Kerala High Court
Manikuttan @ Sajay vs State Of Kerala on 14 August, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934
CRL.A.No. 251 of 2009 ( )
-------------------------
SC.256/2004 of ADDL. SESSIONS COURT FAST TRACK NO.II(ADHOC 2), THRISSUR
CP.11/2004 of J.M.F.C.-II,THRISSUR
APPELLANT(S)/A2 TO A6:
----------------------
1. MANIKUTTAN @ SAJAY
MANIPARAMBIL(H),THRITHALLUR WEST DESOM
VATANAPPILLY VILLAGE.
2. PRAVEEN, S/O.PARAMESHWARAN,(A3)
IYNIPULLY HOUSE, THRITHALLUR WEST DESOM
VATANAPPILLY VILLAGE.
3. HIBIN, S/O.REGHUNATHAN,CHALIPATTU HOUSE,
(A4)THRITHALLUR WEST DESOM,VATANAPPILLY VILLAGE.
4. SUJITH,S/O DHARMAN,MANIPARAMBIL HOUSE,
(A5)THRITHALLUR WEST DESOM,VATANAPPILLY VILLAGE.
5. MANOOP, S/O.SURENDRAN,PALLISSERY HOUSE,
(A6)THRITHALLUR WEST DESOM, VATANAPPILLY VILLAGE.
BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.SHAJIN S.HAMEED
RESPONDENT(S)/COMPLAINANT:
--------------------------
STATE OF KERALA
OF POLICE, THRISSUR TOWN WEST.
BY ADV. PUBLIC PROSECUTOR K K RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2012,
ALONG WITH CRL.A.651 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.SASIDHARAN NAMBIAR &
P.BHAVADASAN,JJ.
---------------------------------------------
Crl.A. Nos.251 & 651 of 2009
---------------------------------------------
Dated 14th August, 2012
JUDGMENT
'CR' Sasidharan Nambiar, J Appellant in Crl.A.No.651 of 2009 is the first accused and appellants in Crl.A.No.251 of 2009 are accused 2 to 6 in S.C.No.256 of 2004 on the file of Additional Sessions Court, Fast Track-II, Thrissur. They faced trial for the offences under Section 143, 147, 148, 341 read with Section 149, 324 read with Section 149 and 302 read with Section 149 of Indian Penal Code. Learned Sessions Judge convicted the first accused for the offences under Section 143, 148, 341, 324 and 302 read with Section 149 of Indian Penal Code and accused 2, 3, 4 and 6 for the offences under Section 143, 147, 341 and 324 read with Section 149 of Indian Penal Code and 5th accused for the offences under Section 143, 148, 341 and 324 read with Section 149 of Indian Penal Code. First accused was sentenced to rigorous imprisonment for life and a fine of Crl.a.251 &651/2009 2 Rs.25000/-, and in default, rigorous imprisonment for one year for the offence under Section 302 read with Section 149 of Indian Penal Code , rigorous imprisonment for one year for the offence under Section 148 of Indian Penal Code, rigorous imprisonment for six months for the offence under Section 143 of Indian Penal Code, rigorous imprisonment for one year and a fine of Rs.2000/- and in default simple imprisonment for six months for the offence under Section 324 read with Section 149 and simple imprisonment for one month for the offence under Section 341. Fifth accused was sentenced to rigorous imprisonment for six months for the offence under Section 143, rigorous imprisonment for one year for the offence under Section 148, simple imprisonment for one month for the offence under Section 341 read with Section 149, rigorous imprisonment Crl.a.251 &651/2009 3 for one year and a fine of Rs.2000/- and in default simple imprisonment for six months for the offence under Section 324 read with Section 149 of Indian Penal Code. The remaining accused were sentenced to rigorous imprisonment for six months for the offence under Section 143, rigorous imprisonment for six months for the offence under Section 147, simple imprisonment for one month for the offence under Section 341 read with Section 149, rigorous imprisonment for one year and a fine of Rs.2000/- and in default, simple imprisonment for six months each for the offence under Section 324 read with Section 149. Appeals are filed challenging the conviction and sentence.
2. Prosecution case is that on the Onam day of 2001, viz, 31.8.2001, PW1 Sampath, PW2 Raphi, PW5 Rineesh, deceased Baiju and one Jijesh had gone to Brahmakulam Theatre to see Crl.a.251 &651/2009 4 the movie "Parakkum Thalika" for the second show. They reached the Theatre by about 8.20 pm. They deputed Jijesh to stand in the queue to purchase tickets for them. PW1, PW2 and the deceased waited away from the ticket counter at the exit point for the return of Jijesh with the tickets. While so, the accused came there and attempted to enter the place where the ticket counter is situated, circumventing the queue. Deceased Baiju prevented them, objecting the attempt to purchase ticket other than by standing in the queue and thereby made their attempt futile. This infuriated the accused. Jijesh could not purchase the tickets as the ticket counter was closed before he could reach the ticket counter. By that time, the accused approached Baiju and others. Accused formed an unlawful assembly with the common object of attacking Baiju and others to teach them a Crl.a.251 &651/2009 5 lesson. Fifth accused with a reaper attacked Baiju and when he evaded it, it fell on the thigh of PW1. First accused took MO1 knife from his waist and inflicted injuries on the chest and neck of Baiju, who sustaining the injuries, proceeded towards the verandah with the bleeding injuries. First accused with MO1 knife then inflicted an injury on the left thigh of PW1. The other accused attacked PW2 and PW5 and caused hurt. First accused with Mo1 knife inflicted injury on PW2 while he was wrongfully restrained by the second accused. The accused thereafter ran away from the spot. The injured Baiju and PW2 were taken to the Hospital. On examination, Baiju was reported dead. PW1 furnished Ext.P1 F.I.Statement which was recorded by PW15, the S.I of Police, Anthikad Police Station on reaching the West Fort Hospital, on getting information that in an Crl.a.251 &651/2009 6 incident at Brahmakulam Theatre, the injured are admitted in the hospital. Under Ext.P1(a) FIR, PW15 registered crime No.318 of 2001 under Sections 143, 147, 148, 324 and 302 read with Section 149 of Indian Penal Code. PW17 Circle Inspector took over the investigation. On his instructions, PW15 prepared Ext.P2 inquest report and seized Mos 9 to 12 found on the body and forwarded the body to Medical College Hospital, Thrissur for post mortem examination. PW11, the Associate Professor of Forensic Medicine, Thrissur conducted the autopsy and prepared Ext.P9 Post Mortem Certificate. PW17 prepared Ext.P3 scene mahazar and seized Mo2 reaper from the scene of occurrence. Pws 1 and 2 the injured were examined by PW10 Dr.Ravindran on 31.8.2001 at 9.45 pm and prepared Ext.P7 and Ext.P8 wound certificates and admitted them in West Fort Crl.a.251 &651/2009 7 Hospital as in-patients. PW17 seized Mos 5 to 9 dresses worn by Pws 1 and 2 under Ext.P4 and P20 mahazars. The accused 1,2, 3, 5 and 6 were arrested on 15.10.2001. On Ext.P23 information furnished by the first accused, under Ext.P5 recovery mahazar, MO1 knife was recovered in the presence of PW9, one of the attesting witnesses. The Mos.3 and 4, dresses worn by him at the time of the incident were recovered under Ext.P6 recovery mahazar on Ext.P24 information furnished by him. Mos.14 to 21, the dresses worn