Kerala High Court
Mani vs State Of Kerala on 2 February, 2016
Author: P. Bhavadasan
Bench: P.Bhavadasan, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937
CRL.A.No. 2144 of 2011
-----------------------
AGAINST THE JUDGMENT IN SC 57/2007 of IST ADDL. SESSIONS
COURT,PALAKKAD.
APPELLANT(S)/ACCUSED 1 TO 4:
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1. MANI, AGED 36 YEARS, S/O. VELLA,
MOOCHITHODI VEEDU, ANJUMOORTHI MANGALAM,
VADAKKENCHERRY.
2. RATHNAKUMAR, AGED 30 YEARS, S/O. KITTA,
POOKKATTUPARAMBU VEEDU, ANJUMOORTHI MANGALAM,
VADAKKENCHERRY.
3. PRAVEEN, AGED 30 YEARS, S/O. CHANDRAN,
PRIYA NIVAS, PARUVASSERI, VADAKKENCHERRY.
4. SELVARAJ, AGED 33 YEARS, S/O. THEYAN,
CHOZHIYAMKAD HOUSE, ANJUMOORTHI MANGALAM,
VADAKKENCHERRY.
APPELLANT NO. 3 BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
APPELANT NOS. 1, 2 & 4 BY ADVS. SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT(S)/STATE:
--------------------
STATE OF KERALA, REP. BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
(CRIME NO.489/05 OF VADAKKENCHERRY POLICE STATION,
PALAKKAD DISTRICT).
BY PUBLIC PROSECUTOR SMT. V.H. JASMINE.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02-02-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-Crl.Appeal-No.-2144- - - -V.-JJ-
RAJAP.- BHAVADASAN &
- - -VIJAYARAGHAVAN
- - - -
of 2011
- - - - - - - - - - - - - - -
Dated this the 2nd day of February, 2016.
JUDGMENT
P. Bhavadasan, J.
Seven persons were prosecuted for the offences punishable under Sections 341, 324, 302 and 212 read with Section 34 of Indian Penal Code. Among them, four of the accused, namely, accused Nos. 1 to 4, were found guilty of the offences punishable under Section 302 read with Section 34 of I.P.C. and each of them were separately found guilty of the offence under Section 341 I.P.C. and also under Section 324 I.P.C. read with Section 34 of I.P.C. and convicted for those offenes. Each of them were sentenced to suffer imprisonment for life and to pay fine of Rs.20,000/- with default sentence for the offence under Section 302 read with Section 34 I.P.C. and to undergo simple imprisonment for one month for the offence under Section 341 read with Section 34 I.P.C. Each of Crl.Appeal 2144/2011.
2them were also sentenced to undergo rigorous imprisonment for six months for each of the offence under Section 324 read with Section 34 I.P.C. Sentences were directed to run concurrently. It is also provided that in case the appropriate Government seeks to exercise powers under Sections 432 and 433 of Cr.P.C. as the case may be, the convicts would be entitled to set off as per law.
2. The incident which gave rise to this case occurred on 28.9.2005 at a place in front of Rossy School situate at Mangalam - Chozhiyamkod road. PWs. 2, 3, 10 and 13 along with the eight injured persons in the incident, according to the prosecution, had gathered at Chozhiyamkod junction and on hearing that the BJP activists had created some problems in Chozhiyamkod, decided to go to the place of commotion to find out what exactly had happened there. They then set out at Chozhiyamkod road. As soon as they reached in front of Rossy School, it so happened that the accused namely, accused Nos. 1 to 4 were seen coming on two Crl.Appeal 2144/2011.
3motor bikes from the opposite direction. The prosecution allegation is that no sooner than two groups met, Moni, one of the BJP activist travelling on the motor bike, got down from his bike and exhorting to kill CPM activists, inflicted a stab injury on Soman. Then the assailants attacked the rest of the people and in the process PWs 2, 3, 10, 13 and 4 four others were injured. Even though Soman was taken to hospital, he died on the way and he was brought dead to the hospital. PWs 2, 3, 10 and CW3 were examined by one Dr.Yedupathi, who prepared Exts.P11, 13, 15 and 17 wound certificates. The respective case sheets of PWs 2, 3 and 10 are Exts.P12, P14 and P16. Since Dr.Yedupathi was not available for examination in court, PW14 was examined to prove the above documents. PW9 attended to PW13 who was brought to CHC, Alathur and he prepared Ext.P7 wound certificate. Getting information about the incident, PW12 went to Cresent Hospital and recorded Ext.P2 First Information Statement furnished by PW2.
Crl.Appeal 2144/2011.
