of PW3 establish that though PW1 informed him about the incident at 2.30 am, he did not disclose to PW3 that his father was murdered by the appellant along with some others and instead, it was only disclosed that somebody entered the house and killed his father. It was argued that if the appellant was known to PW1 earlier and PW1 had identified the appellant, he would not have disclosed to PW3 that somebody committed the murder. Learned counsel therefore argued that the evidence of Pws 1 and 2 that appellant trespassed into the house or inflicted the injuries cannot be relied Crl.A.170/2009 12 on and on mere suspicion, appellant cannot be found guilty. Learned counsel also argued that when the charge was for criminal conspiracy under Section 120B and also for the offences under Section 302 read with Section 34 of Indian Penal Code, and prosecution case is that it was in furtherance of the common intention of the three accused, all the three accused trespassed into the house during night and committed the murder, unless it is proved by the evidence that the fatal injury was inflicted by the appellant, he cannot be convicted for the offences under Section 302 of Indian Penal Code. Learned counsel also argued that from the evidence of Pws 1 and 2, it is not possible to hold that either the injury on the chest or abdomen, which caused death of Ismail Thankachan as proved by the evidence of PW14, was inflicted by the appellant and if those injuries were Crl.A.170/2009 13 inflicted by others, when there is no conviction with the aid of Section 34 of Indian Penal Code, conviction for the independent offence under Section 302 of Indian Penal Code is not sustainable. Learned counsel argued that in any case, when there is no conclusive evidence to prove that any of the injuries were inflicted by the appellant, he cannot be convicted for the offence under Section 302 of IPC and therefore the conviction is not sustainable.
7. Learned counsel relied on the decision of Honourable Supreme Court in Sawal Das V. State of Bihar (AIR 1974 SC 778) and the Division Bench decision of this court in Mathai V. State of Kerala (1982 KHC 167) submitted that when accused 2 and 3 were already acquitted, the conviction of the appellant for the offence under Section 302 independently is unsustainable. Learned counsel Crl.A.170/2009 14 relying on the decision in State of West Bengal V. Vindu Lachmandas Sakhrani (1994 KHC 1315) argued that when there is no charge for the independent offence under Section 302 of Indian Penal Code and the charge is only for the offences under Section 302 read with Section 34 of Indian Penal Code, the conviction is not legal.
8. Learned Public Prosecutor submitted that there is no reason to disbelieve the evidence of Pws 1 and 2, when there is no contradiction in their evidence and they are natural witnesses. It was pointed out that the presence of Pws 1 and 2 inside the house on that night, when Ismail Thankachan was murdered cannot be disputed and the evidence of Pws 1 and 2 establish that they identified the appellant as one among the three who entered the house and also that the appellant had inflicted injuries on the deceased Crl.A.170/2009 15 using the chopper and the learned Sessions Judge rightly relied on their evidence and in such circumstances, the conviction is perfectly legal. Learned Public Prosecutor, relying on the Full Bench decision of this court in Ajayan V. State of Kerala (2011(1) KLT 8) argued that the learned Sessions Judge was not justified in not relying on recovery of the weapons under Section 27 of Evidence Act, for want of authorship in the disclosure made by the appellant, which led to the recovery, and there is no reason to disbelieve the evidence of PW19 that the weapons used for inflicting injuries was recovered on the information furnished by the appellant. Learned Public Prosecutor also argued that learned Sessions Judge did not find that along with the appellant, two other assailants did not enter the house or inflicted the injuries in furtherance of their common intention with Crl.A.170/2009 16 the appellant and accused 2 and 3 were acquitted as the identity of the two other assailants was not established and it is clear from the evidence that appellant, along with two others trespassed into the house and inflicted the injuries on deceased Ismail Thankachan and caused his death. It was argued that in such circumstances, even if the fatal injury was not inflicted by the appellant, but by any of the two other assailants who came along with the appellant, armed with deadly weapons, and inflicted the injuries in furtherance of the common intention with the appellant and hence appellant is equally liable for the offence along with the two other assailants and therefore, conviction of the appellant for the offence under Section 302 of Indian Penal Code is perfectly legal. Learned Public Prosecutor also relied on the decision of Supreme Court in Harshadsingh Crl.A.170/2009 17 Pahelvansingh Thakore V. State of Gujarat (1977 SC 710).
