Kerala High Court
Benny Francis And Ors. vs State Of Kerala on 7 February, 1991
Equivalent citations: 1991CRILJ2411
JUDGMENT S. Padmanabhan, J.
1. Otherwise calm Thundipuzha river with shallow water will be in spate during rainy seasons when water raises up to the level of the bridge. During that period, youngsters of the locality, who know swimming, use to enjoy by jumping into the river from the bridge and swim when taking bath. They also use to find pleasure by forcibly putting their unwilling friends also into the river to join them. At about 4.30 p.m. on 22-7-1978, when the river was in spate, the six accused were enjoying their bath. Deceased Promod, one of their friends, was found walking through the nearly Nirmala hospital compound. At that time, accused formed themselves into an unlawful assembly with the common object of murdering Promod by throwing him into the water. They committed rioting and, in prosecution of the common object, accused 1 to 3 chased and caught the deceased, wrongfully restrained him and forcibly took him to the bridge against his protest and in spite of his cry that he did not know swimming and he would die if put into the water. All the accused then joined in throwing him into the water. He was washed off and drowned to death. This is the prosecution case.
2. Though charge was under Sections 143, 147, 341 and 302 read with Section 149 of the Indian Penal Code, conviction was only under Sections 143, 147, 341 and 304 (2) with the aid of Section 149 of the Penal Code. Second accused, who was under the age of 21, was released on probation. Case against the sixth accused, being a juvenile offender, was split up and sent to the children's court. Each among accused 1 and 3 to 5 was sentenced to undergo rigorous imprisonment for three months under Section 143, one year under Section 147, one month under Section 341 and five years under Section 304(2) read with Section 149 of the Penal Code, with direction to suffer the sentences concurrently. This is how accused 1 and 3 to 5 came up in appeal.
3. Fact that Promod fell into the river and was drowned to death at the time and place alleged by the prosecution is not in dispute. Plea of the accused is only that he had an accidental fall from the bridge by slipping while standing there. PWs. 1 and 5 to 8 are the occurrence witnesses, among whom, PW 8 turned hostile. Evidence of PWs 1 and 5 to 7, inquest report and the evidence of PW 17, who prepared the same, as well as the medical evidence of PW 9 and Ext. P6 post-mortem report prepared by him and the evidence of some other witnesses also proved that Pro-mod died by drowning.
4. Cause of death given by PW 9 is drowning. Dead body had 19 injuries, which were abrasions, lacerations and contusions. PW 9 said that some of these injuries could be due to acts of violence on his body and some others due to contact with hard and rough substances in the water. He said that injuries Nos. 14 and 15, which are contusions, could be caused by catchholding the wrist and palm forcibly. Injuries Nos. 16 and 19, in the scapular area and back, could be had in an attempt to hold the deceased from behind and injuries Nos. 17 and 18 indicate dragging that part of the body. These are acts of violence before the deceased was put into the water, as seen from the evidence of PWs 5 to 7. Thus this is a case in which ocular evidence is fully supported by the medical evidence.
5. In the light of Ext. P1 and the evidence of PWs 1 and 5 to 7, appellants did not pursue their plea that it was a case of accidental fall. They also did not dispute the fact that accused 1 to 3 forcibly took the deceased to the bridge in order to persuade him to join them in the bath. But they denied the evidence that the deceased made repeated cries that he did not know swimming and that he should not be thrown into the water as he would die. From the evidence, they contended that, as soon as the deceased was taken to the bridge by accused 1 to 3, he told them that he did not know swimming and hence they left him there and to their surprise and without their knowledge, either the fourth or fifth accused gave a push from behind, by which alone the deceased fell into the river. According to them, this push itself was unaware of the consequence of drowning because of lack of familiarity in swimming and that it was intended only as a sport with the belief that they themselves could save him in case of emergency. In support of that case, they relied on the evidence of PWs 1 and 5 to 7 themselves that this was the usual practice as an amusement and that some of the accused themselves jumped into the river to save the deceased. These contentions are acceptable to certain extent, but not as a whole.
