Kerala High Court
Sabu @ San vs State Of Kerala on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
CRL.A NO. 546 OF 2017
[AGAINST THE JUDGMENT DATED 6-5-2017 IN S.C.NO.846 OF 2012 ON
THE FILE OF THE ADDITIONAL SESSIONS JUDGE-II, PATHANAMTHITTA]
APPELLANTS/ACCUSED Nos.1 & 3 :
1 SABU @ SAN
S/O THOMAS,KOLAKKOTTU HOUSE, NEELIPILAVU
HOUSE,KIZHAKKEKARA, CHITTAR-SEETHATHODU VILLAGE.
2 LALUMON @ LALU
S/O KUNJUKUNJU,MANALOOR HOUSE, NEELIPILAVU
HOUSE,KIZHAKKEKARA, CHITTAR-SEETHATHODU VILLAGE.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.T.V.NEEMA
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.ERNAKULAM. 682031.
BY SRI. ALEX THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
01.07.2021, THE COURT ON 14.07.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.546 of 2017 2
K.VINOD CHANDRAN & ZIYAD RAHMAN A.A., JJ.
---------------------------------------------------------
CRL.APPEAL No. 546 of 2017
-------------------------------------------------
Dated this the 14th day of July, 2021
JUDGMENT
Ziyad Rahman A.A., J.
1. The unfortunate victim of Crime No 66/11 of Chittar Police
station, subject matter of S.C.No 846/2012 on the file of Additional
Sessions Judge-II, Pathanamthitta, would have never imagined
that, singing devotional songs in his leisure time at the courtyard of
his own residence, would result in an abrupt end to his life, at the
hands of his intolerant neighbour. In connection with the said
incident, three accused persons, were implicated for the offences
punishable under Section 302 read with Section 34 of the Indian
Penal Code. The 2nd accused passed away during the trial, and only
the 1st and 3rd accused, faced the trial and both of them now stand
convicted.
2. The prosecution case is that, on 19/03/2011, at about 8 PM, the
deceased Sasidharan Pillai @ Sasi, was talking loudly while he was
on the southern courtyard of his house. The 1 st accused, an
immediate neighbour along with the other accused rushed to the
deceased, shouting that his loud talk was causing disturbance to his
daughter's studies. There ensued a physical altercation, during the
course of which fight, the 1st accused stabbed the deceased thrice
on his chest, with a knife. The deceased succumbed to the injuries
on the spot itself. The prosecution charged the aforesaid offences
and the accused stood trial.
3. During the course of trial, the prosecution examined PW1 to
PW14, marked Exts P1 to P20, and identified MO1 and MO2. Upon
completion of the prosecution evidence, statement of the accused
was recorded under Section 313 of Cr.P.C in which all the
incriminating evidence brought out by the prosecution during the
course of trial, were denied by the accused. No defense evidence
was adduced and thereafter taking into account the materials
produced before it, the Sessions Court arrived at a finding of guilt of
the 1st and 3rd accused. Accordingly they were convicted and
sentenced for imprisonment for life and a fine of Rs 1 lakh each,
with default sentence of rigourous imprisonment for one year. The
Appellants herein, have come up with this appeal against the
conviction and sentence.
4. We heard Smt. T.V. Neema, learned counsel for the appellants,
and Sri. Alex Thombra, the learned public prosecutor. The learned
counsel for the appellants contends that the prosecution miserably
failed in establishing the guilt of the accused. According to her,
there are several discrepancies in the prosecution case, such as, (1)
PW2, who is the sole eyewitness to the incident, is not at all a
reliable witness, as she is an interested witness; being the wife of
the victim, (2), the prosecution failed to prove any motive for
commission of the crime (3) the father of the victim, who was
residing in the residential house where the incident occurred, was
not examined by the prosecution, (4), the dress worn by PW2 was
not produced by the prosecution and subjected to forensic test, (5)
the fingerprints on MO1 knife was not examined and (6) the
prosecution could not bring in any materials showing the common
intention of the 3rd accused and no specific overt acts were also
alleged against him. On the other hand, the learned public
prosecutor contends that, the prosecution was successful in
establishing the guilt of both the accused persons, and all the
contentions raised by the appellants are unsustainable. Accordingly
he prays for dismissal of the appeal.