at the time of the incident by the other accused were recovered under Ext.P13 to P16 mahazars. The fourth accused was arrested by PW16, the Successor Circle Inspector who took over the investigation on 30.3.2003 after he surrendered before the Investigating Officer. PW17 submitted Ext.P26 forwarding note to send the Mos for chemical Crl.a.251 &651/2009 8 examination and obtained Ext.P19 report. After completing the investigation, PW16 laid the final report before Judicial First Class Magistrate -II, Thrissur, who committed the case to the Sessions Court. Learned Sessions Judge made over the case to Additional Sessions Court for trial. When the charge for the offence under Section 143, 147, 148, 341, 324 and 302 read with Section 149 of Indian Penal Code was framed and read over and explained to the accused, they pleaded not guilty. Prosecution examined 17 witnesses, marked 27 exhibits and identified 21 material objects. After closing the prosecution evidence, when the accused were questioned under Section 313 of Code of Criminal Procedure, they denied the incriminating evidence put to them and contended that they were not involved in the incident at all. It was contended that they had Crl.a.251 &651/2009 9 not gone to the Theatre on that day or inflicted injuries on the deceased or Pws 1 or 2 or 5 and they are innocent. Though learned Sessions Judge called upon the accused to enter on their defence and adduce evidence, they did not adduce any defence evidence. Learned Sessions Judge thereafter on the evidence, held that though all the accused are members of an unlawful assembly and the common object of the assembly initially was to teach the deceased and his friends a lesson and accused 2 to 6 were unaware of the knife, in the possession of the first accused or that he will inflict injury with the knife on Baiju and there was no common object for causing the death of Baiju. Learned Sessions Judge further found that first accused inflicted injuries on the chest and neck of Baiju and caused his death, proved by the evidence of PW11 and Ext.P9 Post Mortem Crl.a.251 &651/2009 10 Certificate. Learned Sessions Judge also found that those injuries are sufficient in the ordinary course of nature to cause death. As it was found that the common object was not to cause the murder of Baiju and the death of Baiju was caused by the injuries inflicted by the first accused, it was found that first accused is liable for the murder. Learned Sessions Judge accepted the evidence of Pws 1, 2 and 5 as to how they, along with the deceased, reached the scene of occurrence and how they were attacked by all the accused. Learned Sessions Judge further found that after the first accused inflicted injuries with Mo1 knife on the deceased, the other accused were aware that the first accused was armed with Mo1 knife and it is likely that he would use the said knife against Pws 1 and 2 and as the first accused inflicted injuries, with Mo1, on Crl.a.251 &651/2009 11 PW1 and PW2, accused 2 to 6 are also constructively liable for the acts of the first accused. Learned Sessions Judge therefore convicted the first accused alone for the offence under Section 302 read with Section 149 and the other accused for other offences as stated earlier. The conviction and sentence are challenged in these appeals.
3. Learned counsel appearing for the appellants and learned Public Prosecutor were heard. Learned counsel appearing for the appellants vehemently argued that there is unexplained delay in reaching Ext.P1(a) FIR before the learned Magistrate and the delay is fatal. It was argued that the delay was due to the deliberations to project a false story and therefore the very foundation of the prosecution case has to fall. Ext.P1 F.I.Statement of PW1 was recorded by PW15 on Crl.a.251 &651/2009 12 31.8.2001 at about 10.30 pm. The incident occurred at about 9.15 pm on the same day. As the deceased sustained fatal injuries, he along with Pws 1 and 2 were taken to West Fort Hospital. Baiju succumbed to the injuries, by the time he reached the hospital. PW15 on getting the information about the incident reached the hospital and recorded Ext.P1 F.I.Statement of PW1 at 10.30 pm. In such circumstances, it cannot be said that there was any delay in recording the F.I.Statement. Based on Ext.P1 F.I.Statement, PW15 registered the crime, after preparing Ext.P1(a) FIR at 11.30 pm. As PW15 had recorded Ext.P1 F.I.Statement from the Hospital and had to return back to the Police Station to register the case, there was no delay in registration of the crime.
4. Ext.P1(a) shows that the FIR reached the Crl.a.251 &651/2009 13 learned Magistrate at his residence at 6.30 pm on 1.9.2001. 31.8.2001 was a public holiday being Onam day. 1.9.2001 is also a public holiday being the day of 3rd Onam. In such circumstances, as the FIR was recorded by the learned Magistrate at his residence at 6.30 pm it cannot be said that there was delay in reaching the FIR before the Magistrate. In such circumstances,the argument based on the delay, either in preparing Ext.P1 or Ext.P1(a) or reaching the F.I.R before the learned Magistrate as canvassed by the learned counsel is without substance.
5. The fact that Pws 1 and 2 sustained injuries at Brahmakulam Theatre on the night of 31.8.2001 at 9.45 pm is proved by their evidence as well as the evidence of PW10 and Ext.P7 and Ext.P8 wound certificates. In fact when Pws 1 and 2 were cross examined by the Crl.a.251 &651/2009 14 defence counsel, the fact that they sustained injuries at the time and place deposed by them were not disputed. The evidence of Pws 1 and 2 establish that Baiju also sustained injuries in the same incident and though injured Baiju was taken to the Hospital, by the time he reached the Hospital, he had breathed his last. There was no dispute regarding the said fact also. The evidence of PW11, the Assistant Professor with Ext.P9 Post Mortem Certificate establish that when PW11 conducted the autopsy on 1.9.2011 between 12.30 am and 1.30 pm, the following ante mortem injuries were found.
" 1. Incised penetrating wound over front of neck with skin part 'L' shaped with longer upper oblique limb 5cm long across midline with upper right end 1 cm outer to midline and 2 cm above collar bone and the other limb 1 cm long downwards from left end of former, ends being sharp cut, coursing downwards, inwards and leftwards for 3 cm cutting muscles, nerves and vessels and 6th and 7th cartilage Crl.a.251 &651/2009 15 rings (3cm long) to open into trachea. Other soft tissues, hyoid bone, cartilages and vertebrae of neck in tact.
2. Contused abrasion 0.5 x 0.5 cm over back of right elbow.
3. Superficial linear incised wound 2 cm long oblique over left side of front of abdomen with upper outer end 21 cm below nipple at 6 '0 clock position.
4. Contused abrasion 4 x 0.5-3 cm oblique over back of left upper arm with wider lower inner end 7 cm above wrist.
5. Incised wound 4 x 1.5 x 1cm transverse over inner aspect of left forearm 6.5 cm above wrist cutting muscles, nerves, and ulnar artery.