4
3. Based on the said FIS, PW12 registered crime as per Ext.P2(a) FIR. Information was passed on by PW12 to his superior officer and that led PW15 to take over investigation. Going by the evidence furnished by PW15, the Investigating Officer, they received information that on 28.9.2005 at 8.30 p.m. an incident had taken place near Rosy School near Anchumoorthy Mangalam. He got in touch with Vadakkancherry Police Station and made arrangements for guarding the scene. He had also made arrangements for effective patrolling in the area. On 29.9.2005 PW15 at about 7.30 a.m. reached Cresent Hospital at Alathur and conducted inquest over the body of Soman and Ext.P4 is the report drawn up by him. As per Ext.P4, M.Os. 8, 9 and 10 were seized from the body and so also M.O.11. Body was then sent for autopsy. PW8 conducted autopsy over the body of Soman and prepared Ext.P6 postmortem certificate. In the meanwhile, PW15 proceeded to the place of occurrence and prepared scene mahazar, namely, Ext.P1. He seized the various articles Crl.Appeal 2144/2011.
5ranging from M.Os. 1, 2, 3 etc from the place of occurrence as per the scene mahazar. He recorded statements of witnesses and on 30.9.2005 at about 4.45 a.m. he had accused Nos. 1 to 4 arrested. He furnished Ext.P22 report to that effect before the court. On 1.10.2005 accused Nos. 5, 6 and 7 were arrested and Ext.P26 report was filed. He had the weapons seized during preparation of scene mahazar identified by the witnesses and he obtained police custody of third accused. Based on his confession statement, namely, Ext.P3(a), M.O.7 knife was recovered as per Ext.P3 mahazar. He had photographs of the relevant matters taken and they are M.O.12 series. He then had sent a forwarding note to the court to sent the articles seized during investigation for chemical examination and obtained Ext.P32 report. Ext.P33 is the analysis report of the viscera and blood collected during postmortem by PW8. Finding that offence under Section 212 of I.P.C. had also been committed, he filed Ext.P34 report seeking to incorporate the said offence. He completed Crl.Appeal 2144/2011.
6investigation and laid charge before court.
4. The court, before which final report was laid, took cognizance of the offences and finding that the offences are exclusively triable by a court of sessions, committed the case to Sessions Court, Palakkad under Section 209 Cr.P.C. after following the necessary procedures, which court made over the case First Additional Sessions Court, Palakkad for trial and disposal.
5. The latter court, on receipt of records and on appearance of the accused, framed charge for the offences under Sections 341, 324, 302 and 212 read with Section 34 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs1 to 15 and had Exts.P1 to P35 marked. They also had M.Os. 1 to 12 series identified and marked. The defence from their side had Exts.D1 and D1(a) marked at the time of prosecution evidence. After the close of the prosecution evidence, the accused were questioned under Section 313 Crl.Appeal 2144/2011.
7Cr.P.C., in which they denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. They also added that they have been falsely implicated with ulterior motive. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They, from their side, had D.W.1 examined and Ext.D2 marked.
6. Considering the testimony of PWs2, 3, 10 and 13 taking along with the recovery at the instance of third accused, the court below came to the conclusion that the prosecution has convincingly established the acts attributed to each of the accused and also came to the conclusion that the murder of Shri.Soman was caused in furtherance of the common intention shared by accused Nos. 1 to 4 and therefore, they were found guilty of the offences alleged against them and they were therefore convicted and sentenced as already mentioned. However, the court below found that there was no materials against accused Nos. 5 to 7 and they were Crl.Appeal 2144/2011.
8acquitted of all the charges levelled against them.
7. Assailing the conviction and sentence, Shri. S.Rajeev, learned counsel appearing for accused Nos. 1, 2 and 4 contended that the court below has not applied its mind to the evidence in the case and had mechanically acted on the testimony of so-called injured witness, PWs 2, 3, 10 and 13. A dispassionate and impartial consideration of the evidence would show that the incident had not originated, developed and culminated as alleged by the prosecution and if that be so, the benefit of doubt should certainly accrue to the accused. Learned counsel went on to point out that the weapons made mention of in Ext.P2 FIS are not the weapons recovered at the instance of various accused persons. Several weapons were recovered and then to suit the prosecution case, they were incorporated so as to appear that those weapons were used for inflicting injuries. Learned counsel went on to point out that in the process of analysing the evidence, the court below has lost sight of the fact that the first accused had Crl.Appeal 2144/2011.
9suffered injuries and that aspect has not been considered at all. This assumes importance, according to the learned counsel, in the light of the testimony of PW10 who admits that there was a scuffle and melee in which various persons were hurt. At any rate, a reading of the evidence of PWs. 2, 3, 10 and 13 will not reveal as to how the incident had originated. It was also contended that there are two independent witnesses made mention of in Ext.P2 FIS and the prosecution deliberately refrained from examining them in order to conceal the real incident. Equally important is the non-examination of Siju and Manikantan. Learned counsel also pointed out that at the place of incident, a motor bike was found and two knives were recovered from the place and a pair of chappel. There was no attempt from the side of the prosecution to find out the owners of those articles. It is surprising. According to the learned counsel, the investigation was very shabby in this regard. The prosecution has also no case as of now that any of the victims had come on a motor bike. The prosecution had Crl.Appeal 2144/2011.