5. The proceedings were set into motion as per Ext. P1, First
Information Statement which was given by PW1 at 11 P.M on
19.03.2011. He is the brother of the deceased and he is residing on
the northern side of the residence of the deceased. On 19/03/2011
at 8 PM, while he was sitting in his house, he heard an outcry from
PW2. Under the impression that it might be due to some quarrel
between the deceased and his wife, he did not give much attention.
But, half an hour later, one Sahadevan (PW6), who is one of their
neighbours, came to his house and informed him that his brother
was inflicted with stab injuries and was lying in the courtyard of
the adjacent house. Immediately he along with PW6 rushed to the
place of occurrence, to find that the deceased was lying in a pool of
blood. Upon inquiry, PW2, wife of his brother, informed him that, at
about 8 PM, accused 1 to 3, who were in the courtyard of the
neigbouring house of accused No. 1, infuriated with the act of the
deceased talking loudly, rushed to the scene of occurrence shouting
that the loud noise made by the deceased disturbed the studies of
1st accused's daughter. The other accused were also along with the
1st accused. This resulted in a physical altercation between the
deceased and accused, during which the 1 st accused took out a knife
and inflicted stab injuries upon the body of the deceased. After the
incident, the accused ran away from the place of occurrence. While
being examined as PW1, he reiterated all the above aspects before
the Court. However there was a small improvement in his version to
the effect that, the deceased was singing devotional songs at the
relevant time and this act made the accused furious, which
ultimately led to the altercation and stab injury.
6. When we examine the scientific materials available, it can be
seen that there is a Postmortem Certificate which is marked as
Exhibit P7 and the doctor who conducted the postmortem was
examined as PW12. He clearly explained the nature of injuries and
the same reads as follows:
"Injuries ante-mortem:-
1. Abraded contusion on outer aspect of right elbow 2x.5 cm
Vertical .
2. Abraded Contusion on tip of right shoulder 3x1 cm front
to back direction.
3. Stab wound on front of chest on midline 3.2x1cm, transverse,
with left end blunt 6.5 cm below root of neck, runs upwards and
outwards through muscle plain at second intercostal space for a length
of 5.5 cm.
4. Stab wound on front of chest on left side 1.5 x .5 cm transverse,
6 cm below injury No.3, right end blunt situated, 1 cm left to midline,
skin deep.
5. Stab wound on left side of chest 3.5 x 1cm, vertical, 13 cm
outer to front midline at intercostal space with a surrounding round
contusion of 3 cm in diameter around the wound expecially at lower
portion with upper end blunt. The wound pierced the skin pleura and
lower portion of upper lobe of left lung for a depth of 8 cm runs
upwards and rightwards from the left fifth intercostal space with a
total minimum depth of 10 cm. The chest cavities contained a total of
1.5 litres of blood and blood clots."
According to him, the death was due to the stab wounds sustained
to the chest which are described as injury numbers 3, 4 and 5. He
categorically stated that, those stab injuries could be inflicted by
M.O. 1 weapon, which was shown to him during the course of trial.
The evidence of PW12 and Ext P7 Postmortem Certificate would
clearly prove that the death of the deceased was a homicide.
7. This finding, clearly leads us to the next question as to whether it
was the accused who committed the offence, as alleged by the
prosecution and also as to whether while committing such an
offence, all the accused persons shared a common intention, as
contemplated under section 34 of IPC.
8. While examining the above question, the crucial evidence is that
of PW2, who is the wife of the deceased. She stated that on
19/03/2011, at about 8 PM, the deceased was singing devotional
songs, while sitting on the southern courtyard of his residence. At
that time, the accused persons were sitting in the courtyard of the
1st accused, who is their neighbour on the southern side of their
residence. While so, the 1st accused along with the other accused
came running to their residence, by shouting that, "my daughter is
unable to study due to your song". This resulted in an altercation
between the accused persons and the deceased. Seeing the
altercation from inside the house she came out and intervened
when, the 1st accused took out a knife, MO1 weapon and stabbed on
the chest of the deceased thrice. Thereupon, the accused ran away
from the spot. She further stated that, the 1 st accused used to
indulge in brewing illicit liquor and hunting, and the deceased used
to threaten that he will be reported to the Police. She stated that,
the action of the accused persons stabbing him was due to this
grudge. During cross-examination, she stated that her husband
used to sing devotional songs everyday for half an hour from 7:30
PM onwards. She further stated that, she had seen the incident in
the light available on the southern side of her house. She identified
the dress worn by the deceased at the time of the incident and also
the knife used for inflicting stab injury and the said materiel objects
were marked through her.