6. Incised penetrating wound with skin parts, 4 cm long oblique over right side of front of chest with upper sharp cut end 4 cm vertically below nipple, the other end 1 cm wide, coarsing upwards, backwards and inwards for 6 cm to open into right chest cavity through 5th intercostal space cutting muscles, nerves, vessels and pleural. Right lung 380g collapsed with two incised wounds 3.5 cm long each 0.3 cm deep each of outer aspect of middle and lower lobes vertical one below the other and 1 cm apart left lung (320g) pale. 1200cc fluid blood and 2 handfuls of reddish blood clots in right chest cavity".Crl.a.251 &651/2009 16
6. The evidence of PW11 establish that the death of Baiju was caused by the injuries inflicted on his neck and chest apart from the injuries inflicted on the left forearm viz injuries 1, 5 and 6. The 6th injury shows that it penetrated into the right chest cavity, through 5th intercostal space and entered the outer aspect of middle and lower libs of left lung and that injury independently is sufficient in the ordinary course of nature to cause death. So also, the evidence of PW11 establish that the 5th injury, which resulted in cutting the ulnar artery on the wrist is also sufficient in the ordinary course of nature to cause death. On the evidence, learned Sessions Judge rightly found that Baiju died due to the injuries sustained on his neck, chest and left forearm and those injuries are independently Crl.a.251 &651/2009 17 sufficient in the ordinary course of nature to cause death.
7. The crucial question is how the deceased, Pws 1 and 2 sustained the injuries. The evidence of PW1, PW2 and PW5 was accepted by the learned Sessions Judge. Their evidence show that along with the deceased Baiju and Jijesh, they had gone to the Theatre at Brahmakulam to see the second show of the movie "Parakkum Thalika" and they reached the Theatre before the first show was over. One has to purchase the ticket by standing in the queue. They deputed Jijesh to stand in the queue and to purchase tickets for all of them. Their evidence is that while Baiju, Pws1 and 2 and others were standing away from the counter at exit point, all the accused attempted to enter through that way to reach the ticket counter to purchase tickets, by circumventing the queue. Crl.a.251 &651/2009 18 Baiju prevented it by causing obstruction. Therefore the accused had to retreat. They retreated holding out a threat. Evidence of Pws1, 2 and 5 show that though Jijesh was standing in the queue, he did not get the tickets as the sale of tickets was closed, while two persons standing before Jijesh could reach the ticket counter. It is their case that, all the accused in prosecution of their common object, together approached Baiju and others. The evidence establish that all the accused had grievance against deceased Baiju and his friends Pws 1, 2 and 5 as they were under the impression that if they did not cause obstruction, they would have obtained the tickets and seen the movie. The evidence establish that they on that account decided to teach the accused a lesson by attacking them. Learned Sessions Judge on the evidence was Crl.a.251 &651/2009 19 right in finding that all the accused together formed an unlawful assembly with the common object of teaching Baiju and others a lesson and in furtherance of their common object, they attacked Baiju and others. The evidence of PW1, PW2 and PW5 establish that 5th accused, with Mo2 reaper, hit on Baiju and when he evaded it, it fell on the thigh of PW1. First accused then all of a sudden took out Mo1 knife from his waist and inflicted injuries on the neck and chest of Baiju, causing bleeding injuries, and the injured Baiju moved towards the Verandah. At that point of time, first accused using the same knife, inflicted injury below the right knee of PW1. The evidence of PW10 with Ext.P8 wound certificate corroborates the said injury sustained by PW1. The evidence of PW1 is further corroborated by the evidence of PW2 and PW5.
Crl.a.251 &651/2009 20
8. The evidence of Pws 1, 2 and 5 further shows that by that time PW2 was caught by A4 and A6 and was wrongfully restrained and while so, first accused inflicted injury on his chest with the same knife. The evidence of Pws 1 and 5 and PW2, who sustained the said injury, is further corroborated by the evidence of PW10, the doctor, and Ext.P7 wound certificate. The evidence of PW5 and PW1 also corroborates the evidence of PW2 as to how he sustained the injury. The evidence of Pws 1, 2 and 5 also establish that accused 2, 3 and 4 had participated in the acts of restraining PW2 and enabling the first accused to inflict the injuries. On appreciating the evidence of Pws 1,2 and 5, we find no reason to differ with the view taken by learned Sessions Judge that their evidence is trustworthy, credible and reliable.
9. The argument of the learned counsel Crl.a.251 &651/2009 21 appearing for the appellants is that in Ext.P1, the name of the accused is not mentioned and except the colour of the shirt worn by the first accused, which is different from Mo3 shirt identified at the time of evidence, no other identifiable mark of any of the accused was given by PW1. It was argued that evidence of Pws 1, 2 and 5 show that they identified the accused only after their arrest by PW17 and no test identification parade was conducted and when Pws 1, 2 and 5 have no case that accused were previously known to them, without a test identification parade, their identification from the box should not have been accepted. Learned counsel relied on the decision of Apex Court in Jadunath Singh V. State of U.P(AIR 1971 SC 363) and argued that identification of the accused by Pws 1, 2 and 5 for the first time from the witness box should not have been Crl.a.251 &651/2009 22 accepted and if that be so, based on their evidence, appellants cannot be convicted.
10. Learned Public Prosecutor relied on the decisions of Apex Court in Malkhansingh and others V. State of Madhya Pradesh (AIR 2003 SC 2669), Sheo Shankar Singh V. State of Jharkhand (AIR 2011(3) SC 654), and Jarnail Singh V. State of Punjab (AIR 2009(9) SC 719) and argued that the substantive evidence is the evidence of Pws 1, 2 and 5 identifying the accused from the box and the fact that no test identification parade was conducted is not fatal to the prosecution case and when the evidence of Pws 1, 2 and 5 are credible and trustworthy, there is no reason to disbelieve their evidence or to doubt the correctness of the identification.
11. The Honourable Supreme Court in Jadunath Singh's case (supra) considered the Crl.a.251 &651/2009 23 necessity for a test identification parade, when the accused are not known to the prosecution witnesses previously. The two Judge bench considered the necessity for a test identification parade and held in paragraph 18 as follows:-
" 18. It seems to us that it has been clearly laid down by this Court in Criminal Appeal No.92 of 1956, D/-15-1-1957 (SC) that the absence of test identification in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification.
Of course, if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eye-
witnesses did not know him
previously. It may be that there
is no express provision in the
Crl.a.251 &651/2009 24
Code of Criminal Procedure
enabling an accused to insist on an identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above the prosecution will, unless there is some other evidence, run the risk of losing the case on this point".