6. Most of the occurrence witnesses admitted the fact that it was the usual amusement for the accused to force their friends to join them in swimming even by forcibly putting them in water. But that evidence cannot help the appellants. Their attempt was to escape on the basis of the evidence given by PW 1 in court. PWs 1 and 5 are respectively the younger and elder brothers of the deceased. PWs 6 and 7 are independent persons. But all these witnesses and the accused were admittedly friends and the deceased was also one of their friends. There was admittedly no enmity or motive for any of them. A faint suggestion of motive for false implication was made only against PW 6. That is political animosity denied by him and unsupported by any evidence. None of these witnesses even suggested any motive for the accused. They gave evidence only in the sense that what the accused did was a sport, even though they used force and did not heed to the request of the deceased that he might be spared because he did not know swimming. To me, the uniform evidence of PWs 5 to 7 appeared to be natural and convincing in spite of certain minor contradictions and discrepancies.
7. Ext. P1 first information statement was given by PW 1 within 4 1/2 hours of the incident. He gave the statement as if it is a clear case of murder by throwing into the river unmindful of the cry that he should be spared because he did not know swimming. That was his impression and that could be easily explained as the statement of a brother, who saw his brother being forcibly put into the river. It is only his opinion. In Ext. P1, he implicated only accused 1 to 3. That also fits in with the prosecution case and its evidence through PWs 5, 6 and 7 that accused 1 to 3 alone chased and caught the deceased and brought him to the bridge. Prosecution case and the evidence of PWs 5, 6 and 7 is that accused 4 and 5 and Santhosh were swimming in the river at that time and they joined others on the bridge only when the deceased was brought there by accused 1 to 3. Probably PW 1 might not have seen it from the position where he was standing or he might have omitted the same in Ext. P1 in his then mental condition.
8. But, when he gave evidence as PW 1, he was a thoroughly changed man. Change of attitude could be due to his friendship with the accused and his conviction that what they did was only by way of sport, without any intention. He started his evidence as if it is a case of the deceased accidentally falling into the river. But then, probably in view of Ext. P1, he had to say that accused 1 to 3 caught and brought him to the bridge. This is in conformity with Ext. P1 and the evidence of PWs 5, 6 and 7. Then he said that after taking the deceased to the bridge, accused 1 to 3 and 5 only stood near him and without any awareness on their part, fourth accused pushed him from behind disbelieving the version of the deceased that he did not know swimming and thereafter accused 2, 3 and 5 jumped into the river to save him when they realized that the position is dangerous. These facts also, to a certain extent, coincide with the evidence of PWs 5 to 7, but not on all facts.
9. Simply because of the fact that the prosecutor did not seek to declare this witness hostile and confront him with the statements to the contrary contained in Ext. P1, counsel wanted his evidence to be accepted as correct on the whole and the evidence of PWs 5, 6 and 7 to the extent in disagreement with it to be discarded. I am not in a position to agree. Any reasonable and prudent public prosecutor, familiar with the case, could be expected to have attempted to discredit PW 1 by seeking permission to declare him hostile and confronting him with the contrary statements in Ext. P1. It is true that Ext. P1 is not substantive evidence and it could be used only for contradicting and corroborating the maker, whose evidence in court alone is the substantive evidence. But the omission of the public prosecutor to discharge his duty properly by allowing the evidence of PW 1 to go unchallenged cannot act as a ground to discredit the veracity of PWs 5, 6 and 7, if their evidence is otherwise acceptable. Otherwise, the position will be that the actions or inactions of a public prosecutor could decide the fate of a case.
10. I have scanned the evidence of PWs 5, 6 and 7 very carefully. They are impartial witnesses, who had absolutely no reason to perjure in spite of the fact that PW 5 is a brother of the deceased. They are friends of the accused. Except some minor differences in the manner and method, in which the deceased was caught and brought by accused 1 to 3 to the bridge, their evidence in that respect is uniform and it fully agrees with that of PW 1 also. All of them said that the deceased first escaped from the clutches of accused 1 to 3 and then he was chased and caught. Difference is only on the questions whether the escape was on the pretext of dhothi being loosened or whether second accused alone caught him first and others joined him later or all of them together caught him. Another discrepancy is the evidence that Santhosh took out the coins and watch from the deceased. These are all minor aspects. Anyhow, the uniform evidence of PWs 1 and 5 to 7 is that in spite of his resistance and request that he did not know swimming, he was chased and caught and brought to the bridge in order to force him to join them for swimming.