9. On going through her deposition, it can be seen that, it reveals a
vivid picture of the incident occurred, and the same is perfectly in
tandem with the statement made by her before the Police except on
one aspect. What she had stated before the Police was that at the
relevant time, the deceased was talking loudly, whereas as per the
deposition, he was singing devotional songs loudly. In response to
the question asked by the learned counsel for the accused, she had
stated that such a statement was made by her to the Police, due to
her mental state at the relevant time. We notice that, the said
statement was recorded by the Police at about 10 AM on
20.03.2011, whereas the incident in this case happened at 8 PM on
the previous night. Therefore, the explanation offered by her is a
plausible one and there is no reason to treat it as a serious
discrepancy as to doubt the veracity of her version. Even otherwise,
it cannot be treated as a discrepancy since, it amounts to only a
clarification of the statement made by her before the Police. Apart
from the above, the deposition of PW2 does not contain any
discrepancies to disbelieve her version of the incident. What is
relevant is the fact that the 1 st accused got infuriated with the loud
noise made by the deceased as it interfered with his daughter's
studies.
10. The evidence of PW2 is also corroborated by the scientific
evidence available. It is evident from Exhibit P12 Postmortem
Certificate that there were three stab injuries upon the body of the
deceased. PW2 categorically stated that, the 1st accused stabbed
the deceased thrice. It is also stated that the stab injuries were
sustained by the deceased during a physical altercation between the
accused and the deceased. Such statement regarding the
altercation clearly justifies the other injuries most of which are
minor in nature, found on the body of the deceased and specifically
noted in Ext P7 Postmortem Certificate. Further PW2 also identified
MO1 knife and PW12 Doctor, has clearly stated that the stab injuries
could be inflicted with MO1. More so, her evidence was
corroborated by the evidence of PW1 and PW6 as well. As per the
deposition of PW6, at 8 PM on 19/03/2011, he heard an outcry and
thereupon he rushed to the residence of the deceased. On reaching
there, he could see the deceased lying on the southern courtyard of
the residence in a pool of blood with stab injuries. He stated that, at
the time when he reached the place of occurrence, he had seen
PW2 there and he could not see any blood on her dress. He further
stated that, the father of the deceased, who was an inmate of the
said residence was not there. Later he went to the residence of PW1
and informed him. Both came back to the residence of the deceased
after half an hour of the incident and upon inquiry with PW2, she
had stated that the 1st accused stabbed the deceased. When we are
examining the evidence of Pws 1, 2 and 6, it can be seen that the
entire sequence of events are clearly linked and it provides a
complete story without any break. In other words, the version of
PW2 as to the incident that occurred in the premises, is fully tallying
with the version advanced by PW1 and PW6, who came to the scene
immediately after the occurrence. PW1 stated that at 8 PM he heard
an outcry from PW2 and half an hour later, PW6 came to his
residence and informed him about the stabbing of his brother.
Immediately they went to the place of occurrence and found the
deceased lying with stab injuries. PW6 has clearly stated that, he
came back to the place of occurrence along with PW1 after half an
hour. PW2 also stated that, PW1 came along with PW6, after the
incident. So, all these evidence offer mutual corroboration and
lends credence to each other.