10necessarily to explain the presence of motor bike found at place of occurrence and its owner. So also the knives recovered from the spot are not shown to have been carried by the accused persons and at the time of evidence it was stated that these knives were alleged to have been used for inflicting the injuries. It is here that the learned counsel draws the attention of this Court to the mentioning of weapons in Ext.P2. Entirely different types of weapons are mentioned in Ext.P2 than those recovered and that shows, according to the learned counsel, that the prosecution wants to conceal more than what it has revealed.
8. The learned counsel finally pointed out that even assuming all that the prosecution case has been proved, it is difficult to come to the conclusion that the act committed by the first accused is in furtherance of the common intention shared by accused Nos. 2 to 4.
9. Sri. Vijayabhanu, the learned Senior Counsel appearing for the third accused also shared the same view and Crl.Appeal 2144/2011.
11pointed out that by no stretch of imagination, on the facts of the case and the proved circumstances, it could be said that the act committed by the first accused in inflicting the fatal stabs on Soman was in furtherance of the common intention. The court below has grievously erred in law in understanding the scope and ambit of Section 34 and its application. By no stretch of imagination, it could be said that accused nos. 2, 3 and 4 are privy to the transaction in which Soman suffered injury at the hands of the first accused.
10. The learned Public Prosecutor on the other hand pointed out that the very fact that all the accused came together and they had been carrying weapons and they had unleashed an attack on the victims would show that they shared a common intention. It was in furtherance of the common intention that the stab injury was inflicted and therefore the court below was fully justified in invoking Section 34 of the I.P.C. For the above proposition, the learned Public Prosecutor relied on the decision reported State of Karnataka Crl.Appeal 2144/2011.
12v. Yarappa Reddy (1999 (3) KLT 456).
11. The learned Public Prosecutor pointed out that it is extremely difficult to get direct evidence to prove common intention and that has to be gathered from proved circumstances. When the totality of the circumstances in this case is taken into consideration, it becomes quite evident that the act committed by the first accused was in furtherance of the common intention shared by all the accused persons, especially, when the prosecution has succeeded in showing that they were fully armed and also had unleashed the attack on the victim.
12. The learned Public Prosecutor pointed out that the criticism levelled regarding the difference in the nature of weapons made mention of in Ext.P2 and those which were recovered from the place of incident and were alleged to have been used by the accused persons at the time of giving evidence, is of little significance. Even if no weapon as such is recovered and if the injuries are proved, that would be Crl.Appeal 2144/2011.
13sufficient in law. What is significant, according to the learned Public Prosecutor, is there is absolutely no evidence to show that any of the victims were armed with any weapon whatsoever, and it is also important to note that no contradictions or inconsistencies could be brought out in their evidence. The court below found the evidence of PWs 2, 3, 10 and 13 to be convincing enough and consistent with the prosecution case and found no reason to suspect the versions given by them.
13. The court below also drew support from the fact that the above witnesses had suffered injuries at the hands of the accused persons and also that as going by the evidence, there is nothing to show that any of the victims were armed with any sort of weapons. The wound certificates, according to the lower court, speak about the injuries suffered by them and therefore, the lower court found that the injuries inflicted on the victims by any one of the accused persons was in furtherance of the common intention and therefore the Crl.Appeal 2144/2011.
14court below was justified in taking aid of Section 34 of IPC to convict the accused for the offence under Section 324 of IPC.
14. The learned Public Prosecutor then pointed out that any flaws or infirmities in the investigation cannot be a ground to acquit the accused when there is convincing oral testimony of witnesses to prove the incident. This case stands on a higher pedestal, according to the learned Public Prosecutor, since staunch witnesses paraded by the prosecution are all injured witnesses and it is well settled that unless there are compelling reasons, the evidence given by an injured witnesses shall not be easily discarded. There is no justification, according to the learned Public Prosecutor, to doubt the version given by PWs 2, 3, 10 and 13 in the case on hand regarding the incident and it is very evident from their testimony that the accused persons had let loose an attack on them.
15. At any rate, according to the learned Public Prosecutor, the court below has chosen to rely on the evidence Crl.Appeal 2144/2011.
15of PWs 2, 3, 10 and 13 and there is no reason as to why this Court should take a different view with regard to their evidence. In short the contention is that there are no grounds to interfere with the finding of the court below.
16. That the incident had taken place on 28.09.2005 in front of the Rossy School at Mangalam- Chozhiyamkod road is not much in dispute. It is also not much in dispute that theren are two groups; one group consisting of assailants who were the sympathizers of BJP and th victim were CPM sympathizers. It is also conceded that there was bitterness between the two groups.