9. The fact that Ismail Thankachan was residing in building No.16/374 of Kavalangad Panchayat along with his wife PW2 and son, then aged 13 years during June, 2004 is not disputed. The fact that PW1, PW2 and deceased Ismail Thankachan were sleeping inside the house on the night of 26.6.2004, as proved by the evidence of Pws 1 and 2, is also not disputed. The fact that Ismail Thankachan sustained injuries inside the house at about 2.30 am on that night, as deposed by Pws 1 and 2, is also not disputed. Even DW1 who was examined by the accused deposed that by about 3.30 am, DW1, a ward member of the Grama panchayat reached there on hearing the incident. Therefore, when the incident occured inside the house, Pws 1 and 2, his wife and son are Crl.A.170/2009 18 definitely the most natural witnesses. It also rules out the possibility of any other person, except the assailants. Ext.P2 scene mahazar with the evidence of Pws 1 and 2 establish that it was a single room house and portion of the room was being used as kitchen and the remaining portion for sleeping and other purposes. Evidence of Pws 1 and 2 establish that deceased used to sleep with PW2 separately under a mosquito net and PW1 used to sleep near the door. The door of the house was made of tin sheets and was being closed by tying with a plastic rope. These aspects were also not disputed at the time of recording the evidence. It was PW1 who lodged Ext.P1 F.I.Statement.
10. True, Ext.P1 F.I.Statement was recorded at 9 am on 27.6.2004 and it reached the learned Magistrate at 4.30 pm on the same day. When the Crl.A.170/2009 19 incident occured at about 2.30 am in the early morning, it cannot be said that there is delay in recording the F.I.Statement as it was recorded at 9 am. True, evidence of PW17, the S.I shows that he got information before 5 am and he had sent police party there. Evidence of PW1 was that he was not there at that time and the F.I.Statement was therefore recorded later. For that reason, we find no reason to disbelieve the genuineness of the version in Ext.P1 or the evidence of Pws 1 and 2. Evidence of PW1 is fully corroborated by his version in Ext.P1 F.I.Statement. Evidence of PW2, the mother also corroborates the evidence of PW1. We have meticulously scrutinized the evidence of Pws 1 and 2 and find no material contradiction.
11. True, PW1 in Ext.P1 has elaborately stated the entire incident, which may cast some doubt about Crl.A.170/2009 20 the embellishment at that time. But that embellishment cannot be with regard to the details of the assailant or the details of the incident. Though learned counsel appearing for the appellant vehemently argued that as the overt act committed by the three accused were not specifically stated as committed by the first accused and if first accused was known to PW1 earlier, that will not be the case, on going through Ext.P1 it is clear that appellant was named in Ext.P1 itself. Though the overt act committed by the appellant was not specifically mentioned in Ext.P1, while describing the details of the incident, the fact that PW1 did not disclose to PW3 that his father was attacked by the appellant, who was known to him, with two others is not a ground to disbelieve the evidence of PW1 as at that point of time, PW1 might not have realised the Crl.A.170/2009 21 importance of naming the assailants. The mental condition of a child aged 13 years, in whose presence his father was brutally attacked and murdered, just minutes earlier is to be borne in mind while appreciating the evidence of PW3 that PW1 did not disclose him the identity of the assailants. On appreciating the evidence of Pws 1 and 2, we are in agreement with the finding of learned Sessions Judge that their evidence is trustworthy, credible and reliable.
12. True, the evidence of PW1 and PW2 do not establish, which of the injuries were inflicted by the appellant and which of the injuries were inflicted by the two others. The evidence of Pws 1 and 2 establish that appellant was armed with a chopper and one of the other assailants was armed with a knife and the other, with a spanner and they were having a torch Crl.A.170/2009 22 light and the torch light was flashed to enable them to locate and attack the deceased, Ismail Thankachan. In such circumstances, it is not possible for either PW1 or PW2 who witnessed the incident, to point out which of the injury was inflicted by the appellant and which were inflicted by the two other assailants. But from the evidence, it is absolutely clear that appellant along with two others trespassed into the house after cutting the rope which tied the door to make forcible entry into the house and thereafter located the deceased who was sleeping with PW2 and inflicted the injuries with chopper, knife and spanner.