11. The learned counsel for the appellants contended that the
evidence of PW 2 cannot be relied upon as she is a highly interested
witness, being the wife of deceased. It is a well settled position of
law that, merely because of the reason that the witness is a close
relative to the victim, evidence of such witness cannot be
disregarded, treating it as an interested version. Unless otherwise
established, it cannot be concluded that a person who is closely
related to the victim, would make any statement for falsely
implicating any person, so as to permit the real culprit to escape
from the clutches of law. In the judgment reported in Mohabbat
and others Vs State of M.P ( 2009 (13) SCC 630) it was held by
the Honourable Supreme Court as follows:
"Merely because the eyewitnesses are family members their evidence
cannot per se be discarded. When there is allegation of
interestedness, the same has to be established. Mere statement that
being relatives of the deceased they are likely to falsely implicate the
accused cannot be a ground to discard the evidence which is otherwise
cogent and credible. We shall also deal with the contention regarding
interestedness of the witnesses for furthering the prosecution version.
Relationship is not a factor to affect credibility of a witness. It is more
often than not that a relation would not conceal actual culprit and
make allegations against an innocent person. Foundation has to be
laid if plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether it
is cogent and credible."
12. Similarly, in the judgment reported in 2012 (4) SCC 107
(Amit Vs State of Uttar Pradesh), the Honourable Supreme
Court held that, an interested witness must have some direct
interest in having the accused somehow convicted for some
extraneous reasons and a near relative of the victim is not
necessarily an interested witness. Thus while examining the facts
of this case in the light of the principles laid on by the Hon'ble
Supreme Court, it can be seen that the materials available do not
reveal the existence of any extraneous intention on the part of PW2,
in seeing the accused convicted. To create a ground for such
extraneous reasons, there must be some evidence indicating some
enmity between them. In the absence of any such materials, it
cannot be assumed that, PW2 had any interest in seeing the
accused convicted for the offence.
13. It is the further case of the appellants that the evidence of
PW2 is not reliable and the finding of guilt entered into by the
Sessions Court mainly on the basis of such evidence is not proper. It
is a well settled position of law that, it is not the quantity of
witnesses that matters, but the quality of evidence adduced. In this
case going through the evidence of PW2, no circumstances against
the credibility of the said witness are brought out. There is nothing
to doubt the presence of PW2, who is the wife of the deceased and
the scene of occurrence is the southern courtyard of their residence.
PW2 withstood the cross-examination and no contradiction worth its
name was brought out by the prosecution.
14. The learned counsel for the appellants attempts to create a
shadow of doubt over the prosecution case, pointing out that, even
though the father of the deceased was a permanent resident in the
very same house, he was not examined by the prosecution.
However, it is clearly explained by PW2 in her evidence that, at the
relevant time, father of the deceased was not in the house as he
went to the hospital. The said aspect was corroborated by the
evidence of PW6 as well, who stated that when he reached the spot
on hearing the outcry of PW2, the father of the deceased was not
there. It is in that circumstance that PW6 ran to PW1 , the brother
of the deceased, an adult male relative of the deceased, to inform
him of the stabbing incident. In such circumstances, we do not think
that the non-examination of the father by the prosecution will in
any manner, create any doubt as to the veracity of the case
advanced by the prosecution.
15. Similarly, the learned counsel for the Appellants submitted
that, the prosecution has not produced the dress worn by PW2 in
support of the prosecution case. But, we are of the view that non-
production of the dress worn by PW2 is not at all material. It is
pertinent to note in this regard that, PW6 has already stated in his
deposition that, when he reached the place of occurrence, he saw
the deceased lying in a pool of blood with stab injuries and he also
found PW2 there. He has further stated that, there were no
bloodstains on the dress worn by the PW2. There is no reason to
disbelieve the same. Though PW2 intervened in the struggle there
were about four males in the scuffle and PW2 would just have been
in the fringe, thus not being near her husband when the stabbing
occurred. Also when a knife, a lethal weapon is brandished it is
natural for any person, especially a woman to draw back in alarm or
self-preservation. Hence non-production of the dress of PW2 which
could have been examined for presence of blood stains does not
have any significance.
16. Another crucial contention taken by the learned counsel for
the appellants, is that no motive could be proved by the
prosecution. In this regard, it is to be noted that, case of the
prosecution is that, 1st accused assaulted the deceased, as the loud
noise made by the deceased disturbed the studies of the daughter
of the 1st accused. The words uttered by the 1st accused at the time
of commission of the crime, were clearly spoken of by PW2 and
there is nothing to disbelieve the said statement. PW2 categorically
stated that, the deceased was in the habit of singing devotional
songs on every evening loudly, by sitting at their courtyard on the
southern side. The house of the 1 st accused is on the southern side.
