Kerala High Court
Shafeek vs State Of Kerala on 4 June, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
CRL.A NO. 304 OF 2017
AGAINST THE JUDGMENT DATED 09.02.2017 IN SC NO.388 OF
2012 ON THE FILES OF THE ADDITIONAL SESSIONS COURT - III,
MAVELIKKARA
APPELLANT/3RD ACCUSED:
SHAFEEK
AGED 25 YEARS, S/O.SHOUKATH, PALLIYUDE
THEKKETHIL, NEAR CHUNAKKARA SOUTH MOSQUE,
CHUNAKKARA SOUTH MURI, CHUNAKKARA VILLAGE,
MAVELIKKARA TALUK, ALAPPUZHA.
BY ADVS.
SRI.RASHEED C.NOORANAD
SMT.ANITHA M.N. EKM
RESPONDENT/COMPLAINT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682031.
SRI.E.C.BINEESH P P
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 23.05.2024
ALONG WITH CRL.A.490/2017, 665/2017, THE COURT ON
04.06.2024 DELIVERED THE FOLLOWING:
Crl.A.Nos.304 of 2017 & con. cases
-: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
CRL.A NO. 490 OF 2017
AGAINST THE JUDGMENT DATED 09.02.2017 IN SC NO.388 OF
2012 ON THE FILES OF THE ADDITIONAL SESSIONS COURT - III,
MAVELIKKARA
APPELLANT/ACCUSED NO.2:
VIJITH
S/O. SIVANKUTTY, CHARUVAYYATHU VEEDU,
KARIMULACKAL MURI, CHUNAKKARA VILLAGE,
MAVELIKKARA, ALAPPUZHA DISTRICT
BY ADVS.
SRI.K.K.DHEERENDRAKRISHNAN
SRI.SHAJIN S.HAMEED
SMT.N.P.ASHA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM
SRI.E.C.BINEESH P P
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 23.05.2024
ALONG WITH CRL.A.304/2017 AND CONNECTED CASES, THE COURT
ON 04.06.2024 DELIVERED THE FOLLOWING:
Crl.A.Nos.304 of 2017 & con. cases
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
CRL.A NO. 665 OF 2017
AGAINST THE JUDGMENT DATED 09.02.2017 IN SC NO.388 OF
2012 ON THE FILES OF THE ADDITIONAL SESSIONS COURT - III,
MAVELIKKARA
APPELLANT/ACCUSED:
NIYAS @ RIYAS
C.NO. 1625, CENTRAL PRISON, TRIVANDRUM
BY ADVS.
SRI.S.RAJEEV
SRI.V.VINAY
SRI.D.FEROZE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DGP, HIGH COURT OF KERALA
SRI.E.C.BINEESH P P
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON
23.05.2024 ALONG WITH CRL.A.304/2017 AND CONNECTED CASES,
THE COURT ON 04.06.2024 DELIVERED THE FOLLOWING:
Crl.A.Nos.304 of 2017 & con. cases
-: 4 :-
C.R.
P.B.SURESH KUMAR & M.B.SNEHALATHA , JJ.
-----------------------------------------------
Crl.A.Nos.304, 490 and 665 of 2017
-----------------------------------------------
Dated this the 4th day of June, 2024
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from S.C. No.388 of 2012 on the
files of the Court of the Additional Sessions Judge-III,
Mavelikara. There were altogether four accused in the case.
Among the appeals, Criminal Appeal No.304 of 2017 is
preferred by the third accused, Criminal Appeal No.490 of 2017
is preferred by the second accused and Criminal Appeal No.665
of 2017 is preferred by the first accused. The fourth accused in
the case was acquitted and the appellants stand convicted and
sentenced for the offences punishable under Sections 341 and
Crl.A.Nos.304 of 2017 & con. cases
302 read with Section 34 of the Indian Penal Code (IPC).
2. The victim in the case is one Baiju. He suffered
a stab injury at about 11.15 p.m on 09.12.2010. Though he was
taken initially to KCM Hospital, Nooranad and then to CM
Hospital, Pandalam and thereafter to Pushpagiri Medical College
Hospital, Thiruvalla, he succumbed to the stab injury on the
way to Pushpagiri Medical College Hospital at about 1 a.m. on
the following day. A case was registered in connection with the
occurrence by Nooranad Police at 8 a.m. on 10.12.2010 based
on the information furnished by Shyju, the younger brother of
the deceased and the investigation conducted in the case
revealed that it was the accused who caused the death of the
victim.
