Jagady @ Jagadeeshan vs State Of Kerala on 9 October, 2024

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Kerala High Court

Jagady @ Jagadeeshan vs State Of Kerala on 9 October, 2024

The above appeals arise from S.C.No.323 of 2013 on the files of the Court of the Additional Sessions Judge for the Trial of Cases Relating to Atrocities and Sexual Violence against Women and Children, Thiruvananthapuram. The first accused in the case absconded after the committal proceedings and the remaining accused namely accused 2 to 4 faced the trial. The Court convicted the second accused and acquitted accused 3 and 4. Criminal Appeal No.611 of 2017 is preferred by the second accused challenging his conviction and sentence in the case and Criminal Appeal No.1233 of 2018 is preferred by the State challenging the acquittal of accused 3 and 4.

2. On 14.12.2008 at about 8.00 p.m., a 16 year Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 5 :- 2024:KER:74649 old boy was hacked multiple times with a sword at his house while preparing for his classes, by a stranger who came under the pretext of assigning a wiring job to his father, who is an electrician by profession. The assailant came with another person and they fled after the occurrence on a motorcycle ridden by another person who was waiting for them by the motorcycle outside the house. Although a case was registered on the following day in connection with the occurrence, the police could not unravel the mystery behind the attack. After about three years, the victim saw the assailant and his ally in front of a sawmill. The matter was immediately reported to the police and the police in turn apprehended the assailant and his ally, restored the investigation in the case which had been halted in the meanwhile and submitted the final report alleging commission of offences punishable under Sections 452, 324, 326, 307 and 120B read with Section 34 of the Indian Penal Code (IPC) and Section 27 of the Arms Act.

3. The accusation in the case is that the fourth accused harboured enmity towards the father of the victim as he believed that the father of the victim caused destruction of Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 6 :- 2024:KER:74649 the chicks in his poultry farm through black magic; that the fourth accused hatched a criminal conspiracy with accused 1 to 3 on account of the said reason to cause the death of the victim and hired accused 1 to 3 for the said purpose for a price and in furtherance of the conspiracy, accused 1 and 2 went to the house of the victim at about 8.00 p.m. on 14.12.2008 in a motorcycle ridden by the third accused and the first accused thereupon hacked the victim repeatedly, with a sword concealed by him behind his back inside his shirt.

4. On accused 2 to 4 being committed to trial, the Court of Session framed charges against them and the accused pleaded not guilty. The prosecution thereupon examined 26 witnesses as PW1 to PW26 and proved through them 34 documents as Exts.P1 to P34. MOI to MOVI are the material objects identified by the witnesses. On the closure of the evidence, when the accused were questioned under Section 313 of the Code of Criminal Procedure (the Code), they denied the incriminating circumstances against them. As the case was not one found fit for acquittal under Section 232 of the Code, the Court of Session called upon the accused to Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 7 :- 2024:KER:74649 enter on their defence. The accused chose not to adduce any evidence. Thereafter, on an appraisal of the evidence on record, the Court of Session found the second accused guilty of the offences punishable under Sections 452, 324, 326 and 307 read with Section 34 IPC, convicted and sentenced him among others to imprisonment for seven years and to pay fine. He was found not guilty for the offences punishable under Section 120B IPC and Section 27 of the Arms Act. Accused 3 and 4 were found not guilty of the offences charged against them. As noted, both the second accused as also the State are aggrieved by the decision of the Court of Session, hence these appeals.

5. Heard the learned Public Prosecutor as also the learned counsel for accused 1 to 3.

6. The point that falls for consideration is whether the impugned judgment is vitiated by errors of law or facts.

7. The evidence let in by PW1, PW2, PW16, PW19, PW22 and PW25, alone, needs to be considered for adjudicating the point formulated for decision. Among the said Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 8 :- 2024:KER:74649 witnesses, PW1 is the victim. PW2 is the younger brother of the victim. PW2 is an eye witness to the occurrence. Before referring to the evidence tendered by PW1, it is necessary to note that the Court of Session has recorded the deposition of PW1 mechanically without understanding the background of the case and as a result, there occurred a few inadvertent mistakes in the deposition as regards the conversation PW1 had with accused 1 and 2 before the alleged occurrence and PW1 is seen to have affixed signature on the deposition without taking note of the same. A close reading of the evidence tendered by PW1 along with the First Information Statement given by him would indicate that what was stated by PW1 in his evidence was that before the occurrence, accused 1 and 2 had required PW1 to note down details of the rooms in their house in the pretext that they wanted the father of the victim to carry out the wiring work in their house and what was recorded by the Court of Session, inadvertently, in the deposition of PW1 is that accused 1 and 2 required PW1 to note down the list of materials required for the wiring work. Needless to say, the evidence tendered by PW1 needs to be Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 9 :- 2024:KER:74649 understood in that manner.