Therefore it is evident that, the first accused was irritated and
infuriated by the disturbance constantly caused by his neighbour.
We are of the view that, the said evidence is sufficient to arrive at a
conclusion as to the motive; which in any event is not a crucial
aspect when there is direct evidence, which is the case here; with
the eye-witness testimony of PW2, the wife of the deceased.
17. While considering the above, another important aspect to be
looked into is whether, the act was committed on grave and sudden
provocation without any premeditation or design. Even though the
learned counsel for the appellants would contend that, it was
without any premeditation, the conduct of the 1 st accused would
show otherwise. As per the evidence of PW2 and also from the
circumstances as revealed from the other materials, it can be seen
that, the 1st accused came to the courtyard of the deceased, armed
with MO1 knife. The fact that he carried MO1 weapon to the place of
occurrence, clearly shows that, there was per-meditation on his
part. MO1 weapon was lethal enough to cause death of another, if
used on the vital parts of the body, as any person can understand
and it was used on the chest of the victim, thrice by the assailant
causing wounds deep enough to cause death. It cannot be said that
the accused lacked premeditation or the injury was caused in a
sudden fit of anger.
18. Another aspect is relating to the the recovery of MO1
weapon. Immediately after the incident, under the belief that the
weapon used for commission of the crime was kept in the residence
of the 1st accused, the PW13 investigating officer conducted a
search in the residence of 1st accused by preparing Ext P8 search
memo and forwarding the same to the jurisdictional Court, but no
recovery could be affected. Subsequently, the 1 st accused was
arrested on 23/03/11 at 4 PM and when he was interrogated, he
made a confession statement to the effect that, he had concealed
the knife inside the hole in a tree situated on the road-side,
between Neelipilavu and Kattachira. Accordingly PW 13 went to the
place along with 1st accused and recovered MO1 knife therefrom.
Ext P12 is the confession statement and Ext P13 is the seizure
mahasar. To prove Ext P13 seizure mahasar, the prosecution
examined PW 7 and PW 8, but both the said witnesses turned
hostile to the prosecution. By relying upon the said hostility, a
contention was raised by the accused, before the Sessions Court to
the effect that, the recovery of MO1 is not reliable. However, the
Sessions Court found, the evidence of the investigating officer
PW13, to be trustworthy. By relying upon the said evidence, the
contention of the accused on this issue was rejected. While
discarding the said contention, the Sessions court relied upon the
judgments reported in 1992 (1) KLT SN 22 (Sadanandan Vs State
of Kerala) and 1990 (2) KLT 564 ( Mathew Vs State of Kerala). We
cannot find any infirmity in the said finding of the Sessions Court,
as the same was arrived at based on reliable evidence of PW13, and
also on a confession statement made by the 1st accused. It is
admissible under Section 27 of the Indian Evidence Act and is a
valuable piece of evidence, specifically pointing to the guilt of the
accused. This is particularly so, as PW2, who is the sole eyewitness
to the incident, had identified the said weapon and PW12 Doctor
opined that, the injuries which caused the death of the deceased
could be inflicted with the same. The hostility of witnesses to
recovery based on confession statements is a perennial problem;
the acceptability of which has to be evaluated on an assessment of
the totality of the circumstances, as discernible from the evidence
led in a particular case.
19. Another contention put forward by the learned counsel for the
appellants is that, no scientific examination has been done by the
prosecution, to prove the fingerprints of the accused on M.O. 1 knife
and also to identify the characteristics of the bloodstain found on
the same. It is true that no such exercise has been done by the
prosecution, but that by itself cannot be a ground to discard the
case advanced by the prosecution. In this case, there is a reliable
eyewitness, namely PW2, who is a natural witness whose presence
cannot be doubted at the place of occurrence at the time when the
offence was committed. PW2 is the wife of the deceased and she
provided a graphic description of the entire sequence of events that
led to the commission of the crime and the incidents occurred
thereafter. Her evidence is clearly corroborated by the evidence of
PW1 and PW6 who came to the place of occurrence after the
accident. Since the incident had occurred at 8 PM, in the premises
of the residential house where the deceased and PW2 were residing,
her presence is natural and it may not be possible for the
prosecution to find out any other witnesses. At this juncture, it is to
be reiterated that, as held by the Hon'ble Supreme Court in various
decisions, what matters is the quality of the evidence of the
witness and not the quantity thereof. In this case there is no reason
to disbelieve the version of PW2 and on careful scrutiny of the
contents of the same, we have no doubt in our mind that the
Sessions Court is completely justified in basing a conviction on the
evidence of such a witness.