3. The case of the prosecution is that the accused,
in furtherance of their common intention to commit murder of
Baiju, trespassed into the courtyard of the house of the
deceased at about 11.15 p.m. on the date of occurrence and
knocked at the door of the house of Baiju. When Shyju came out
of the house, the accused told Shyju that they want to talk to
Crl.A.Nos.304 of 2017 & con. cases
Baiju and when Baiju came out of the house accordingly, the
accused led him out of the courtyard followed by which,
accused 2 and 3 held Baiju from his back by his hands to
prevent him from escaping their hold and the first accused
inflicted a deep stab injury on the left side of his abdomen using
a knife and thereupon, all of them fled away from the scene in a
TATA Sumo vehicle bearing No.KL-29/4654. A few hours prior to
the occurrence, Baiju questioned the first accused for having
taken Shyju to a bar and caused the latter to drink liquor. The
said occurrence ensued in an altercation and in the midst of
which, Baiju allegedly caused hurt to the first accused by hitting
him. The said occurrence is alleged to be the motive for the
accused to cause the death of the victim.
4. On the accused being committed to trial, the
Court of Sessions framed charges against accused 1 to 3 for
offences punishable under Sections 302, 341 and 449 read with
Section 34 IPC and the fourth accused under Section 201 IPC.
The accused pleaded not guilty to the charges. Thereupon, the
prosecution examined 26 witnesses as PWs 1 to 26 and proved
Crl.A.Nos.304 of 2017 & con. cases
through them 34 documents as Exts.P1 to P34. MOs 1 to 7 are
the material objects in the case. Exts.D1 to D12 are the
previous statements made by the witnesses which were marked
at the instance of the accused. When the incriminating
circumstances were put to the accused in terms of the
provisions contained in Section 313 of the Code, they denied
the same. The Court of Session, thereupon, on a consideration
of the evidence on record, held that accused 1 to 3 are guilty of
the offences punishable under Sections 341 and 302 read with
Section 34 IPC and acquitted the fourth accused of the charge
framed under Section 201 IPC. Consequently, accused 1 to 3
were convicted and sentenced to undergo imprisonment for life
and to pay a fine of Rs.25,000/- each for the offence punishable
under Section 302 IPC and to undergo imprisonment for a
period of one month for the offence punishable under Section
341 IPC. The accused are aggrieved by their conviction and
sentence and hence these appeals.
5. Heard Sri.S.Rajeev for the first accused,
Sri.K.K.Dheerendrakrishnan for the second accused,
Crl.A.Nos.304 of 2017 & con. cases
Sri.C.Rasheed for the third accused and the learned Public
Prosecutor, Sri.E.C.Bineesh.
6. Elaborate arguments were made by the learned
counsel for the accused as also the learned Public Prosecutor.
While the attempt of the learned counsel for the first accused
was to establish that the prosecution has not adduced
satisfactory evidence to prove that it was the first accused who
caused the death of the victim, the attempt of the learned
counsel for accused 2 and 3 was to establish that the evidence
on record is not sufficient to hold that accused 2 and 3 shared a
common intention with the first accused, to commit the murder
of the victim. The learned counsel for the first accused has also
contended that even assuming it was the first accused who
inflicted the stab injury on the deceased, it has not been
established by the prosecution that the death is a culpable
homicide amounting to murder. The learned counsel for the
third accused has also submitted that the third accused was a
juvenile as on the date of occurrence and therefore, the Court of
Session ought not have tried the third accused in connection
Crl.A.Nos.304 of 2017 & con. cases
with the case. The learned Public Prosecutor supported the
impugned judgment pointing out that the evidence let in by the
prosecution would certainly justify the conviction of the accused
and the sentence imposed on them. It is unnecessary to refer to
the various arguments advanced by the learned counsel for the
accused as also the learned Public Prosecutor at this point as
we propose to deal with the same elaborately, in the
succeeding paragraphs of this judgment.
7. It is seen that by two separate orders passed
on 05.04.2017 and 21.08.2019, this Court suspended the
execution of the sentences imposed on accused 2 and 3 and
they were enlarged on bail.
8. In the light of the submissions made by the
learned counsel for the parties on either side, the following are
the points that arise for consideration:
(1) whether the prosecution has established
beyond reasonable doubt that it was the first accused who
caused the fatal injury to the victim;
(2) whether the prosecution has established
Crl.A.Nos.304 of 2017 & con. cases
beyond reasonable doubt that accused 1 to 3 shared a common
intention to commit the murder of the victim.
(3) whether the prosecution has established
beyond reasonable doubt that the offence alleged in the case is
culpable homicide amounting to murder;
(4) whether the third accused was a juvenile at the
time of occurrence.
9. Although serious arguments were not
addressed against the finding rendered by the Court of Session
that the case on hand is a case of homicide, it is necessary for
us to examine the correctness of the said finding also. PW11 is
the doctor who conducted the autopsy of the deceased on
10.12.2010. Ext.P7 is the autopsy certificate. Only two injuries
were noticed by PW11 on the body of the deceased at the time
of autopsy. Injury 2 among them as described by PW11 in his
evidence reads thus:
2. Spindle shaped incised penetrating wound 2.6x 1.2cm,
gaping, vertically oblique, was seen over the left side of front
of abdomen. The wound edges were approximated and
measured again and found to be 3.1cm long. The upper end of
Crl.A.Nos.304 of 2017 & con. cases
the wound was rather rounded and the lower end rather
sharply cut. The lower end of the wound showed tailing in a
downward direction for a length of 0.3cm. The upper inner end
of the wound was 2.4cm outer to midline and 30cm below the
suprasternal notch. The lower outer end was 2.6cm outer to
midline and 33cm below the suprasternal notch. The lower
end of the wound was 114cm above the heel level. On
dissection the wound showed a track directed inwards,
downwards and to the right. Incised perforating wound of the
jejunum measuring 3cm, 6cm from the DJ flexure was seen.