11. Main ground, on which the appellants wanted to discredit the prosecution case supported by the evidence of PWs 5, 6 and 7 that all the accused together put him into the river, is the statement of PW 1 that fourth accused alone pushed him and Exts. D3, 6 and 9 case diary statements of PWs 5, 6 and 7 that fifth accused alone pushed him into the river. In the box, PWs 5, 6 and 7 said that all the accused joined in putting him.
12. Even when truthful witnesses give evidence, there can be contradictions on minor aspects on account of differences in powers of perception, memorisation and narration. There can be some conscious or unconscious bias influencing the narration. Anyhow, on broad facts, there is no difference. Whether actually all of them jointly put the deceased into the river or only one of them pushed him, the evidence is that the act of putting him into the river was the common intention of all and all the accused, including Santhosh, who were present at the scene of occurrence, and who participated in the acts in furtherance of that common intention, one way or other. Accused 1 to 3 chased and caught him and brought him to the bridge by force, whether it be by bodily lifting or pushing or dragging him. At that time, others also came to the bridge and the deceased was put into the river in furtherance of the common intention. Common intention, as seen from the evidence of these witnesses, was enjoyment in seeing an unwilling friend was forced to take his bath. Such a common intention was not seriously disputed by the accused also. Therefore, the discrepancies and contradictions do not in any way affect the core of the evidence of these witnesses.
13. Even though what the accused in-tended was only a sport and not commission of any offence, act of putting an unwilling friend, who did not know swimming, into the deep fast flowing river is a criminal act. When such a criminal act is done, furtherance of the common intention, each of the persons, who shared the common intention and were present and participated in the action in one form or other, active or passive, must be held responsible with the aid of Section 34 of the Penal Code. I do not think that any question of unlawful assembly or rioting is involved. There cannot be any common object or common intention to commit murder. What is involved is only a common intention of wrongful restraint for an amusement to put the deceased into water. Though he was put into water without intending to kill him, they must be fixed with the knowledge that by their act, they were likely to cause his death, even, though they might have thought that in an emergency they could try to save him. This is evidently a case in which death was caused by doing an act with the knowledge that by such act, they were likely to cause the death of Promod. It is only common knowledge that if a man, who does not know swimming, is put into such a deep water with forcible current he is likely to die by drowning. In an extreme case, the act could even come under the fourth part of Section 300 of the Penal Code, if the persons committing the act in furtherance of their common intention knew that it must in all probability cause death or such injury as is likely to cause death. Even though the act done in this case was also imminently dangerous involving the probability of death, I do not think that the fourth part of Section 300 is attracted. Evidence is that they thought of saving him in case of emergency, a possibility which may not always be in their capacity. They attempted to save him and failed. Therefore, they need only be fixed with the knowledge of the likelihood attracting the last part of Section 299 of the Penal Code, as was rightly done by the Sessions Judge.
14. In this context, two questions may arise. One is whether Section 34 could be applied when Section 149 alone is alleged and the other is whether common intention could be attributed for an act which does not require intention but only knowledge. It is always proper for a fair trial. that even in cases involving vicarious liability, the accused is specifically informed of the nature of charge that he has to answer. But Section 34 does not create a substantive offence. It is only a rule of evidence to assess criminality. When unlawful assembly and common object were not alleged, but Section 34 alone was invoked, conviction with the aid of Section 149 may be illegal. Membership of an unlawful assembly itself is a substantive offence, for which there must be a charge and in order to fix constructive liability under Section 149, the act must be proved to be in prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Both sections deal with constructive criminal liability. In a case where the aid of Section 149 alone was invoked and Section 34 was not alleged, if unlawful assembly and common object are found against, conviction with the aid of Section 34 will be legal if the evidence discloses that the acts were done by the accused in furtherance of their common intention. In such cases, normally there may not be any question of prejudice resulting. An offence punishable under the second part of Section 304 of the Penal Code does not require any intention to cause death or intention to cause such bodily injury as is likely to cause death. What is required is only knowledge of the likelihood of death. That does not mean that for that reason, Section 34 is excluded. Knowledge is only regarding the possible result of the act. Every act is done with an intention which can take in common intention also. An act done with common intention even if it is done without the intention to bring about the particular result but only with the knowledge of the likelihood of that result happening can also attract Section 34. Each of the persons could have had such knowledge when they were doing the act. Common intention required for the application of Section 34 is only the common intention of perpetrating the act. When common intention along with knowledge available is taken into account, Section 34 is attracted (see Afrahim Sheikh v. State of West Bengal, AIR 1964 SC 1263 : (1964 (2) Cri LJ 350)). In this case, common intention was to put the deceased into the water with the knowledge that it is likely to result in his death. Offences under Section 341 and the second part of Section 304 with the aid of Section 34 of the Penal Code are evidently made out.