17. The prosecution version is that on the date of incident, hearing that the BJP sympathizers were causing trouble at Chozhiyamkod, the victims consisting a group of 8 persons including PWs 2, 3, 10 and 13, decided to find out the details and marched to Chozhiyamkod. While they were on their way along the Chozhiyamkod-Mangalam road, when they reached in front of the Rossy School, it so happened that the Crl.Appeal 2144/2011.
16assailants were seen coming from the opposite direction on two motor bikes. It may be noticed here that the time was about 8.45 when the incident took place. Going by the evidence, there is nothing to indicate that there was any street light or any other light available at the spot and the prosecution itself relies on the presence of light on the lit torches alleged to have been carried by the victims and also the light provided by the motor bikes.
18. The further prosecution case is that no sooner than the two groups met, the first accused, exhorting to do away with the CPM sympathizers, jumped out of his motor bike and drew a knife from his loins and inflicted a fatal stab on Soman, which fell on his chest. Soman fell on the ground and thereafter, the assailants are alleged to have unleashed attack on the rest of the victims consisting of PWs 2, 3, 10 and 13 also. All the 8 of them seems to have suffered injuries. However, the prosecution was satisfied by examining PWs 2, 3, 10 and 13.
Crl.Appeal 2144/2011.
17
19. As rightly pointed out by the learned Public Prosecutor, the court below thought it proper and befitting to accept the evidence of PWs 2, 3, 10 and 13, as it was found to suffer from no inconsistencies and infirmities and the court below found no justification to discard their evidence. It was mainly based on their evidence that the finding of guilt was entered into.
20. The evidence of PWs 2, 3, 10 and 13 was severely criticized by the learned counsel appearing for the appellants on several grounds which have already been mentioned. It becomes necessary therefore to refer to their evidence in some detail.
21. It is an admitted fact that an incident did take place at the place of occurrence and the date alleged and at the time alleged by the prosecution. It cannot be disputed now that PWs 2, 3, 10 and 13 were among the victims who marched towards Chozhiyamkod to find out the details of the activity that had created disturbance at Chozhiyamkod as a Crl.Appeal 2144/2011.
18result of the acts committed by the BJP sympathizers.
22. The author of Ext.P2 First Information Statement is PW2. His evidence shows that on the date of incident, while they were discussing their victory in the recently concluded election, they heard that BJP sympathizers were creating trouble at Chozhiyankod. This news was conveyed to them, according to PW2, by two or three persons who had come from that area. That made PWs 2, 3, 10 and 13 inquisitive and they wanted to find out what had exactly happened. They therefore proceeded to the spot. On their way, when they reached in front of the Rossy School, it so happened that, according to PW2, they found two motor bikes coming from the opposite direction and those motor bikes were brought to a halt in front of them. When the victims lit their torch, they found accused Nos. 1 to 4. According to PW2, a short while thereafter, the first accused jumped out of the motor bike and, exhorting to do away with CPM sympathizers, inflicted a deadly stab on the chest of Soman. Crl.Appeal 2144/2011.
19As the knife was withdrawn, Soman fell on the ground. When PW2 and others rushed to the aid of Soman, the second accused wielded his knife which caused injury on his right cheek. Further wielding of knife caused injuries on his nose. The third accused Praveen, according to PW2, took out a knife and began to slash it violently which, according to him, caused injuries to PW3 Asharaf Ali. In the incident, according to PW2, all the 8 victims were injured. Going by the evidence of PW2, hearing the commotion, one Biju and Manikantan and two other persons had reached the place. Seeing them, the accused escaped on the motor bikes. He happened to see the victim, Soman, staggering towards the western side. Those persons, who had gathered at the spot, removed the injured to the hospital. They were taken to Alathur Crescent Hospital. By the time, when they reached there, Soman had left this world. PW2, Muhammed Ali, Asharaf Ali, Rajesh, the victims were admitted in the Crescent Hospital. It was found that the injury suffered by Rajesh could not be easily managed and Crl.Appeal 2144/2011.
20therefore he was removed to the ICU. He would further say that coming to know about the incident, the Police had come to the Hospital and recorded his statement. He identified all the accused in court and so also the weapons alleged to have been used by the assailants.
23. The next injured witness is PW3. His presence at the spot and his involvement in the incident is not seriously disputed. Regarding the origin of the incident, he gives an identical version as the one given by PW2 and it is not necessary to repeat the same. He also speaks about the stab on Soman and consequent to the stab injury, Soman fell on the ground. According to him, Ratnakumar, the second accused attacked him with a knife. He suffered injuries on his left upper limb and on the left side of his shoulder. Selvaraj, the fourth accused beaten on his shoulder with a cricket stump. He too would say that he had occasion to see Soman staggering towards the western side. He confirms the statement given by PW2 that they were all carrying torch and Crl.Appeal 2144/2011.
21in the light of the torch, they had identified the accused persons and also noticed attack on the victim. He identified all the accused persons in court. He would attribute political rivalry for the incident.