13. The evidence of PW14, the Doctor with Ext.P15 Post mortem certificate establish that PW14 conducted the autopsy between 10.30 am and 12.45 pm on 28.6.2004 at the Medical College Hospital and he found 25 ante mortem injuries. Injury Nos. 10, 11, Crl.A.170/2009 23 15 and 16 show that those injuries were inflicted on the chest and the abdomen and are sufficient in the ordinary course of nature to cause the death, though learned Public Prosecutor omitted to bring out this relevant aspect while PW14 was examined and the learned Sessions Judge also omitted to ask this particular question. The description of the injuries as deposed by PW14 and shown in Ext.P10, P11, P15 and P16 read:-
"1. Incised wound 4.5 x 0.5 x 4 on right side of face oblique lower pointed end in the midline just below nose, upper outer end 2.5 cm below lower eye lid. Injury directed backwards, downwards and to right by fracturing the maxilla and entering the sinus.
2. Incised wound bone deep 2.5 x0.2 cm left side of forehead, transverse front end 2.5 cm above eye brow and 7 cm to the left of midline.
3. Incised wound 6 x 1 x1.5 cm let side of head cutting the pinna of ear transverse front end just below tragus of ear. Contusion of temporalis muscle seen on dissection 7x 3 around the Crl.A.170/2009 24 injury.
4. Incised wound 3 x 1 cm on left side of head, bone deep, 1 cm above injury No.3.
5. Abrade contusion as contuation of injury No.4 6x 0.5 cm left side of face front end 7.5.cm to the left of midline.
6. Incised wound 10 x 2 x 4 cm over left side and back of head, transverse front end 7 cm above root of neck and back end in the midline and 4.5 cm below occipital protrubervance. The muscle trapezius was cut.
7. Incised wound 2.5 x 2 x 0.2 cm back of neck transverse in midline.
8. Contusion 5 x 2.5 cm back of right side of chest transverse 4 cm to the right of midline and 5 cm below top of shoulder.
9. Abrasion 2.5 x 1 cm on top of left shoulder 20 cm to the left of midline.
10. Incised penetrating wound 7 x 2.5 x 6 cm transverse on outer aspect of chest 23 cm below arm pit. The wound was communicating to abdominal cavity, back end appeared sharp. The 10th ribs was cut 5 x 0.5 cm. The spleen was cut 3 x 0.5 x 0.5 cm peritoneal cavity contained 60 ml of fluid blood.
11. Incised penetrating wound 3 x 1 x 2 cm on front if left side of chest, oblique, inner upper end 2.5 cm below coller bone and 3 cm to the left of midline Crl.A.170/2009 25 inner end sharp. The wound entered the chest cavity by cuting 2nd costal cartilage injury pericardium. Pericardinal sac contained 100 ml of blood stained fluid. Left chest cavity contained 240 ml of fluid blood.
12. Incised wound 3 x 1 x 1.5 cm below injury No.11 inner end was pointed.
13. Abraded contusion 2 x 0.2 cm left side of neck, oblique 8 cm above collar bone, 5 cm to the left of midline.
14. Incised wound 3 x 1 cm bone deep on right side of root of neck just above collar bone lower inner end in midline, inner end pointed.
15. Incised penetrating wound 4 x 1 x 5 cm in front of right side of chest oblique lower inner end 2.5 cm to the right of midline. The wound entered the chest cavity by cuting second rib at coastal cartilage with incised wound 1 x 0.5 x 2 cm. Right lung collapsed. Right chest cavity contained 300 ml of fluid blood.
16. Incised wound 2.5 x 1.5 cm right side of chest lower inner end 1 cm to the right of mid line and just to the right of xiphisterncim. The Diaphragm and upper part of right lobe of liver was cut 1 x 0.1 x 1 cm.
17. Abrasion 2 x 0.2 cm on left side of lower abdomen 9 cm above groin.
18. Superficial incisded wound 16 x 1.5 cm on outer aspect of left thigh oblique upper front end 21 cm below groin 3.5 Crl.A.170/2009 26 cm behind front end for 6 cm the wound was muscle deep.