12. It is now fairly well settled that identification of the accused in court by the witnesses constitute the substantive evidence. Even if such identification is for the first time, at the trial, for that reason alone, the evidence cannot be ignored. Code of Criminal Procedure does not oblige the Investigating Agency to hold a Test Identification Parade. There is no provision enabling an accused to claim a right to hold a Test Identification Parade. Conduct of Test Identification Parade Crl.a.251 &651/2009 25 is within the realm of the investigation and not part of the trial. The failure of the Investigating Agency to hold a Test Identification Parade does not have the effect of weakening their evidence of identification of the accused in court. As to what weight should be attached to such identification is a matter which the court will determine in the peculiar facts and circumstances of each case. Supreme Court in Malkhansingh and others V. State of Madya Pradesh(2003(5) SCC 746) considered the necessity for conducting a Test Identification Parade and held thus :-
" 7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general Crl.a.251 &651/2009 26 rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character.
The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Crl.a.251 &651/2009 27 Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact.
In appropriate cases, it may
accept the evidence of
identification even without
insisting on corroboration. (See Kanta Prashad V. Delhi Administration(AIR 1958 SC 350), Vaikuntam Chandrappa V. State of A.P(AIR 1960 SC 1340),Budhsen V. State of U.P(1970 (2) SCC 128) and Rameshwar Singh V. State of J & K (1971(2) SCC 715)".
The position has been considered again in Pramod Mandal V. State of Bihar (2004(13) SCC
150). It was held:-
"20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test Crl.a.251 &651/2009 28 identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness ? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification".
13. In the light of the settled law, we cannot agree with the submission of the learned counsel appearing for the appellants that as no Test Identification Parade was conducted, the Crl.a.251 &651/2009 29 identification made by Pws 1, 2 and 5 from the witness box, which is the substantive evidence, cannot be accepted. The acceptability of identification of the accused by Pws 1, 2 and 5 from the witness box depends on the trustworthyness and reliability of the evidence of Pws 1, 2 and 5. The evidence of Pws 1, 2 and 5 establish that they had sufficient opportunity to note the features of the accused, who inflicted fatal injuries on Baiju, their friend, and also inflicted injuries on Pws 1 and 2. Even though those features of the accused were not dislcosed in Ext.P1 F.I.Statement or in their statements recorded under Section 161 of Code of Criminal Procedure, for that reason, we cannot agree with the submission that their identification of the accused from the witness box is to be eschewed or disbelieved. When the first accused Crl.a.251 &651/2009 30 inflicted fatal injuries on one of their friends and caused his death and also inflicted injuries on Pws 1 and 2, being the persons who sustained injuries and having sufficient opportunity to see and note the features and identity of the first accused, Pws 1 and 2 are definitely capable of identifying him. Even though no Test Identification Parade was conducted earlier, it is to be accepted. On the evidence, we are fully satisfied that identification of not only the first accused, but accused 2 to 6 by PW1, from the box is trustworthy and reliable. That exactly is the case with the identification of the accused by Pws 2 and 5. In the light of the evidence of Pws 1, 2 and 5, we have no hesitation to hold that identity of all the accused is established. It is also proved that all of them formed an unlawful assembly and attacked Crl.a.251 &651/2009 31 deceased Baiju and also Pws 1 and 2 and inflicted injuries on them, in furtherance of the common object.
14. Though learned Sessions Judge has relied on the recovery of Mo1, based on the evidence of PW17 and PW9, on the evidence, we find it difficult to accept the said findings. PW9 is admittedly a resident about 20 kms away from the place of recovery. The explanation of PW9 for his presence at the scene of recovery is that he was asked by the father of the deceased Baiju to go to the police station to enquire, as there was a news that the accused were arrested. According to PW1, he therefore proceeded to the police staion and on reaching there, he was informed that first accused was arrested and he was taken to the scene of occurrence for effecting recovery. PW9 claimed that he proceeded to the spot and found the Crl.a.251 &651/2009 32 police jeep parked, and he saw the first accused and the police officer and the recovery being effected and at the scene, he affixed his signature in Ext.P5 recovery mahazar. It is difficult to swallow the said evidence. First of all, when prosecution has no case and even PW9 did not claim that he has previous knowledge about the identity of first accused, no purpose will be served by sending PW9 to the Police Station on getting news that first accused was arrested. One could appreciate the case if at least PW9 has a case that first accused was previously known to him. At best, it could be said that father of the deceased wanted to get an assurance that the culprits were arrested. If that is believed, and on request by the father of the deceased, PW9 had proceeded to the police station and got the assurance that first accused was arrested, Crl.a.251 &651/2009 33 there was absolutely no necessity for PW9 to follow the first accused or the police party and that too, travelling a distance of 7 km as deposed by PW9, to witness the recovery. When PW9 was asked whether people had gathered at the scene of recovery, the answer given was that he was not aware. If PW9 was present at the scene of recovery, he would definitely be aware whether people had gathered or not. The question whether how many people gathered there is a different aspect. When PW9 deposed that he was not aware, whether people had gathered at the scene of recovery, it is clear that PW9 was not present there. Though PW17 claimed that he effected recovery based on the information furnished by the first accused, and recovered Mo1, none of the residents of the locality were made attesting witnesses to Ext.P5 recovery mahazar. In such circumstances, we find it Crl.a.251 &651/2009 34 difficult to accept the recovery spoken to by PW17. Though Ext.P19, the report of Chemical examination reveal that human blood was detected in Mo1 when it was forwarded to the Laboratory and examined, Ext.P5 recovery mahazar does not show that at the time of recovery, there was no trace of blood in Mo1. Mo1 claimed to have been recovered on 15.10.2001, was produced before the court only on 23.10.2001. In such circumstances, even though the report of the chemical analysis reveal that human blood was present in Mo1, based on that fact alone, it is not possible to hold that it was Mo1 knife, which was used by the first accused to inflict the injuries on deceased Baiju and caused his death. But evidence of Pws 1, 2 and 5 conclusively establish that first accused was having in his possession a knife which he took from his waist Crl.a.251 &651/2009 35 and inflicted injuries on the neck and chest, with that knife.