24. The next victim is PW10 and like in the case of PWs 2 and 3, his presence also cannot be seriously disputed by the defence. He too falls among the category of injured witnesses and as in the usual rule, unless there are convincing materials to show that his evidence cannot be accepted, the court has to necessarily take note of the testimony given by him regarding the incident. Like PWs 2 and 3 regarding the initial aspects of the incident, he gives a similar version and it is unnecessary to refer to the same. PW10 would say that the third accused inflicted injuries on him using a knife and he suffered injuries on the left side of his chest. In the process of warding off the attack, he had also suffered injuries on the right index finger of his left hand. Repeated attacks by the third accused resulted in injuries to him on his forehead and Crl.Appeal 2144/2011.
22the back side of the head. When he tried to run away from the place, further injury was inflicted on his left shoulder from behind. He also identified the weapons used by the accused and so also the accused persons.
25. The next victim is PW13 who too is an injured victim. His version regarding the incident is identical with the versions given by PWs 2, 3 and 10 and it is not necessary therefore to narrate the incident again as spoken to by those witnesses. According to him, he was attacked by the fourth accused with a cricket stump and he was also attacked by the second accused using a knife. Like PWs 2, 3 and 10, he too identified the assailants and also the weapons alleged to have been used by them.
26. That PWs 2, 3, 10 and 13 suffered injuries at the hands of the accused cannot be much in dispute in view of their testimony and also in view of the wound certificates issued by PW14. PW14, the Doctor of the Crescent Hospital had examined PWs 2, 3, 10 and CW3 and had issued Exts.P11, Crl.Appeal 2144/2011.
23P13, P15 and P17 wound certificates. The case sheets maintained in the said hospital as regards PWs 2, 3, 10 are Exts. P12, P14 and P16 respectively. It may be mentioned here that PW14 only confirms the entries in the hospital records which was in fact entered by another doctor who was not available for examination at the relevant time.
27. PW9, the Doctor attached to Community Health Centre, Alathur had attended to PW13 and had prepared Ext.P7 certificate. He also examined CWs 5 and 6 and prepared Exts.P8 and P9 wound certificates.
28. At this point of time, it is necessary to refer to these certificates, since contentions have been raised on the basis of entries in these certificates by the learned counsel appearing for the appellants for buttressing their argument that incident has not taken place as alleged by the prosecution. Ext.P7 relates to one of the victims by name Anilkumar. He was brought to the hospital by one Saleem. Ext.P7 wound certificate shows the following injuries:
Crl.Appeal 2144/2011.24
"5 cm incised wound vertically (L) frontal parietal region 2 = cms injury (incised) (R) Ring finger tip"
29. Emphasize is laid by the defence as regards the history of injuries of Anilkumar which is shown in Ext.P7 reads as follows:
"alleged assault by two persons (identifiable), at 8.30 p.m. at Mangalam near Rossy School with sword."
30. Ext.P11 relates to a victim by name Viswanathan and his wound certificate shows the following injuries:-
"(1) Lacerated wound over right side of mouth about 4cms in length.
(2) Lacerated wound over bridge of nose about 2 cms in length."
The history shown in the certificate is assault without naming the assailants.
Crl.Appeal 2144/2011.
25
31. Ext.P13 is the wound certificate relating to Asharaf Ali and his wound certificate shows the following injuries:-
"(1) Abrasion over left shoulder (2) Lacerated wound over left hand about 1x1x1 cms (3) Lacerated wound over nose about 2cms in length"
It is seen that he also suffered a crack fracture of aeromon process of scapular. The history of injuries suffered in assault.
32. Ext.P15 is the wound certificate relating to Rajesh which shows the following injuries:-
"(1) Lacerated wound left side of chest (2) Lacerated wound over scalp and (3) Lacerated wound left scapular"
The history shown in the certificate is assault near Mangalam at around 7.45 p.m.
33. Ext.P17 is the wound certificate relating to Muhammed Ali which shows the following injuries:-
"(1) Lacerated wound over first interdigital Crl.Appeal 2144/2011.26
space of left hand and (2) Abrasions over lower chest"
The history shown in the certificate is assault only.
34. It is contented on behalf of the defence that the parties were very familiar to each other and each of the victims new their respective assailants. If as a matter of fact, as spoken to by PWs 2, 3, 10 and 13, the injuries were inflicted by those persons to whom they attribute overt act, surely and certainly, the names of assailants would have found a place in the respective wound certificates. The absence of names in the wound certificates shows that the incident is not as stated by the prosecution.
35. Though the argument may look attractive at the first blush, it does not have much substance. It is by now well settled that the purpose of wound certificate is totally different and whether it carries names of the assailants or not, it is not of much relevance. Further in the case on hand, the incident and the involvement of the persons are not much in dispute. Crl.Appeal 2144/2011.