19. Abrasion 2 x 0.1 cm outer aspect left knee.
20. 'U' shaped cut injury 18 x 4 cm, muscle deep inner aspect of left foream. 17 cm above writs. Muscles, blood vessels of front of fore arm cut.
21. Cut injury 9 x 4 cm back of left arm 31 cm below top of shoulder. The lower end.
22. Incisded 5 x 2 cm bone deep on back and outer aspect of right forearm 2 cm above wrist.
23. Cut injury 7 x 3 x 2.5 cm inner aspect of right wrist. The extensor tendons of inner two fingers and carpal bones beneath this finger cut.
24. Cut injury 2.5 x 1.5 cm splitting the tip of left thumb obliquely involving the diotal phalanx.
25. Superficial cut injury 0.5 x 0.1 cm inner aspect of right middle finger involving diotal and middle phalamx".
14. From the nature of the injuries it is absolutely clear that those injuries 10, 11, 14, 15 and 16, are independently sufficient in the ordinary course of nature to cause death and the death of Ismail Crl.A.170/2009 27 Thankachan was caused by those injuries inflicted on his chest and abdomen.
15. Though learned Sessions Judge acquitted accused 2 and 3, the acquittal was only for want of their identity. The evidence of Pws 1 and 2 establish that they had no previous acquaintance with accused 2 and 3. Learned Sessions Judge scrutinized their evidence to find out whether the identification of accused 2 and 3, as the remaining two assailants who trespassed into the house and inflicted injuries on the deceased, could be accepted. Learned Sessions Judge found that neither in Ext.P1 nor in the statements recorded under Section 161 of Code of Criminal Procedure they furnished any material to enable the identification of the remaining two assailants. Learned Sessions Judge also noted that both Pws 1 and 2 identified the accused 2 and 3 for Crl.A.170/2009 28 the first time from the box and they also identified the dresses worn by them on that night. Learned Sessions Judge found that their evidence cannot be relied on and hence acquitted accused 2 and 3. That does not mean that learned Sessions Judge did not accept the evidence of Pws 1 and 2 that appellant, along with two others, trespassed into the house on that night or inflicted injuries. From the evidence of Pws 1 and 2, it is conclusively proved that appellant, along with two other assailants, trespassed into the house on that night and all of them were armed with deadly weapons like chopper, knife and spanner and all of them inflicted injuries on the deceased with the intention to cause his death. In such circumstances, this is a case where there is clear, credible and trustworthy evidence to prove that appellant, along with two other assailants, trespassed into the house Crl.A.170/2009 29 and in furtherance of the common intention, inflicted injuries on the deceased and caused his death. Though identity of the two other assailants were not successfully established at the time of trial, it is clear that appellant, who trespassed into the house, along with two other assailants and all of them were armed with deadly weapons and one among them flashed the torch light to enable the remaining persons to spot the deceased and all of them inflicted injuries on the various parts of the deceased, including vital parts with sufficient force, as is clear from the nature of the injuries inflicted. It is absolutely clear that the common intention of the three assailants including the appellant was to cause the death of Ismail Thankachan. In such circumstances, even if there is no evidence to prove that a particular fatal injury was inflicted by the appellant, as all the fatal injuries were Crl.A.170/2009 30 inflicted in furtherance of the common intention of the appellant and the other two identifiable persons, appellant is definitely equally liable for the act like the two others, who inflicted the fatal injury.
16. Though reliance was placed by the learned counsel on the decision of Division Bench of this court in Mathai's case (supra), the Division Bench in that case, relied on the decision of the Honourable Supreme Court in Sawal Das's case (supra). The learned counsel relied on paragraph 10 where the Division Bench quoted the Supreme Court decision in Sawal Das's case relied on by the learned counsel for the appellant. It was not accepted. The Division Bench held:-
"We are of the opinion that far from strengthening Sri Scaria's argument that A1 Sunny was entitled to an automatic acquittal on the acquittal of A2 Babu, it leads support to the proposition that even though the Crl.A.170/2009 31 charge is under S.302 read with S.34 IPC, if there was acceptable evidence to show that the individual acts of the non acquitted accused are such as to attract S.302 IPC, the non acquitted accused could be convicted for the substantive offence of murder under S.302 IPC. Even in a case where, out of the four accused charged for murder under S.302 read with S.34 IPC, three were acquitted, the Supreme Court has taken the view that it would be legal to convict the sole non acquitted accused provided his participation in the criminal act was established".