8. The trial in the case commenced only about eight years after the occurrence. PW1 was pursuing his Plus Two course during the period the occurrence took place. PW1 deposed that on 14.12.2008, at about 8.00 p.m., while he was preparing his record book, accused 1 and 2 came to his house in search of his father; that when he informed them that his father would come home only after 8.45 p.m., accused 1 and 2 told him that they came to entrust with his father the wiring work of their house and required him to note down the details of the rooms in their house where the wiring work is to be carried out. It was also deposed by PW1 that as instructed by accused 1 and 2, he took down the details and while they were leaving after furnishing the details, all of a sudden, the first accused took out a sword which was concealed by him behind his back inside his shirt and hacked PW1 which fell on his right palm. It was also deposed by PW1 that the first accused hacked him again repeatedly on his shoulder and on his hand, one of which slipped on to his leg. It was deposed by PW1 that when he cried aloud, accused 1 and 2 left the place in a bike Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 10 :- 2024:KER:74649 which was halted outside his house in the riding mode. PW1 identified the second accused as also MO1 sword as the weapon used by the first accused to hack him.

9. As noted, PW2 is the younger brother of PW1. PW2 deposed that on the relevant day at about 7.30 p.m., the second accused came to his house along with another person and ascertained from PW2 as to whether the house belongs to electrician Raju and when he answered in the affirmative, they also ascertained from him whether his father is present in the house and when PW2 answered the said query in the negative, they ascertained further from him as to when his father would return home. It was deposed by PW2 that when he informed the second accused that his father would return home only at about 8.00 p.m., they came back again at about 8.00 p.m. It was also deposed by PW2 that he then informed the second accused and to his ally that his father has not returned home and they then told him that they have come to collect the list of materials required for wiring work of their house and required PW1 to note down certain details of the house and PW1 took down the same. It was also deposed by PW2 that Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 11 :- 2024:KER:74649 after giving the details, while they were about to leave the house, the person who accompanied the second accused, took out all of a sudden a sword and hacked PW1. It was deposed by PW2 that when the hack was warded off by PW1, it fell on his hand, as a result of which his hand was cut and partially severed. It was deposed by PW2 that the said person hacked PW1 again and when PWs 1 and 2 raised their voice, the said persons left the place in a bike. PW2 also identified the second accused as the person who accompanied the assailant and MO1 sword as the weapon used by the assailant to hack PW1.

10. PW16 is the father of PWs 1 and 2. PW16 deposed that on 05.01.2012, when he was riding a bike with PW1, PW1 had shown to him accused 1 and 2 and informed him that they were the persons who came to their house and assaulted PW1. PW16 deposed that the matter was immediately informed to the police and the police apprehended accused 1 and 2. PW19 is the doctor who examined PW1 at Taluk Hospital, Neyyattinkara. PW19 deposed that on 14.12.2008 at 8.45 p.m,, he examined PW1 and issued Ext.P12 wound certificate. It was also deposed by PW19 that Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 12 :- 2024:KER:74649 on examination, it was noticed that the right hand of PW1 was hanging at the level of wrist, cut nearly more than half transversely from medial side. It was also deposed by PW19 that PW1 had wound on his right index finger, abrasion on the anterior part of his right arm as also wound on the anterior part of the right forearm with extensive skin and muscle loss. It was also deposed by PW19 that the cause of injuries was stated to him to be "കണണൽ അററയണവന രണപപർ വവടറയതറൽ വവചച at 8.10 p.m. in his own house." PW19 opined that the injuries sustained by PW1 can be caused by hacking with MO1 sword.

11. PW25 is one of the police officers who conducted the investigation in the case. PW25 deposed that on 05.01.2012, he was informed by PW1 and PW16 that they saw the assailant as also the second accused in front of a sawmill named "Thiruvathira Sawmill" and that on the basis of the said information, he arrested accused 1 and 2, completed the investigation and submitted the final report.