27The defence seems to be that the incident had not originated, developed and culminated in the manner as alleged by the prosecution. So that the absence of the names of the assailants in the wound certificates is of no significance at all.
36. It is now time to consider the cause of death of Soman. That Soman is no more and that he died as a result of the injury suffered by him at the hands of the first accused cannot be disputed. The inquest report prepared by PW15 and also the post-mortem certificate Ext.P6 drawn up by PW8 leads to no other conclusion. Ext.P6 shows the following injuries:-
"1. Incised penetrating wound 7.5 x 2.5 x 10.5 cm on lower part of right side of chest, oblique with its lower inner end 3.5 cm outer to midline and 21 cm below right collar bone. The upper end of the wound was sharply cut and the lower end was split. The wound was directed backwards upwards and to the right. The wound had cut the lower border of the 6th ribs and the intercostal muscles of the 6th intercostal space 7 x 1.5 cm and entered the right chest cavity (chest Crl.Appeal 2144/2011.28
wall thickness 2.2 cm). It had pierced the lower lobe and the upper lobe of right lung (4 x 1.8 x 8 cm). The right lung was collapsed. There was 500 ml of fluid blood in the right chest cavity.
2. Incised wound 2.5 x 1.5 cm x 1.8 cm on medial aspect of left forearm, 8 cm above wrist.
3. Incised wound 4.5 x 1 x skin deep on the outer aspect of left axilla.
4. Linear abrasion 2 x 0.2 cm on the front of contour of right shoulder.
5. Linear abrasion 2.5 x 0.2 cm on the outer aspect of right upper arm 10 cm below shoulder.
6. Incised wound 0.7 x 0.3 cm on the right collar bone 8 cm outer to midline.
7. Abrasion 0.5 x 0.4 cm on the front of right thigh 19 cm below hip bone.
8. Abrasion 2 x 0.6 cm on front of right knee.
Other findings were the following:-
Skull intact. Brain, mouth and pharynx pale. Neck and its structures intact.
Oesophagus, trachea and bronchi pale. Lungs pale, right lung was collapsed. Walls, Crl.Appeal 2144/2011.29
valves and chambers of heart were normal; coronary arteries were patent. Liver, spleen, kidneys, pancreas and adrenals were pale. Stomach weighed 300gms and contained partly digested cooked rice with no unusual odour. Stomach mucosa was normal.
Intestines and mesentery pale. Urinary
bladder empty. Genital organs normal.
Spinal column and cord intact."
37. It shows as many as 8 injuries out of which injury Nos. 1, 2, 3 and 6 are incised wounds. According to PW8, injury No. 1, which is inflicted on the chest, is a penetrating wound and is sufficient in the ordinary course of nature to cause death of a person. A cumulative reading of the evidence of PW8 and PW15 and other circumstances brought out in the case leaves one in no doubt that the death of Soman is homicidal.
38. There is not much dispute that the fatal injury was inflicted on Soman by the first accused. All the witnesses namely, PWs 2, 3, 10 and 13 speak about the same and in fact, Crl.Appeal 2144/2011.30
it is not seriously disputed also. Of course, as regards others, there is contention raised regarding the weapons alleged to have been used by the respective assailants. There is also some controversy regarding the sequence of events and also regarding the persons who had inflicted injuries on the victim. Regarding the role of some of the accused persons in inflicting injuries on certain persons, there was much debate. But these are trifle matters and the fact remains that an incident did take place in which PWs 2, 3, 10 and 13 suffered injuries along with four others. These aspects have been dealt with in considerable details by the court below and it is unnecessary for this Court to dwell upon the same since no other view is possible in that regard.
39. It is significant to notice that in spite of searching cross examination of PWs 2, 3, 10 and 13, nothing could be brought out from their evidence to show that they are not speaking the truth or that their evidence is open to any serious doubt. They stood by their earlier statements and no Crl.Appeal 2144/2011.
31contradictions or inconsistencies have been brought out in their evidence. Apart from the above fact, one cannot omit to note that they are injured witnesses whose evidence is entitled to considerable weight, unlike in the case of other ocular witnesses, the reason being that their presence in the place of incident cannot be disputed.
40. The court below, on independent evaluation of the evidence of PWs 2, 3, 10 and 13, we find no reason to take a different view from that of the court below and it stands well established that the injuries suffered by PWs 2, 3, 10 and 13 were inflicted by the respective assailants.
41. The next question that arises for consideration is whether the offence of murder is made out.
42. That it cannot be disputed that Soman suffered a fatal injury on his chest at the hands of the first accused. There was an attempt from the side of the defence to point out that it was 8.45 in the night when the incident is alleged to have taken place and there was no light available at the place Crl.Appeal 2144/2011.
