Unknown vs By Advs.Sri.P.Vijaya Bhanu (Sr.) on 26 November, 2012

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Kerala High Court

Unknown vs By Advs.Sri.P.Vijaya Bhanu (Sr.) on 26 November, 2012

These appeals are filed by accused 1 to 3 in SC No.55/2012 by which all the accused were convicted and sentenced to undergo imprisonment for life for offence u/s 302, r/w S.34 of I.P.C. The first accused is sentenced to pay a fine of `50,000/- and accused 2 and 3 `25,000/- each. On failure to pay fine amount, the accused were to suffer simple imprisonment for four months. The accused are also found guilty and sentenced to undergo imprisonment for one month for the offence u/s 341 of I.P.C. which was to run concurrently along with the sentence for the offence u/s

302.

2. The prosecution allege that the accused with the common intention of committing murder of Rajesh Krishnan (deceased) obstructed him while he was driving his motorcycle. The accused persons also came in another motorcycle driven by the 3 rd Crl.Appeal Nos.37, 38 and 160/2013 -:2:- accused, accused 1 and 2 being pillion riders. The accused demanded money from the victim. When he refused to pay the money, it is alleged that the accused caused grievous hurt to the victim. Accused 1 and 2 kicked down the victim from his motorbike. The 3rd accused slapped him on his face. The 2 nd accused fisted him on his back and the first accused stabbed him on his stomach with a knife causing fatal injury. Thereafter, accused 2 and 3 lifted the motor cycle of the victim and it was forcefully thrown to the ground. The victim himself proceeded in an autorickshaw to the hospital and on the way, it had a break down. Somebody called an ambulance and he was taken to the Medical College hospital. Before he reached the hospital, he died.

3. To prove the prosecution case, they examined PW1 to PW31 and marked Exts.P1 to P37. MO1 to MO20 were the material objects which were identified.

4. The Court below having placed reliance upon the evidence of an eye witness PW2 came to a finding that the prosecution had proved beyond reasonable doubt the crime of murder. The evidence of PW2 was corroborated by the scientific Crl.Appeal Nos.37, 38 and 160/2013 -:3:- evidence viz., the blood stained clothes of the accused and the blood stains in MO3 knife, which was the murder weapon. MO3 knife was recovered based on a disclosure statement of the first accused. The Doctor who conducted postmortem reported that the single injury in the abdomen of the deceased was the cause of death. It is also found that though first accused alone had inflicted a stab injury on the deceased, which was the cause of death, accused 2 and 3 had the common intention of committing the murder and therefore they are also responsible for the crime and found to be guilty.

5. Learned senior counsel appearing for the appellants, accused 1 and 3, argued that there is substantial infirmity in the evidence adduced by the prosecution. Most of the witnesses had turned hostile and the prosecution was able to adduce evidence of a sole eye witness which is not corroborated by any other proven fact. It is argued that there is delay in registering the First Information Report, the third accused has not been properly identified and the prosecution could not conduct any Test Identification Parade. As far as the third accused is concerned, Crl.Appeal Nos.37, 38 and 160/2013 -:4:- PW2 had no previous acquaintance with him and he could not mention any identifying features. He was shown by the police in the police station and therefore the identification of the third accused itself is not proved. He placed reliance upon judgment of the Apex Court in Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839). In that case, the Apex Court observed that when the witness admits that he did not know the accused before the occurrence and when the accused was shown to him by the police at the police station, in the absence of conducting a Test Identification Parade to test the power of identification of the witness, evidence of such witness becomes absolutely valueless on the question of identification before Court and in which event the appellant is entitled for acquittal. He also relied upon another judgment in Ganpat Singh and Others v. State of Rajasthan [(1997) 11 SCC 565] wherein a similar view was taken by the Apex Court.

6. He also argued that the Court below completely erred in arriving at a conclusion that the first accused had committed the crime. The argument is two fold. One is that evidence is lacking to Crl.Appeal Nos.37, 38 and 160/2013 -:5:- convict the first accused and assuming that there is evidence, the offence will come only under 304 Part II. It is pointed out that PW24, the Doctor who conducted postmortem had not stated that the injury on the deceased was likely to cause death in the ordinary course. There was only one stab injury. In the absence of any evidence that the said injury was sufficient in the ordinary course to cause death, the accused could not have been punished u/s 302 I.P.C. Learned counsel placed reliance upon judgment of a Division Bench of this Court in Ouseph v. State of Kerala (1983 KLT SN 69) in order to emphasise the point that it is for the prosecution to prove that the injury sustained by the victim is sufficient in the ordinary course of nature to cause death. The report of the Doctor by itself is not a substantive piece of evidence and only the oral testimony can be treated as evidence, which is lacking in the deposition of PW24.

7. Yet another argument raised was that the prosecution was attempting to prove the character of the accused by picturising them as goondas for which PWs 6 to 11 were examined which is inadmissible in evidence u/s 54 of the Crl.Appeal Nos.37, 38 and 160/2013 -:6:- Evidence Act. However, all those witnesses had turned hostile. He placed reliance upon judgment in Ram Lakhan Singh and Others v. State of U.P. [1977 KHC 627 (SC)] to emphasise the argument based on S.54 of the Evidence Act. Learned senior counsel further argued that the evidence of PW25, the Sub Inspector of Police who registered the FIR would show that despite the fact that he received information about the incident at 6.30 p.m, and he had gone to the site and came back at about 7.45 p.m, still, the FIR is prepared only when PW1 had come and given a statement at 8.30 p.m. It is submitted that delay in preparing First Information Report has been deprecated by this Court and reported in Raju v. State of Kerala (2018 (1) KLD

80). Delay in filing FIR will result in substantial manipulations to be incorporated in the FI statement and therefore the prosecution case can even be thrown out on that ground.