The Division Bench further held that the "fact that the prosecution attempted, but failed to rope in A2 Babu also by framing the charge under Section 302 read with Section 34 of Indian Penal Code would not prevent the court in these circumstances from convicting the accused for the criminal act committed individually by him". Relying on the decision in Sawal Das's case it was held that it is a sufficient authority that conviction is possible under such circumstances. Crl.A.170/2009 32 The Division Bench has also taken note of the decision in Harshadsingh's case (supra) and held that even in a case where out of the four accused, charged for murder under Section 302 read with 34 of IPC, three were acquitted, Supreme Court has taken the view that it will be legal to convict the sole non acquitted accused, provided his participation in the criminal act was established.
17. Though reliance was placed by learned counsel in the decision in Vindu Lachmandas Sakhrani's case (supra) where it was observed that when there is no independent charge for the offences under Section 302 of Indian Penal Code and the charge was for the offence under Section 302 read with 34 of Indian Penal Code, the accused cannot be convicted for the independent offence under Section 302, the three Judge Bench decision in Sawal Crl.A.170/2009 33 Das's case(supra) was not referred to. Even if the charge is for the offence under Section 302 read with Section 34 of Indian Penal Code, if there is conclusive evidence to prove the act of inflicting fatal injury by the sole accused, it is legal to convict him for the offence under Section 302 independently, even if the co- accused are acquitted.
18. The Honourable Supreme Court in Sawal Das's case (supra), on the peculiar facts of that case. In that case, three persons were charged for the death of Chanda Devi and two were acquitted and only one among them was convicted. It was held that after the acquittal of Kalawati and Jamuna Prasad for murder, the individual and not the conjoint liability of the appellant is to be established by the prosecution before the appellant could be convicted under Section 302 of Indian Penal Code simpliciter. It was found that Crl.A.170/2009 34 beyond the fact that the said appellant is the husband of the murdered wife, who might be ordinarily expected to take the initiative in teaching her a lesson, especially when Kalawati had invoked his aid, and a possibly natural reluctance of a normal father-in-law to take the initiative or a leading role in such a matter, both of which could be matters of conjecture or presumption only, there is nothing which could fasten or conclusively fix the liability for any particular or separate act of the appellant which may be said to have caused his wife's death. The facts reveal that it was not a case where the two accused were acquitted for the failure to prove their identity. The Honourable Supreme Court in such circumstances found that the remaining accused could be convicted only if there is evidence to prove the charge independently against him.
Crl.A.170/2009 35
19. The question when the act was committed by more than one person in furtherance of their common intention and when the other persons among them were acquitted for want of proof of identity, whether the remaining person could be convicted for the act committed by the unidentified assailants, in furtherance of the common intention, was not considered in Sawal Das's case.
20. The Constitution Bench of the Honourable Supreme Court in Mohan Singh V.State of Punjab (AIR 1963 SC 174) considered this question and held:-
" That inevitably takes us to the question as to whether the appellants can be convicted under Section 302/34. Like S.149,Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.Crl.A.170/2009 36
The essential constituent of the vicarious criminal liability prescribed by S.34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so that existence of a combination of persons sharing the same common intention is one of the features of S.34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of S.34 is difference from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre- arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which S.34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well settled that the common Crl.A.170/2009 37 intention required by S.34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah V. Emperor, 72 Ind App 148 : (AIR 1945 PC
118), common intention within the meaning of S.34 implies a pre-arranged plan, and to convict the accused of an offence applying the section, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".
Analysing the same question, another Bench of the Honourable Supreme Court in Krishna Govind Patil V. State of Maharashtra (AIR 1963 SC 1413) held :-
"It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under Section 302, read with Section 34, of the Indian Penal Code, it Crl.A.170/2009 38 should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of Section 34 on different situations.
(1) A, B, C and D are charged under Section 302 read with Section 34 of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3)A, B,C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others have jointly committed the offence.