32of incident. It was contented that being at loggerheads, the assailants might have apprehended attack from the side of the victims and in that apprehension, it is possible that Mony, the first accused might have drawn a knife and wielded the same to keep the victims away from coming near to them. Under those circumstances, though fatal injury was suffered by Soman, it could not be said that the injury was intended to cause the death of Soman.
43. Though the argument may look attractive initially, when we look at the evidence on record, it does not stand scrutiny. The evidence of PW8, the Doctor, who conducted autopsy is to the effect that the injury inflicted on the chest is sufficient in the ordinary course of nature to cause death of a person. The said injury reads as follows:
"Incised penetrating wound 7.5 x 2.5 x 10.5 cm on lower part of right side of chest, oblique with its lower inner end 3.5 cm outer to midline and 21 cm below right collar bone. The upper end of the wound was Crl.Appeal 2144/2011.33
sharply cut and the lower end was split. The wound was directed backwards upwards and to the right. The wound had cut the lower border of the 6th ribs and the intercostal muscles of the 6th intercostal space 7 x 1.5 cm and entered the right chest cavity (chest wall thickness 2.2 cm). It had pierced the lower lobe and the upper lobe of right lung (4 x 1.8 x 8 cm). The right lung was collapsed. There was 500 ml of fluid blood in the right chest cavity."
44. From the very nature of description of the injury, it can be seen that it was inflicted on the vital part of the body with sufficient force. Considering the nature of injury, it is difficult to hold, even assuming that there was no intention to cause such an injury, that there was no knowledge that the injury so inflicted is sufficient in the ordinary course of nature to cause death falling within the 4th clause of Section 300 of I.P.C. A person who inflicts a fatal injury on the vital part of the body with sufficient force must be credited with at least knowledge of the consequence of his act. If that be so, Crl.Appeal 2144/2011.
34the first accused is clearly guilty of the offence of murder.
45. The court below took aid of Section 34 of IPC to bind the rest of the accused for the act committed by the first accused. No reasons as such have been given for taking aid of Section 34 except that there was a commotion in which others were also injured.
46. Sarkar in his book on Indian Penal Code 1860, 2nd Edition, Vol. 1 at Page 219 mentioned as follows:
"The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.
Furthermore, in order to attract Section 34, it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Section 34 is that each must share the intention of the other. In a given case, it may be that when some persons start with a pre-arranged plan to commit a minor Crl.Appeal 2144/2011.
35
offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence, but the conduct of other evidence must be such as not to leave any room for doubt in that behalf. When a Court wants to fasten vicarious liability, it must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former."
47. The learned counsel appearing for the 3rd accused relied on the decision reported in Dharam Pal and others v. State of Haryana (AIR 1978 SC 1492) wherein, it was observed as follows:
"A Criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his Crl.Appeal 2144/2011.36
companions who are sought to be constructively made liable in respect of every act committed by the former. There is no law which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case."
48. The question of applicability of Section 34 was also considered in the decision reported in Nand Kishore v. State of Madhya Pradesh (AIR 2011 SC 2775) wherein, it was observed as follows:
"Now, we would examine whether the conviction of the appellant under Section 302 with the aid of Section 34 by the courts is sustainable in law or not. For the application of Section 34, IPC, it is difficult to state any hard and fast rule which can be applied universally to all cases. It will always depend upon the facts and circumstances of the given case whether the persons involved in Crl.Appeal 2144/2011.37
the commission of the crime with a common intention can be held guilty of the main offence committed by them together. Provisions of Section 34, IPC come to the aid of law while dealing with cases of criminal offence committed by a group of persons with common intention. Section 34 reads as under:
"34. Acts done by several persons in furtherance of common intention. - When 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."
A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that Act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether Crl.Appeal 2144/2011.
38
an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once criminal act and common intentions are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34, IPC must be done by several persons.
The emphasis in this part of the section is on the word 'done'. It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence, both physically as well as mentally, i.e., he is a participant not only in what has been Crl.Appeal 2144/2011.
39
described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between 'common intention' on the one hand and 'mens rea' as understood in criminal jurisprudence on the other.
Common intention is not alike or identical to mens rea. The latter may be co-incidental with or collateral to the former but they are distinct and different."
49. The learned Public Prosecutor relied on the decision reported in Balakrishnan Alias Balappan v. State (1959 KLT 796) and State of Karnataka v. Yarapa Reddy (1999 (3) K.L.T. 456). In the latter decision, it was held as follows:
"19. But can the above finding (that the Station House Diary is not genuine) have Crl.Appeal 2144/2011.40
any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is Crl.Appeal 2144/2011.41
true the court is free to act on it albeit investigating officer's suspicious role in the case."
50. The contours and parameters of application of Section 34 are well settled. It is unnecessary to enter into a detailed discussion in that respect as the law has been settled by the decisions cited above and the extract from the book referred to above. With the above principles in mind, one may now have a look at the evidence in the case on hand.