12. It is in the light of the evidence aforesaid that the Court of Session found the second accused guilty of the offences alleged against him. The contentions raised by the Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 13 :- 2024:KER:74649 learned Senior Counsel for the second accused are two-fold. The first contention is that going by the prosecution case, the occurrence took place in a fraction of a minute and no reliance could therefore be placed on the identification of the second accused by PWs 1 and 2 namely, the victim and his brother respectively, especially since the second accused was apprehended only after about 4 years of the occurrence. It was argued by the learned Senior Counsel that in a case of this nature, in the absence of any other material to connect the second accused with the crime, it is not safe to convict him solely based on the identification made by the witnesses. The second contention is that even assuming that the second accused was the person who accompanied the assailant, the first accused, inasmuch as no overt act on his part is proved, he cannot be convicted for the offence committed by the first accused with the aid of Section 34 IPC, for, in order to attract Section 34 IPC, the criminal act shall be one committed by the accused together in furtherance of their common intention. It was argued by the learned Senior Counsel that even though it was alleged that the common intention shared by the second Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 14 :- 2024:KER:74649 accused with the first accused was to commit the murder of the victim, the facts would demonstrate that if at all the second accused shared a common intention with the first accused, that was only to cause hurt to the father of the victim and not to the victim, at all.

13. No doubt, the occurrence took place on 14.12.2008 and the second accused was apprehended only after about three years, during January, 2012. As mentioned, the trial commenced almost 4 years thereafter, on 28.12.2016. As far as the identity of the second accused is concerned, the evidence tendered by PW1, the victim has been corroborated by the evidence of his brother, PW2. Going by the evidence tendered by PWs 1 and 2, the second accused came along with the first accused to their house not once, but twice. Of course, PW1 had not seen the second accused when he came to the house of PW1 for the first time at about 7.30 p.m., but it was PW2 who had conversed with the second accused then. There cannot be any doubt that such conversations would enable witnesses to note and recollect features of persons with whom they conversed with. Be that as it may, the second accused Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 15 :- 2024:KER:74649 came along with the first accused on the relevant day at about 8.30 p.m. to the house of the victim again. Even on this occasion, PW2 had an opportunity to converse with the second accused. It was thereupon that accused 1 and 2 had a conversation with PW1. As deposed by PW1, accused 1 and 2 had required him to note down the details of their house to enable PW16 to prepare the list of materials required for carrying out the wiring work. In the aforesaid background, it cannot be contended that PW1 would not be in a position to note the features of the second accused so as to enable PW1 to identify him at a later point of time, especially since he saw them on the date of occurrence. Had this been a case where only PW1 conversed with the second accused, the situation would have been slightly different. But, inasmuch as both PW1 and PW2 had occasion to converse with the second accused, we do not think that there is any reason, at all, to doubt the veracity of the evidence tendered by PW1 as regards the identity of the second accused. Needless to say, the first contention is only to be rejected and we do so.

14. Let us now deal with the second contention. Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 16 :-

2024:KER:74649 For Section 34 to apply, it is not necessary that the plan should be a prearranged one. Common intention can develop during the course of an occurrence or at the spot also. In such cases, direct evidence will not be available, and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence, the manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. The use of the words "in furtherance"

suggests that Section 34 is applicable also where the act actually done is not exactly the act jointly intended by the conspirators to be done. The common intention can be to do one act and another act can be done in furtherance of the common intention. It may be a preliminary act necessary to be Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 17 :- 2024:KER:74649 done before achieving the common intention; or it may become necessary to do it after achieving the common intention or it may be done while achieving the common intention [See Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521]. But, it is essential that each co-perpetrator should have the necessary intention to participate or otherwise have the requisite awareness or knowledge that the offence is likely to be committed in view of the common design. No doubt, if the final outcome or the offence committed is distinctly remote and unconnected with the common intention, a co-perpetrator who has not committed any overt act, may not be liable.