15. An attempt was then made to contend that what is involved is only an offence punishable under Section 304-A of the Penal Code as it could only be said to be a rash or negligent act. I am not able to agree. As held in Afrahim Sheikh's case, AIR 1964 SC 1263: (1964(2) Cri LJ 350), causing death by doing an act accompanied by the intention in two ways described in Section 299 of the Penal Code or with the knowledge that the act is likely to cause death, which is also described there, could be distinguished from cases of deaths resulting from accident or rashness. Distinction between killing by rash or negligent act and cuplable homicide not amounting to murder will have to be appreciated. Section 304-A, by its definition, excludes culpable homicide, which involves mens rea in the form of intention, knowledge or reasonable belief. Section 304-A has no application where inention to cause death or knowledge that the act done will likely or in all probability cause death is there. Section 304-A applies only to cases where death is caused by a rash or negligent act without any intention or knowledge. A positive intentional act with the knowledge of the consequences cannot attract Section 304-A. In an offence coming under Section 304-A, question is whether the rash or negligent act was the causa causans, i.e. the proximate and efficient cause of death, whereas in culpable homicide, question is whether the act was the causa sine qua non, i.e. the cause without which the thing cannot occur. Negligence is breach of duty imposed by law to be careful. Rashness is a specie of which negligence is the genus. A rash act is a negligent act done precipitatedly. It is hazarding a risk. Negligence is acting without the awareness that the harmful or mischievous consequences will follow. In rashness, even though the consciousness may be there, what is involved is only running a risk with the hope that such consequences will not follow. I do not think that Section 304-A is in any way attracted.
16. Further, in this case, conviction under Section 304-A without a charge is not possible also. Section 22 of the Code of Criminal Procedure cannot be attracted because Section 304-A is not a minor offence constituting only some of the several particulars of the major offence punishable under the second part of Section 304. Both are independent and mutually exclusive offences. So also, this is not a case in which Section 221 of the Code could be attracted. There is no question of any doubt regarding the offence which the facts will constitute. In a charge for an offence under Section 302 or 304, it is not possible to enter conviction for an offence under Section 304-A without a charge under that section. That is clear from the illustrations also. Section 221 is applicable only in cases where a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute.
17. It is, therefore, clear from the evidence that the appellants committed only offences punishable under Sections 341 and 304(2) of the Penal Code in furtherance of their common intention. On the question of sentence, I feel that they deserve sympathy. The deceased was their friend and they never intended to kill him. What they intended was a sport and they attempted to save him also though it was beyond their reach. In the circumstances, I feel that the ends of justice will not suffer by reducing the sentence of imprisonment for the offences under Section 304(2) to three months, provided a sentence of fine of Rs. 5,000/- each is also added.
Criminal appeal is partly allowed. Convictions and sentences for the offences under Sections 143 and 147 are set aside and the appellants are acquitted of those charges. Convictions for the offences under Sections 341 and 304(2) and the sentences of imprisonment for the offence under Section 341 are confirmed and the appeal is dismissed to that extent. Appeal is allowed to the extent of reducing the sentence of imprisonment for the offence under Section 304(2) from rigorous imprisonment for five years each to rigorous imprisonment for three months each, with a fine of Rs. 5000/- also to each of the appellants. In case of default of payment of fine, each of appellants will suffer rigorous imprisonment for nine months more. Substantive terms of imprisonment will be suffered concurrently. Fine, if realised, will be paid to the dependents of the deceased, other than, PW 1, by way of compensation.