51. When we recall the evidence furnished by PWs 2, 3, 10 and 13, it is evident that they had voluntarily decided to go to Chozhiyamkod hearing about the trouble created there by BJP sympathizers. The evidence would suggest that the assailants were also from Mangalam area where the victims resided. While the victims were on their way to Chozhiyamkod, it so happened that the assailants came from the opposite side on two motor bikes. It is in evidence that as soon as the assailants saw the group consisting of the victims, Crl.Appeal 2144/2011.
42they brought their motor bikes to a halt. Soon thereafter, even going by the prosecution story, the first accused got out from his motor bike, rushed towards Soman and inflicted the fatal injury.
52. This was followed by a commotion and scuffle as could be evidenced from the testimony of PW10. It is not doubt true that there is nothing as of now to show that the victims were armed. However, there are materials to show that the assailants were armed with weapons. The question as to what were the weapons carried by the assailants is no longer a matter of concern and that has already been considered in the earlier part of this judgment.
53. The court below on the basis of the attack unleashed by the assailants on other victims jumps to the conclusion that it can be projected backwards and that the act of the first accused inflicting the fatal injury on Soman can be treated as in furtherance of the common intention shared by the assailants.
Crl.Appeal 2144/2011.
43
54. It is extremely difficult to accept the finding of the court below. Relying on the principles laid down in the various decisions referred to above and applying the test laid down therein, it is difficult to come to the conclusion that the fatal stab injury was inflicted as in furtherance of the common intention shared by the accused persons.
55. First of all, the accused persons had no notice that the victims would come to Chozhiyamkod to find out what the commotion created by the BJP sympathizers about and much less they had any knowledge about Soman coming in that group. It may be true that the two groups were at loggerheads. But that is far from saying that one of the groups always carries a common intention to do away with the members of the other group.
56. Even going by the prosecution sequence of events, the stab inflicted on Soman was a spontaneous and sudden act committed by the first accused and there seems no materials to come to the conclusion that the said act Crl.Appeal 2144/2011.
44committed by the first accused was in furtherance of the common intention shared by the other accused persons. Probably, from the evidence, it would appear that the other accused persons namely, accused Nos. 2, 3 and 4 did not anticipate such an act from the first accused and they were taken aback by the said act of the first accused. It would appear that the accused persons who had far outnumbered by the victims group might have apprehended assault from them and that is probably the reason why PWs 2, 3, 10 and 13 would say that soon the members of the assailants group began brandishing the knives to keep the victims at bay. This Court is not omitting to note the fact that the injuries were inflicted on PWs 2, 3, 10 and 13.
57. But to stretch the infliction of injuries on PWs 2, 3, 10 and 13, as it to be in furtherance of the common intention shared by the accused persons or to attribute the stab injury projecting it backwards as the consequence of common intention shared by them will be going far too much. Crl.Appeal 2144/2011.
45By no stretch of imagination, it could be said that the initial infliction of the injury by the first accused is a consequence of the common intention shared by the accused persons. One cannot omit to note that the exhortion for the attack was given by the first accused himself and in fact if one carefully looks at the evidence, no serious injuries have been inflicted on the victims, namely, PWs 2, 3, 10 and 13 even though injuries have been inflicted on them.
58. Though much was made out of the fact that the first accused had suffered an injury in the context in which the injury was suffered, it does not appear that it can be taken as a ground to suspect the origin, development and culmination of the incident. Probably, the investigation may not be a very happy one. But as rightly pointed out by the learned Public Prosecutor, flaws in investigation by itself is not a ground to throw out the prosecution case when it is clearly established by the evidence of PWs 2, 3, 10 and 13.
Crl.Appeal 2144/2011.
46
59. It is extremely difficult to accept the finding of the court below that the act committed by the first accused of inflicting a fatal stab on Soman was in furtherance of the common intention of accused Nos. 1 to 4 for reasons already stated. The conviction of accused Nos. 2 to 4 by taking aid of Section 34 of IPC in the facts and circumstances of the case seems to be a misplaced one.
60. As regards the conviction for the offences under Section 324 read with Section 34 and Section 341 read with Section 34 are concerned, we find no grounds to interfere with the findings of the court below.
In the result, this appeal is partly allowed. The conviction and sentence of accused Nos. 2, 3 and 4 for the offence under Section 302 read with Section 34 of IPC is set aside while confirming the conviction and sentence of accused No.1 for the offences under Sections 302, 324 and 341 read with Section 34 of IPC. The conviction passed against accused Nos. 2, 3 and 4 for the offences under Crl.Appeal 2144/2011.
47Sections 324 and 341 read with Section 34 of IPC also stand confirmed, so also the sentences awarded to them for those offences. If accused Nos. 2, 3 and 4 have served out their sentence for the offence under Section 324 read with Section 34 and 341 read with Section 34 of IPC, they shall be released forthwith from custody, unless wanted in any other case.
P.BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V JUDGE sb/ds.