8. Finally it was argued by the learned senior counsel that, at any rate, there is no material to indicate that there was a common intention among the accused to commit murder. The reason for commission of the offence is not spoken to by any Crl.Appeal Nos.37, 38 and 160/2013 -:7:- witnesses. That apart, in the 313 questioning, none of the incriminating circumstances had been put to the accused enabling them to explain the matter. It is submitted that the only overt act committed by accused 2 and 3 according to the prosecution was the third accused slapping the deceased and the second accused hitting him on his back. There is no other injury on the body of the victim as per the postmortem certificate and as per the evidence of Doctor who conducted postmortem. Merely for the reason that all of them together came in a motor bike and the victim fell down while he was in his bike does not indicate that 3rd accused also had the common intention to inflict any stab injury on the deceased. Even according to PW2, it was the first accused who had stabbed the deceased. It cannot be said that the other accused had any common intention to commit the said act of murder. Accused 2 and 3 do not have any weapon with them and there is no such case for the prosecution as well. He also relied upon the judgment of the Apex Court reported in State of U.P. v. Jamshed and another [1994 Suppl (1) SCC 610] and Ajay Sharma v. State of Rajasthan [(1999) 1 SCC Crl.Appeal Nos.37, 38 and 160/2013 -:8:- 174]. In Jamshed (supra), the Apex Court held that in an incident where one person causes a fatal injury by firing with a country- made pistol and the other accused caused only a simple injury with a sharp edged weapon, which did not contribute in any manner to the death of victim, it was not safe to convict the person who had caused only a simple injury u/s 302 read with S.34 I.P.C. as he cannot be held to have shared the common intention to commit murder. At best, he could be convicted only for his individual act namely u/s 324. In Ajay Sharma (supra) also, the Apex Court held that in an instance where one of the accused caught hold of the deceased and called upon the other accused to strike him, the other accused immediately took out a kirpan from under his stockings and inflicted two-three blows resulting in the instantaneous death of the deceased, the intention of the appellant/accused was only to strike him and he did not have an intention to commit murder. In that circumstance, it was held that the conviction of the said accused u/s 302 r/w 34 was not sustainable. He was only liable to be convicted u/s 324 I.P.C r/w 110 I.P.C.

Crl.Appeal Nos.37, 38 and 160/2013 -:9:-

9. Yet another judgment relied upon is Sunita Sharma v. State of Delhi [(2016) 15 SCC 551]. That was also a case in which the Apex Court observed that the act of stabbing by the accused leading to death while the other accused was holding the deceased does not appear to be premeditated or to have been committed in concert. That was a case in which the accused were husband and wife. They caught hold of a boy who was the brother of a person who eve-teased their daughter. The mother of the girl who is an accused, caught hold of the hair of the deceased and held him back and hit him on his head with an iron musli while her husband inflicted a chhuri-blow on the front portion of the body. Apex Court found that the prosecution story that the lady could hold back a 25 year old person by clinging to his hair with one arm and holding a musli (a sharp-edged blunt iron weapon) and using the same on the deceased with the other hand cannot be believed and is doubtful and therefore, held that the common intention as required u/s 34 I.P.C. to commit the offence of murder with her husband does not appear to have been established beyond reasonable doubt.

Crl.Appeal Nos.37, 38 and 160/2013 -:10:-

10. Learned counsel Sri.Renjith B.Marar appearing for the 2nd accused while concurring with the arguments raised on behalf of accused 1 and 3 contended that the only overt act he had committed even according to the prosecution was only fisting the deceased on his back. In fact, no injuries were noticed. He did not have the common intention to commit murder. The fact that immediately after the stabbing, they left the place also indicates that they never wanted to stab the deceased and there was no such premeditation or common intention. The first accused was having a knife in his waist which he suddenly took and stabbed the deceased. The said incident by itself proves the fact that there is no common intention and therefore the 2 nd accused was entitled for an acquittal.

11. On the other hand, learned Public Prosecutor submits that the Court below had considered the entire case in the proper perspective. The Court below had properly analysed the evidence adduced in the case and had relied upon the oral testimony of eye witness and other attending circumstances to find the guilt of the accused. It is submitted that the accused had committed a very Crl.Appeal Nos.37, 38 and 160/2013 -:11:- heinous crime and an young man who was riding in his motor bike was stopped in between and stabbed to death. All the three accused were travelling in the same motor bike. It is submitted that, on the very same day, they had attacked several other persons and therefore their conduct prior to the commission of the crime itself was relevant u/s 8 of the Evidence Act and the prosecution was only attempting to prove their prior conduct by examining PW6 to PW11. Unfortunately, all those witnesses turned hostile to the prosecution. It is submitted that without much reason, an young person was stabbed to death. The prosecution had established beyond reasonable doubt the involvement of all the accused. The fact that they came together, they kicked down the deceased from his motor bike, accused 2 and 3 hit him and the first accused stabbed him with a knife was the incident which has been proved. Thereafter, two of them took the motorbike and threw it to the ground. This itself shows the vengeance of all the accused against the deceased and when the Court below had not committed any error in appreciating the evidence involved in the case, in the absence of any perversity, Crl.Appeal Nos.37, 38 and 160/2013 -:12:- this Court need not interfere with the judgment.

12. Learned Public Prosecutor also placed reliance upon the judgment of the Apex Court in Goudappa and others v. State of Karnataka (AIR 2013 SC 1595). The judgment has been relied upon to prove as to how the common intention among the accused has to be considered. Paragraph 16 is relevant, which reads as under:-

b

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