15. Then the question is what are the offences proved against the accused. Learned Sessions Judge found that the common object of the unlawful assembly was not causing the death of Baiju and first accused inflicted the injury with the knife on Baiju all of a sudden, and the other accused were not even aware that first accused was having in his possession a knife much less knew that he will inflict the fatal injuries. On the evidence, we find the said finding absolutely correct. The evidence of Pws 1, 2 and 5 establish that though all the accused joined together and decided to teach a lesson to Baiju and others, first accused all of a sudden took out a knife from his waist and inflicted injuries on the neck and chest of Baiju. Those injuries are proved to be Crl.a.251 &651/2009 36 sufficient in the ordinary course of nature to cause death. The evidence of PW11 proves that those injuries caused the death of Baiju. Similarly, the evidence establish that though accused 2 to 6 were unaware of the knife in the possession of the first accused initially, after first accused had taken out the knife and inflicted the injuries on deceased Baiju, accused 2 to 6 did not leave the spot and continued in attacking Pws 1, 2 and 5. Evidence establish that accused 3 and 6 wrongfully restrained PW2 and enabled the first accused to inflict the injury on the chest of PW2, proved by the evidence of PW10 and Ext.P7 wound certificate. The common object of the unlawful assembly could definitely be developed on the spot also. Therefore, even though initially there was no common object of causing injury on the deceased or Pws 1 and 2, with a dangerous Crl.a.251 &651/2009 37 weapon like knife, it is clear that after the first accused inflicted the injuries on Baiju, the common object was developed by the members of the unlawful assembly by deciding to inflict injuries on Pws 1 and 2 with a dangerous weapon like Mo1 knife, which was already found to be in the possession of the first accused, with which he has already inflicted the injuries on the deceased. In such circumstances, learned Sessions Judge was perfectly right in finding that there was an unlawful assembly and though initially the common object of the unlawful assembly was not causing the death of Baiju, later it was developed to include wrongfully restraining PW2 and to inflict the injuries on Pws 1 and 2 with the dangerous weapon. The evidence establish that first accused inflicted the fatal injuries on deceased Baiju, either with the intention to cause his death or to Crl.a.251 &651/2009 38 inflict those particular injuries, which are sufficient in the ordinary course of nature to cause his death. It is also proved that though there was no common object of inflicting those injuries on deceased Baiju and cause his death, the common object was thereafter developed and in furtherance of the common object, first accused voluntarily caused hurt on Pws 1 and 2 with a knife, a dangerous weapon. It is also proved that accused 2 to 6 also participated in the actions by accused 3 and 6 wrongfully restraining PW2 and fifth accused beating PW1 with Mo2 reaper and fourth accused restraining PW5. In the light of the said findings, the finding of the learned Sessions Judge that the accused committed the offences under Section 143, 147, 341 and 324 read with Section 149 of Indian Penal Code is perfectly legal and correct.
Crl.a.251 &651/2009 39
15. But unfortunately, learned Sessions Judge omitted to take note of the fact that he has already found that causing the death of Baiju was not the common object of the unlawful assembly. In such circumstances, first accused could not have been convicted for the offence under Section 302 read with Section 149 of Indian Penal Code. Therefore, to that extent, the conviction of the first accused is not sustainable. The question then is when the charge is for the offence under Section 302 read with Section 149 of Indian Penal Code and the evidence establish that the murder of Baiju was caused by the first accused independently by inflicting injuries on his chest and neck with a knife, whether he could be convicted for the offence under Section 302 simplicitor, without a specific charge for that offence, as the charge is only for the offence under Crl.a.251 &651/2009 40 Section 302 read with Section 149 of Indian Penal Code.
16. Honourable Supreme Court in Nanak Chand V. State of Punjab (AIR 1955 SC 274) considered the question whether there could be a conviction for the offence under Section 302 simplicitor, when the charge was for the offence under Section 302 read with Section 149 of Indian Penal Code. It was held that when there is no separate charge for the offence under Section 302 simplicitor and charge is only for the offence under Section 302 read with 149, the conviction for the offence under Section 302 simpliciter is not sustainable. In that case, charge was for the offence under Section 148 and 302 read with 149 of Indian Penal Code. The Sessions Judge convicted four of the accused under Section 302 read with Section 34 of Indian Penal Code and acquitted Crl.a.251 &651/2009 41 the three others. In the appeal, High Court altered the conviction of the three accused to 323 Indian Penal Code and convicted the other for the offence under Section 302 Indian Penal Code and affirmed his death sentence. Relying on the decisions of Calcutta High Court in Panchu Das V.Emperor (34 Cal 698) and Emperor V. Madan Mondal (AIR 1915 Cal 292) it was contended that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed, if he was acquitted of the offence under that section read with Section 149 of Indian Penal Code. The prosecution relied on the Full Bench decision of the Madras High Court in In re Theethumalai Gounder (AIR 1925 Mad 1). The two Judge Bench of the Supreme Court held that the view taken by the Calcutta High Court is the correct view and a person charged with an Crl.a.251 &651/2009 42 offence read with Section 149, cannot be convicted of the substantive offence without a specific charge being framed as required under Section 233 of Code of Criminal Procedure. It was held.
"14. By framing a charge under S.302, read with S.149, Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under S.302 Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case".
17. In Suraj Pal V. State of U.P (AIR 1955 SC 419), 19 accused were tried for the offences under Section 148, 307 and 302 read with Section 149 of Indian Penal Code. Sessions Court convicted all the accused. In appeal to the High Court, ten accused were acquitted. Crl.a.251 &651/2009 43 Conviction and sentence of one accused was affirmed for the offence under Section 148, 307 and 302. Conviction of the other accused were modified. The sole appellant, whose conviction and sentence was affirmed, approached the Supreme Court by filing Special Leave Petition. Their Lordships held that a charge under Section 149 Indian Penal Code puts the person on notice only of two alleged facts (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or not Section 149 Indian Penal Code creates a distinct offence, there can be no doubt that it creates a distinct head of criminal liability which has come to be known as " constructive liability". Crl.a.251 &651/2009 44 It was therefore held. "There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence". Holding that absence of specific charges against the appellant under Sections 307 and 302 Indian Penal Code in respect of which he was sentenced is a very serious lacuna as framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the foundation for a conviction and sentence. Their Lordships then held that the question is whether the lacuna has prejudiced the appellant in that case. On facts it was found that absence of specific charges under Section 307 and 302 Indian Penal Code has materially prejudiced the appellant.
18. The appeal in Willie Slaney V. State of Crl.a.251 &651/2009 45 Madhya Pradesh(AIR 1956 SC 116) was referred to the Five Judge Constitution Bench, to determine whether there was a conflict of view between Nanak Chand's case (supra) and Suraj Pal's case (supra) and if so to determine it. The facts of the case considered by the Constitution Bench show that the charge was only that "in furtherance of the common intention did commit murder by intentionally or knowingly causing the death" and thereby committed an offence under Section 302 read with Section 34 of Indian Penal Code. The charge does not reveal which of the two accused inflicted the injuries which caused the death. Sessions Court acquitted one of the accused and convicted the other under Section 302 Indian Penal Code. In appeal, High Court confirmed it. What was contended before the Supreme Court was that as the element of common intention is dropped out Crl.a.251 &651/2009 46 by the acquittal of one of the two accused, there cannot be a conviction of the other without a specific charge for the offence.
19. The Constitution Bench held that there was no conflict of views in the two decisions. It was held that the observations in Nanak Chand (supra), have to be appreciated on close examination of facts. It was held:-
"54. Now, it is true that there are observations there which, without close examination, would appear to support the learned counsel for the appellant. But those observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed. It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration, as indeed must always be the case, was that when he was told that he was to be tried under Section 302 read with Section 149 of the Indian Penal Code that indicated to him that he was not being tried for a murder committed by him personally but that he was only being made vicariously liable for Crl.a.251 &651/2009 47 an act that another had done in prosecution of the common object of an unlawful assemly of which he was a member.