20. The learned counsel for the appellants then argues that, even
if the entire evidence is taken into consideration, there is
absolutely no material to show the complicity of the 3 rd accused in
the crime. She points out that, the prosecution has not alleged any
specific overt act against the 3rd accused, but on the other hand he
was arraigned as an accused based on Section 34 of IPC alone. She
further submits that, the materials produced by the prosecution do
not reveal the sharing of a common intention by the parties, which
is the most important ingredient for attracting Section 34. In
support of the said contention, the learned counsel for the
Appellants relies on the judgments reported in 2006 (9) SCC 307
(Dhaneswar Mahakud) and others v. State of Orissa) and
2017(5) KHC 83 (Madhu v.State of Kerala). In Madhu's case,
(supra), a Division Bench of this court held as follows;
"11. ................. In order to attract S.34 IPC, there should be a common prior
concert, which would be capable of even developing on the spur of the
moment or at the scene of the crime. What is important is the meeting of
minds of the co - accused that the particular criminal act should be
committed. S.34 of IPC essentially resting on the principle of joint liability in
doing a criminal act and the essence of the liability is to be found in the
existence of a common intention animating the accused to do a criminal act
in furtherance of such intention. The criteria is the existence of a common
intention and the act done in furtherance of such common intention. The acts
may be different in character but must have been actuated by one and the
same common intention in order to attract the provision. It is not necessary
that the acts of several persons charged with commission of an offence jointly
must be the same or identically similar. The true purport of S.34 is to extend
the liability of the acts done in furtherance of a common intention even in the
absence of proof as to what exactly done by each of the accused. The
principle of constructive liability under S.34 thus, in the absence of common
intention, cannot be extended. Though S.34 was incorporated in IPC, the
Section really deals with and operate as a rule of evidence and does not
create a substantive offence by itself. The principle of vicarious liability
enshrined by S.34 IPC extends only to the extent of common intention shared
by the parties and as such an apportionment of liability based on the sharing
of the common intention to the extent possible is permissible. In the absence
of common intention the parties are liable only in respect of the act done by
them and the consequences thereof. In other words, the extent of liability is
also an issue to be adjudicated based on the sharing of common intention to
do a particular act. An act done by one of the accused exceeding the common
intention shared by them cannot be brought under S.34 of IPC. The
apportionment of liability amongst the co - accused would be permissible with
the aid of S.34 IPC and the liability of an accused under S.34, therefore, is a
matter of inference to be drawn from the facts and circumstances of each
case."
21. The Honourable Supreme Court in 2020 (10) SCC 516
(Subed Ali and others Vs State of Assam), observed at para 13
as follows:
"Common intention consists of several persons acting in unison to achieve a
common purpose, though their roles may be different. The role may be active
or passive is irrelevant, once common intention is established. There can
hardly be any direct evidence of common intention. It is more a matter of
inference to be drawn from the facts and circumstances of a case based on
the cumulative assessment of the nature of evidence available against the
participants. The foundation for conviction on the basis of common intention
is based on the principle of vicarious responsibility by which a person is held
to be answerable for the acts of others with whom he shared the common
intention. The presence of the mental element or the intention to commit the
act if cogently established is sufficient for conviction, without actual
participation in the assault. It is therefore not necessary that before a person
is convicted on the ground of common intention, he must be actively involved
in the physical activity of assault. If the nature of evidence displays a pre -
arranged plan and acting in concert pursuant to the plan, common intention
can be inferred. A common intention to bring about a particular result may
also develop on the spot as between a number of persons deducible from the
facts and circumstances of a particular case. The coming together of the
accused to the place of occurrence, some or all of whom may be armed, the
manner of assault, the active or passive role played by the accused, are but
only some of the materials for drawing inferences "
22. While making a factual analysis of this case, in the light of the
principles laid down as per the judgments mentioned above, the
crucial aspect to be verified is whether there exist any element of
common intention between the parties during the course of
commission of the crime. In this case the specific case of the
prosecution is that, when the deceased was making a loud noise,
the accused persons came to the premises of the deceased,
indulged in physical altercation during the course of which, the 1 st
accused inflicted three stab injuries on the chest of the deceased.