15. Let us consider the facts of the present case keeping in mind the said principles. The second accused has not offered any explanation as to the reason why he went to the house of PW1 on the relevant day not once, but twice, that too, along with the first accused. As noticed, the weapon used by the first accused is a sword having a length of 60 cm, and a width of 3.5 cm for its blade portion. It is common knowledge that one cannot carry such a weapon while commuting with Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 18 :- 2024:KER:74649 two other persons in a motorcycle without the knowledge of the co-travellers. The second accused has no explanation as to the purpose for which the first accused carried MO1 weapon with him when the former accompanied the latter to the house of PW1. It has come out in evidence that both the first and second accused entered the house of PW1 even after they were informed by PW2 that PW16 had not returned home. If as a matter of fact, the target of attack was only PW16, there was no reason why the second accused would enter the house of PW1 with the first accused who was carrying the weapon when they had already been informed that PW16 has not returned home. It has also come out in evidence that the person who brought accused 1 and 2 to the house of PW1 had kept the motorcycle in the riding mode itself without switching off its ignition as he was waiting for accused 1 and 2. These circumstances would show that the target of attack of accused 1 and 2 was only someone in the house of PW1 and not particularly, PW16 the father of PW1. Inasmuch as it is found that the second accused shared a common intention to attack someone in the house of PW1 and participated in the act by Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 19 :- 2024:KER:74649 accompanying the first accused, it cannot be said that the second accused had not participated in the commission of the crime. In a case of this nature, the role played by the second accused in accompanying the first accused who was carrying a lethal weapon to the house of PW1 and initiating a conversation with PW1 so as to enable the first accused to attack PW1 unexpectedly, can certainly be regarded as the participation in the crime. It is all the more so since one cannot rule out the possibility of the first accused not committing the act done by him, had the second accused not accompanied him to the house of PW1. There cannot be any doubt that giving assistance to commit an offence by accompanying an assailant with the requisite knowledge also has to be regarded as participation in the crime. Needless to say, the second contention is also only to be rejected and we do so.

16. Let us now deal with the appeal preferred by the State against the acquittal of accused 3 and 4. As noted, the case of the prosecution is that the fourth accused hatched a criminal conspiracy with accused 1 to 3 to cause the death of the victim and hired accused 1 to 3 for the said purpose for a Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 20 :- 2024:KER:74649 price. It is also the case of the prosecution that in furtherance of the conspiracy, the third accused dropped accused 1 and 2 to the house of the victim in a motorcycle and took them back after the occurrence. The evidence on record would show that it was PW1 who gave evidence to prove the complicity of the third accused in the crime. It was deposed by PW1 that he had previous acquaintance with the third accused; that he saw the third accused riding the bike in which accused 1 and 2 left the place after the occurrence and that the third accused was wearing a helmet at that time. The Court of Session chose to disbelieve the said evidence tendered by PW1 as PW1 did not have such a case when he gave the First Information Statement. It was noticed that the specific case of PW1 while he gave the First Information Statement was that there was no one else with accused 1 and 2 when they came to his house on the relevant day. The Court of Session chose to disbelieve the said evidence of PW1, also for the reason that having suffered such serious injuries, PW1 would not have been in a position to come out of his house to see how accused 1 and 2 left the place, that too, when the rider of the motorcycle was wearing a Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 21 :- 2024:KER:74649 helmet. That apart, it was noticed by the Court of Session that the third accused had no connection, whatsoever, with the motorcycle stated to have been ridden by him on the date of occurrence. The learned Public Prosecutor did not challenge the findings aforesaid of the Court of Session. The reasons on the basis of which the Court of Session found that the prosecution has failed to prove the complicity of the third accused in the crime, in the circumstances, are reasonable and the same do not, therefore, call for interference in an appeal against the acquittal of the third accused.

17. Coming to the complicity of the fourth accused in the crime, the Court of Session found that there is no evidence to show that he harboured enmity towards the father of the victim at any point of time. It was also found by the Court of Session that there is no evidence to show that anybody had killed the chicks in the poultry farm run by the fourth accused. Similarly, it was found by the Court of Session that even though it was alleged that the conspiracy between the accused was hatched in the courtyard of the house of first accused, no evidence was let in to prove that fact. It was also Crl.A. Nos.611 of 2017 & 1233 of 2018 -: 22 :- 2024:KER:74649 found by the Court of Session that even though PW17, the brother of PW16 deposed to have seen the fourth accused talking to three other persons while he was going to the house of the victim on the date of occurrence, PW17 could not assert in his evidence that accused 1 to 3 were those three persons. None of these findings have been challenged by the learned Public Prosecutor. If that be so, we do not find any infirmity in the finding rendered by the Court of Session that the prosecution failed to prove the complicity of the fourth accused in the crime.

In the circumstances, the appeals are devoid of merits and are, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.PRATHEEP KUMAR, JUDGE.

ds 24.09.2024

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