But that was only one of the matters considered and it does not follow that every accused will be so misled. It all depends on the circumstances. The entire evidence and facts on which the learned Judges founded are not set out in the judgment but there is enough to indicate that had the appellant's attention been drawn to his own part in the actual killing he would probably have cross-examined the doctor with more care and there was enough in the medical evidence to show that had that been done the appellant might well have been exonerated.
As judges of fact they were entitled and indeed bound, to give the accused the benefit of every reasonable doubt and so were justified in reaching their conclusion on the facts of that case. Illustrations (c) and (e) to section 225 of the Criminal Procedure Code show that what the accused did or omitted to do in defence are relevant on he question of prejudice. If the Court finds that a vital witness was not cross-examined when he might have been, and that if he had been, the further facts elicited might well have been Crl.a.251 &651/2009 48 crucial, then material from which prejudice can be inferred is at once apparent: that is exactly Illustrations (c) and (e).
That, however, was and remains, a pure conclusion of fact resting on the evidence and circumstances of that particular case. The decision was special to the facts of that case and no decision on facts can ever be used as a guide for a conclusion on facts in another case".
Constitution Bench held that Suraj Pal (supra) was a case in which a number of accused were charged under Section 307/149 and 302/149 and the evidence disclosed that the appellant had himself made an attempt on the life of one man and shot dead another and there was no evidence to prove the common intention and hence the High Court convicted him for the offence under Section 307 and 302 Indian Penal Code. It was found that the omission to frame a charge is a seroius lacuna and despite the lacuna the real question is whether that caused prejudice. It Crl.a.251 &651/2009 49 was then held.
"52. It was argued before us that the ground of the decision there was that the absence of charges under Sections 307 and 302 simpliciter was in itself conclusive to establish prejudice and that therefore one need go no further. It is enough to say that that was not the decision and though that was one of the matters taken into consideration, the conclusion was based on a careful and lengthy investigation of all the facts in the case including the way in which it was conducted, the evidence of several witnesses, the medical evidence, the first information report and certain documents including two filed by the accused".
The Constitution Bench held.
"39.In our opinion, sections 233 to 240 deal with joinder of charges and they must be read together and not in isolation.
They all deal with the same subject-matter and set out different aspects of it. When they are read as a whole, it becomes clear that sections 237 and 238 cover every type of case in which a conviction can be sustained when there is no charge for that offence provided there is a charge Crl.a.251 &651/2009 50 to start with.
They do not deal with a case in which there is no charge at all, and anything travelling beyond that when there is a charge would be hit by sections 233, 234, 235 and 239 read as a whole, for the reasons we have just given. But if that is so, and if section 535 is excluded where sections 237 and 238 apply, then what is there left for it to operate on except cases in which there is a total omission to frame a charge ?
We do not think these sections should be regarded disjunctively. In our opinion, they between them ( including sections 535 and 537) cover every possible case that relates to the charge and they place 'all' failures to observe the rules about the charge in the category of curable irregularities. Chapter XIX deals comprehensively with charges and sections 535 and 537 cover every case in which there is a departure from the rules set out in that Chapter.
Such departures range from errors, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. In all these cases the only question is about prejudice.Crl.a.251 &651/2009 51
We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based.
We say it because that accords with logic and principle and reason and because it touches the deep verities on which the structure of justice is erected and maintained".
It was then held.
"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in Crl.a.251 &651/2009 52 adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew that he was being tried for whether the main facts sought to be established againt him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself".
Considering the question of prejudice the Constitution Bench held that when the case is one of murder, the accused is not entitled to be told in the charge how it was committed, whether with a pistol or a lathi or a sword and he is not entitled to know from the charge simpliciter any further circumstance. A question was posed as to how he is then expected to defend himself. It was held that he has the police chalan, the evidence recorded at the committal stage and the evidence of the prosecution witnesses. Their lordships held.
" It is these proceedings that furnish him with all the Crl.a.251 &651/2009 53 necessary, and indeed vital, information, and it is his duty to look into them and defend himself. It will be seen that if the logic of the appellant's contention is carried to its fullest extent the accused could complain of prejudice because, he was not told in the charge whether a pistal was used for the crime or a sword and if a pistol, its calibre and bore and the type of catridge".
Considering the effect of charging two persons with a murder committed in pursuance of a common intention, it was held that " it means that the accused is unmistakably told that he "participated" in the crime; exactly how is no more a matter for the charge than it is to set out the circumstances in which the murder was committed. It also means that it is immaterial who struck the fatal blow". When there was only one fatal blow and only one person could have inflicted it, it can only mean that each is put on his guard and made to realise that the Crl.a.251 &651/2009 54 prosecution alleges that one of the two was responsible for that and which must be discovered from the evidence and not from the charge.
Their Lordships then held :-
"62. It is true that if it cannot be ascertained who struck the fatal blow, then the accused cannot be convicted unless the common intention is proved and in that type of case an acquittal of co-accused may be fatal to the prosecution. But the converse does not hold good, and if the part that the accused played can be clearly brought home to him and if it is sufficient to convict him of murder simipliciter he cannot escape liability because of the charge unless he can show prejudice". (underline supplied) Their Lordships considered the effect of a charge for constructive liability and its difference with a charge for the offence simpliciter and held:-
"68. As the appellant knew that the case against him was that he is the one who is said to have Crl.a.251 &651/2009 55 struck the fatal blow, and as he was told in the charge that the offence he is said to have committed was that of murder and was informed of the date and place and person we find it impossible to infer prejudice. As the Privy Council said in AIR 1930 PC 57(2) at page.58 (G)-
"He appeared by an advocate on the appeal and had been legally defended at the trial, and it is as clear as possible that with full knowledge of the course which the trial had taken, neither the appellant himself nor those who represented him had any sense whatever of the injustice that is now urged or any idea of his having been deprived of the opportunity of knowing the charge on which he was tried or of raising defences appropriate to that charge".
We would hold that there was no prejudice and that the conviction is not invalid because of the nature of the charge". (underline supplied) The Constitution Bench observed that the provisions of Code of Criminal Procedure, like all procedural laws, is designed to further meet the ends of justice and not to frustrate Crl.a.251 &651/2009 56 them by the introduction of endless technicalities. The object of the Code is " to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. It was held.
"If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence or which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once Crl.a.251 &651/2009 57 invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.
The question here is, does the Code deal with the absence of a charge and irregularities in it, and if so, into which of the two categories does it place them".
The law was settled as follows.
"16. We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to 'substantial' denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice".
It will be observed that disregard of an express Crl.a.251 &651/2009 58 prohibition was regarded as curable in "Zahiruddin V.Emperor", AIR 1947 PC 75(H), so the question whether a particular provision is stated in positive or in negative terms is not the true criterion".