The commission of the act of inflicting stab injuries at the instance
of the 1st accused is clearly proved from the evidence available, but
the crucial question is whether the 3 rd accused had shared such
intention, so as to call it as common intention. Despite scanning
through the entire evidence meticulously, we could not find any
specific instance from which any assumption can be drawn as to the
pre-designed plan or concert or meeting of minds of the accused 2
and 3, with that of the 1 st accused. While considering this issue, the
words uttered by the 1st accused during the course of commission of
the crime is very much material. The said words are relating to the
disturbance that was being caused by the loud noise created by the
deceased, to the daughter of the 1 st accused. Admittedly the 3rd
accused or even the 2nd accused who is no more, are not residing in
the immediate neighborhood of the deceased. The chances of any
disturbance being caused to them due to the loud noise allegedly
made by the deceased was practically nil. Further, there are
absolutely no materials to show the exact relationship between the
1st accused and the other accused persons, so as to draw an
inference of both of them sharing a common intention with the 1 st
accused. In such circumstances, merely for reason that the 3 rd
accused was present in the place of occurrence at the time of
commission of the offence, it cannot be concluded that they were
sharing a common intention. The words uttered by the 1 st accused
during the course of commission of crime, clearly indicate the
individual interest of the 1 st accused alone, which is very much
personal to himself, and under normal circumstances it could not be
a matter of concern for the other accused, unless there are specific
materials pointing out such concerns on their part. As mentioned
above, despite meticulous scrutiny of entire materials, we are
unable to find any such reasons for such concerns and hence we do
not think that the 3rd accused shared a common intention to commit
an offence along with the 1st accused. Mere presence of the 3rd
accused by itself will not attract the rigour of Section 34. In the
above circumstances we have no hesitation to hold that the 3 rd
accused is not guilty of the offence and to that extent the judgment
passed by the Sessions Court is liable to be interfered with.
23. In the above circumstances, after examining the entire
evidence on record, our findings can be summarized in the manner
as follows:
(a) The evidence of PW2, who is the sole eyewitness to the
incident is convincing, trustworthy and reliable. The said
evidence, which is corroborated by the evidence of PW 1 and
PW6, clearly establish the guilt of the 1st accused. The
scientific evidence in the form of Ext P7 Postmortem
Certificate which is proved by PW12 is also in tune with the
evidence of PW2. PW2 has also identified MO1 weapon and
PW12 has categorically stated that injury Nos 3, 4 and 5
mentioned in Ext P7, could be inflicted by MO1. All these
evidence clearly establish the guilt of the 1 st accused, beyond
any reasonable doubt.
(b) However, the materials available on record, are not sufficient
to establish the sharing of a common intention to commit the
murder of the deceased, between the accused persons. The
immediate reason for commission of the crime is evidently the
disturbance caused by the victim, to the daughter of the 1 st
accused and it is so personal in nature to the 1 st accused
alone. It is not possible to impute the sharing of common
intention by the 3rd accused, in the absence of specific
materials pointing to the same and hence it cannot be
concluded that the prosecution has succeeded in establishing
the 3rd accused guilty of the offence.
In such circumstances, this appeal is allowed in part, by confirming
the conviction and sentence imposed upon the 1 st appellant/
1st accused and finding the 2nd appellant/3rd accused not guilty of
the offence alleged against him. The 2 nd appellant/3rd accused shall
be set at liberty forthwith; if he is not required in any other case.
Sd/-
K. VINOD CHANDRAN
JUDGE
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