As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the named accused is guilty of murder under Section 302, read with Section 34, of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion Crl.A.170/2009 39 and convict one of the named accused if it is satisfied that o prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could do so, it would be making out a new case for the prosecution: it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration".
A two Judge Bench in Jagir Singh V.State of Punjab (AIR 1968 SC 43) observed:-
Crl.A.170/2009 40
" Even if it was not known which particular person or persons gave the fatal blows, once it was found that the murders were committed in furtherance of the common intention of all, each one of all such persons was liable as though the murders had been committed by him alone. Section 34 is intended to meet a case where members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. The principle which the section embodies is the participation in some action with the intention of committing a crime; once such participation is established, Section 34 is at once attracted".
It was then held:-
" 8. In the present case, the Courts below have recorded the clear finding that accused 1 and 5 participated in the offence with four other unknown culprits. Though six named persons were charged with the offence, there was a mistake in the identity of three of the accused and with regard to another accused, the benefit of doubt was given as no independent corroboration was available. But it admits of no doubt that Tarlok Singh was attacked and brutally murdered on April 27, 1965 by six culprits. Accused 1 and 5 were two of the Crl.A.170/2009 41 six culprits who participated in the attack. The murder was committed by six culprits including accused 1 and 5 in furtherance of the common intention of all. Accused 1 and 5 shared the common intention with the four other culprits whose identity has not been established. Though it is not known which particular person or persons gave the fatal blow it is clear that the murder was committed by six culprits including accused 1 and 5 in furtherance of the common intention of all and each of them is liable for the murder as though it had been committed by him alone".
21. That exactly was the question which was later settled by the three Judge Bench in Harsahdsingh's case (supra). As in this case, the remaining accused were acquitted as their identity were not established. The question considered was whether the conviction of the remaining accused could be upheld, when the other accused were already acquitted when the charge was for the offence under Section 302 read with Section 34 of Indian Penal Code. It was held:-
Crl.A.170/2009 42
"10. Counsel also argued that since three out of the four accused have secured acquittal the invocation of Section 34 is impermissible. The flaw in this submission is obvious. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore, it follows that such of them, even if the number dwindled as one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision".
22. It is thus clear that even if some or all other accused are acquitted as their identity could not be established, if along with the remaining accused Crl.A.170/2009 43 participation of plurality of assailants are proved and thus the conjoint culpability is established, the remaining accused could be convicted with the aid of Section 34 of Indian Penal Code, provided the act was committed in furtherance of the common intention. Hence even if the co-accused were acquitted, on that ground the remaining accused cannot be acquitted, if there is evidence to prove his participation along with the other assailants and that the act was committed in furtherance of the common intention, though the identity of the other assailants is not proved.
23. In the light of the legal position, we cannot agree with the vehement argument of Mr.Sasthamangalam Ajith Kumar that when accused 2 and 3 stood acquitted, and the fatal injury was not proved to be inflicted by the appellant, he cannot be Crl.A.170/2009 44 convicted for the offence under Section 302 of Indian Penal Code. The evidence conclusively prove that all the three persons, including the appellant, trespassed into the house in furtherance of their common intention to cause the death of Ismail Thankachan. It is also proved that appellant along with two other assailants inflicted fatal injuries in furtherance of the common intention and caused the death of Ismail Thankachan. Hence appellant is definitely constructively liable for the injuries inflicted by the two others, as they inflicted the injuries in furtherance of their common intention with the appellant. Though learned Sessions Judge convicted the appellant independently for the offence under Section 302 of Indian Penal Code and did not consider the applicability of Section 34 of Indian Penal Code, this court is competent to modify the conviction as it is Crl.A.170/2009 45 proved that appellant along with two other unidentified assailants, trespassed into the house of Pws 1 and 2 and inflicted the injuries on Ismail Thankachan and caused his death. Therefore, appellant is liable to be convicted for the offences under Section 449 as well as 302 read with 34 of Indian Penal Code. We modify the conviction for the offence under Section 302 of Indian Penal Code to one under Section 302 read with 34 of Indian Penal Code. We find no reason to interfere with the sentence in the facts and circumstances of the case. Appeal is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE.
P.BHAVADASAN, JUDGE.
Sta/lgk