Holding that the true intent and purpose of Section 537(a)(corresponding to Section 465 of 1973 Code) covers every proceeding taken 'with jurisdiction in the general phrase or other proceedings under the Code and in all these cases it is for the court to determine whether there has been prejudice to the accused and in doing so to bear in mind that some violations are so obviously opposed to natural justice. It was held that no question of prejudice arises in the class of the case provided in Section 529 (corresponding to Section 461 of 1973 Code). So also there are certain irregularities treated as vital and irrespective of prejudice, the proceedings are Crl.a.251 &651/2009 59 void as set out in Section 530 (corresponding to Section 462 of 1973 Code). The third classes of cases are dealt in Sections 531, 532, 533, 535, 536(2) and 537 (corresponding to Sections 463, 464 and 465 of 1973 Code) and in such cases the question is whether the error has caused prejudice to the accused or has occasioned a failure of justice. As the Code has carefully classified certain kinds of errors and expressly indicates how they are to be dealt with, in every such case, the court is bound to give effect to the express commands of the legislature and there is no scope for speculation. Finding that Sections 226 and 227 (corresponding to Sections 215 and 216 of 1973 Code) show that errors in a charge ' and even the total absence of a charge' do not vitiate a trial from the start. It was held. "That is conclusive to show that no error or omission in Crl.a.251 &651/2009 60 the charge, or a total absence of a charge cuts at the root of the trial. Posing the question, what the is the position if there is some departure from the normal practise, it was observed that Sections 225, 226, 227, 228, 535 and 537 (corresponding to Sections 215, 216 and 465 of 1973 Code) furnish the answer and " they apply with equal force to "every" kind of departure from that part of Section 233 (corresponding to Section 218 of 1973 Code) that requires a separate charge for each offence and an omission to frame a charge as well as irregularities that do not vitiate or invalidate a conviction " unless there is prejudice". It was held.
"Such departures range from
errors, omissions and
irregularities in charges that
are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. In all these Crl.a.251 &651/2009 61 cases the only question is about prejudice. We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based".
20. A five Judge bench of the Supreme Court in Mohan Singh V. State of Punjab(1963 SC 174) considered the question of acquittal of two of the accused charged for the offence under Section 302 read with Section 149, on the conviction of the remaining three accused. It was held that while dealing with the question as to the applicability of Section 149, it is necessary to bear in mind the several categories of cases which come before criminal courts for their decision. If five or more persons are named in the charge as forming an unlawful assembly and the evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Crl.a.251 &651/2009 62 Section 149 could be invoked. "It is however not necessary that five or more persons must be convicted before a charge under Section 149 could be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302 read with Section 149, if the charge is that persons before the court along with others named, constituted an unlawful assembly. Other persons so named may not be available for trial along with their companions for the reason that they have absconded. In such a case, the fact that less than five persons are before the court does not make Section 149 inapplicable. Therefore, in order to bring home a charge under Section 149, it is not necessary that five or more persons must necessarily be brought before the court and convicted". Holding that Section 34 like Crl.a.251 &651/2009 63 Section 149 deals with the case of constructive criminal liability, it was held that the section provides that where a criminal act is done by several persons in furtherance of the common intention of all, each such person is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of a common intention. If the common intention in question is shared by the accused persons and if the common intention leads to the commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The question was again considered by a five Judge Bench thereafter in Krishna Govind Patil V. State of Maharashtra (AIR 1963 SC 1413). Considering the view taken Crl.a.251 &651/2009 64 in Mohan Singh's case (supra)it was held that the court was visualising a case where there was evidence on record from which court came to such a conclusion and the observations are covered by the third illustration. In State of Haryana V. Prabhu (AIR 1979 SC 1019), the Honourable Supreme Court considered the argument advanced by the State that even though there was no charge for the offence under Section 302 simpliciter, having found that one of the accused inflicted the injury, he should have been convicted for the offence under Section 302 simpliciter held as follows.
" The second submission was that respondent Sheoram could be and ought to have been convicted under Section 302 simpliciter and the High Court has committed an error of law in refusing to do so on the ground that in absence of a charge under Section 302, the charge being under the said provision read with Section 149, he could not be convicted under S.302 simpliciter. It may well be that Crl.a.251 &651/2009 65 the High Court was not quite right in its legal approach to this question".
21. Though a three Judge Bench in Subran V. State of Kerala(1993(3) SCC 32) held in paragraph 11 that when the charge is under Section 302 read with Section 149 of Indian Penal Code, without a specific charge having been framed for the offence under Section 302 of Indian Penal Code, as envisaged in law, an accused cannot be convicted for the substantive offence under Section 302 of Indian Penal Code, their Lordships did not consider the Constitution Bench decision in Willie Slaney's case (supra). Relevant portion of paragraph 11 reads:-
"Since, appellant 1 Subran had not been charged for the substantive offence of murder under Section 302 Indian Penal Code, even the trial court, which tried the six accused persons, was not justified in recording a conviction against him for the Crl.a.251 &651/2009 66 substantive offence of murder punishable under Section 302 Indian Penal Code after framing a charge against him for the offence under Section 302 read with Section 149 Indian Penal Code only. A person charged for an offence under Section 302 Indian Penal Code read with Section 149 cannot be convicted of the substantive offence under Section 302, Indian Penal Code without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 Indian Penal Code. Appellant 1, Subran, was never called upon to meet a charge under Section 302 Indian Penal Code simpliciter and, therefore in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Section 302 was not permissible".Crl.a.251 &651/2009 67
Later in the review judgment, reported in 1993 (3) SCC 722, their lordships reviewed the same as follows.
" On a review of the judgment, we find that the opinion expressed at pages 10 to 12 (internal) corresponding to para 11 of the reported judgment in 1993(3) SCC page 32, is capable of being misinterpreted. The opinion expressed therein was required to be confined to the peculiar facts of the case, but it tends to give an impression as if it is a general exposition of law, which it was not meant to be. We, therefore, substitute that paragraph reading, "Since appellant 1 Subran ... committed by the four appellants ?" (pages 10 to 12), by following:
"Appellant 1, Subran, had rightly not been charged for the substantive offence of murder under Section 302 Indian Penal Code. Subran, appellant 1, was not attributed the fatal injury or identified as the person who caused the fatal blow. According to the medical evidence, none of the injuries allegedly caused by appellant - Subran either individually or taken collectively with the other injures caused by him, were sufficient in the Crl.a.251 &651/2009 68 ordinary course of nature to cause death of Suku. There is no material on the record to show that the injuries inflicted by Subran, with the chopper, were inflicted with the intention to cause death of Suku. Under these circumstances, the conviction of the first appellant, Subran, for an offence under Section 302 Indian Penal Code simipliciter was neither desirable nor appropriate. The High Court, it appears, failed to consider the scope of clause (3) of Section 300 Indian Penal Code in its proper perspective. In the facts of the present case, the intention to cause murder of Suku, deceased could not be attributed to the said appellant as the medical evidence also unmistakably shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause death of the deceased. Appellant 1 Subran, therefore, could not have been convicted for the substantive offence under Section 302 Indian Penal Code and his conviction for the said offence cannot be sustained. That Suku died as a result of cumulative effect of all the injuries inflicted on him by all the four appellants stands established on the record. The question, therefore, arises what offence did the four appellants commit?".Crl.a.251 &651/2009 69
22. The legal position in the light of the Constitution Bench decision in Willie Slaney (supra) is clear. If the charge framed discloses the overt act committed by a particular accused, though the charge is for the offence under Section 302 read with Section 149 of Indian Penal Code and the accused faced trial with the knowledge that the prosecution case is that he committed the particular overt act which caused the death, non framing of a distinct charge for the offence under Section 302 will not cause prejudice to the accused, even though the charge framed was under Section 302 read with Section 149 Indian Penal Code. In such a case, even though the charge is for the offence under Section 302 read with Section 149 of Indian Penal Code and there is not even an alternate charge for the offence under Crl.a.251 &651/2009 70 Section 302 simpliciter, when the charge discloses the overt act by a particular accused which caused the death of the victim, if the evidence establish that, that particular accused inflicted that particular injury which caused the death, he could definitely be convicted for the offence under Section 302 simipliciter. Even though there is no specific charge for Section 302 simpliciter and the charge is for the offence under Section 302 read with 149 of Indian Penal Code, there could be a conviction under Section 302 simpliciter. The question always depends on the peculiar facts of that case and depends on whether prejudice was caused to the accused. If the charge does not disclose which accused inflicted the fatal injury and caused the death and the charge only discloses one among the accused without naming the accused who Crl.a.251 &651/2009 71 inflicted it and the charge is either for 302 read with Section 34 or 302 read with Section 149 of Indian Penal Code, even if evidence show that fatal injury was inflicted by one specified accused, he cannot be convicted for the offence under Section 302 simpliciter, as the charge would cause prejudice to that accused. In such a case conviction is not possible for the offence under Section 302, because of the prejudice. In the former case, conviction is possible as in view of the details available in the charge framed, there is no scope for a prejudice as in the latter case.
23. The question is whether the accused was aware that he has to face trial on the prosecution case that he inflicted the injuries on deceased Baiju and thereby caused his death and he was called upon to answer for the murder Crl.a.251 &651/2009 72 of Baiju. The relevant portion of the charge framed and read over to the accused reads:-
"Thereafter, without any provocation, you, the accused, formed an unlawful assembly and knowing fully well that your acts are criminal in nature and with the common object of committing death of Baiju and injuring Cws.1 and 2 either by your individual acts or by your collective acts, armed with deadly weapons such as reaper, knife etc, attempted to stab Baiju initially from which he evaded from the courtyard of the said Theatre at a distance of 1 mt, towards south of the ticket counter. That, accused No.5 among you attempted to inflict a blow with a reaper against Baiju, which he evaded. It fell on CW1's left thigh and he got injured. Seeing this, accused No.1 among you, stating that these people are to be done away with, took a knife he had and inflicted stab injuries at the chest and neck portion of deceased Baiju, due to which, Baiju succumbed. When Cws 1 and 2 attempted to rescue Baiju from your attack, accused Nos.2, 3, 4 and 6 wrongfully restrained Cws 1 to 3 and inflicted hand blows and fisting on Cws. 1 to 3. For Crl.a.251 &651/2009 73 the aforesaid acts, you had common intention and shared the same and you all have acted in furtherance thereof and that thereby you all have committed offences under Sections 143, 147, 148, 324, 341, 323, 302 read with 149 Indian Penal Code, offences within the cognizance of this court, that you all be tried for the said offences by this court".
24. Therefore a reading of the charge establishes that the first accused was directed to answer the charge that after 5th accused inflicted injury on the thigh of PW1, first accused stating that these people are to be done away with, took a knife and inflicted stab injuries at the chest and neck of deceased Baiju and caused his death. As is the case discussed by the Constitution Bench, the final report submitted under Section 173 of Cr.P.C, the charge framed by the court, the evidence of Pws 1, 2 and 5 and the questions put to the Crl.a.251 &651/2009 74 first accused under Section 313 of Code of Criminal Procedure, conclusively establish that first accused faced the trial and defended the case with the knowledge that he inflicted the fatal injuries on the chest and neck of deceased Baiju with a knife and thereby caused his death. In such circumstances, even though there is no specific charge for the offence under Section 302 simpliciter, as no prejudice was caused to the first accused, he could definitely be convicted for the offence under Section 302 simpliciter. Hence, though the conviction of first accused for the offence under Section 302 read with Section 149 of Indian Penal Code is not sustainable, first accused could definitely be convicted for the offence under Section 302 simpliciter, as it is conclusively proved that first accused inflicted the fatal injuries on the neck and Crl.a.251 &651/2009 75 chest of Baiju, which are proved to be sufficient in the ordinary course of nature to cause death. They are proved to be inflicted by the first accused with the intention to cause his death or in any event with the intention to inflict those injuries. As they were inflicted on the vital part of the body, with such force, clause firstly of Section 300 IPC would apply. In any case, clause thirdly of section 300 of Indian Penal Code squarely applies. None of the exemptions provided under Section 300 of Indian Penal Code is attracted. Hence it is proved that first accused committed the offence under Section 302 of Indian Penal Code. The conviction of the first accused is therefore to be altered to Section 302 simpliciter instead of Section 302 read with Section 149 of Indian Penal Code.
25. From the evidence, learned Sessions Crl.a.251 &651/2009 76 Judge rightly found that first accused and accused 2 to 6 committed the offences under Section 143, 147, 341 and 324 read with Section 149 of Indian Penal Code and accused 1 and 5 committed the offence under Section 143 of Indian Penal Code. Learned Sessions Judge sentenced first accused to imprisonment for life and a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for one year for the offence under Section 302 of IPC. We find no reason to interfere with the said sentence. Learned Sessions Judge sentenced all the accused for rigorous imprisonment for one year and a fine of Rs.2000/- for the offence under Section 341 of Indian Penal Code and rigorous imprisonment for six months for the offence under Section 324 read with Section 149 of Indian Penal Code. Considering the facts and circumstances of these cases, we find that Crl.a.251 &651/2009 77 sentence of rigorous imprisonment for six months and a fine of Rs.2000/- will meet the interests of justice for the offence under Section 324 read with Section 149 of Indian Penal Code. We find no reason to interfere with the sentence for the other offences.
26. Appeals are disposed as follows. Confirming the conviction of the first accused for the offence under Section 143, 148, 341 and 324 read with Section 149 of Indian Penal Code, conviction for the offence under Section 302 read with Section 149 is altered to Section 302 of Indian Penal Code. First accused is sentenced to imprisonment for life and a fine of Rs.25,000/- and in default, rigorous imprisonment for one year for the offence under Section 302 of Indian Penal Code. The conviction and sentence of all the accused for all other offences are confirmed. Accused 2 to Crl.a.251 &651/2009 78 6 are entitled to set off for the period they have been in custody in the case. First accused is entitled to set off as provided under Section 428 of Indian Penal Code, subject to orders passed by the appropriate authority under Section 432 and 433 of Code of Criminal Procedure.
M.SASIDHARAN NAMBIAR, JUDGE.
P.BHAVADASAN, JUDGE.
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