The aorta showed an incised wound on its anterior surface
measuring 2cm in length and involving the full thickness of
the wall. The second lumbar vertebra showed a vertical
incised wound penetrating 0.7cm into its body. The thickness
of the anterior abdominal wall was 2.6cm. The peritoneal
cavity contained about 2litres of fluid blood. Retroperitoneal
haematoma seen over an area 25x20x3cm, extending
bilaterally and into the perinephric regions.
The cause of death of the victim as spoken to by PW11 in his
evidence is that the victim died due to injury 2 which is an
incised penetrating injury sustained to his abdomen. PW11 also
deposed that injury 2 could be produced by MO1 weapon which
was shown to him. There was no serious challenge by the
accused to the evidence tendered by PW11. In the light of the
evidence aforesaid of PW11, we are of the view that the finding
Crl.A.Nos.304 of 2017 & con. cases
rendered by the Court of Session that the case on hand is a
case of homicide, is in order.
10. Points (1) and (2): These points can be
considered together, for the findings on them are to be arrived
at on the same set of evidence let in by the prosecution. PW1 is
none other than Shyju, the younger brother of the deceased.
PW1 was cited by the prosecution as an eye-witness to the
occurrence. PW1 deposed that at about 11 p.m. on 09.12.2010,
the first accused came to his house, knocked at the door and
enquired with him, when he came out of the house, as to
whether the deceased was there at home. PW1 deposed that
when he affirmed that the deceased was at home, the first
accused told him that he wants to talk to the deceased. PW1
deposed that he then called the deceased who was sleeping
inside and when the deceased came out, the first accused led
him to the side of the canal adjoining to their house. PW1
deposed that then accused 2 and 3 caught hold of the hands of
the deceased from behind and the first accused, after uttering
"ന എന അടക റ യ ട , നന ഭമക മകള ൽ വയ കല", took out a knife from his
Crl.A.Nos.304 of 2017 & con. cases
waist and stabbed at the abdomen of the deceased and
thereafter all the three accused fled away from the scene in a
red TATA SUMO vehicle driven by the fourth accused. It was
deposed by PW1 that PW4, a friend of the deceased, was called
over telephone and PW4 came forthwith and they took the
deceased to KCM hospital. It was also deposed by PW1 that
from the said hospital, the deceased was taken to CM hospital
and since there was no surgeon in that hospital, the deceased
was taken in another vehicle to Pushpagiri Medical College
Hospital and that he died on the way to Pushpagiri Medical
College Hospital. PW1 also deposed that on the night of the
previous day, outside a bar, the deceased warned the first
accused that he shall not take along with him his brother, and
the quarrel that ensued between them from the said incident is
the cause for the occurrence. PW1 affirmed that he gave Ext.P1
First Information Statement and two subsequent statements to
the police and he identified all the accused in court. PW1 also
identified MO1 knife allegedly used by the first accused to stab
the deceased. In the cross-examination of the accused, the
Crl.A.Nos.304 of 2017 & con. cases
suggestion made to PW1 by the learned counsel for accused 1
and 2 was that the deceased suffered the injury in another
occurrence that took place at a place called Charummoodu and
it is on account of the threat posed by those present at the said
place who inflicted injuries on the deceased, that PW1 is giving
evidence against the accused. PW1 denied the suggestion.
11. PW2 is the mother of the deceased. PW2 was
also cited by the prosecution as an eye-witness to the
occurrence. PW2 also gave evidence as regards the occurrence
more or less similar to the evidence tendered by PW1, although
there were a few trivial inconsistencies in her evidence as
regards the sequence of events and the utterances allegedly
made by the first accused. PW2 also identified all the accused
and also MO1 knife allegedly used by the first accused. PW3 is
the elder sister of PW2 who is residing in a house on the
adjacent southern side of the house of the deceased. PW3 was
also cited by the prosecution as an eye-witness. PW3 deposed
that at the time of occurrence, she was standing in the front
courtyard of her house. PW3 also gave evidence as regards the
Crl.A.Nos.304 of 2017 & con. cases
occurrence more or less on the similar lines of the evidence
tendered by PWs 1 and 2. As in the case of PW2, there were
trivial inconsistencies in the evidence tendered by PW3 also as
regards the utterances allegedly made by the first accused.
Similarly, as in the case of PW2, PW3 also identified all the
accused in court and MO1 knife allegedly used by the first
accused.
12. PW4, a friend of the deceased who took the
deceased to the hospital, deposed that at about 11.15 p.m., the
deceased called him over telephone and told him that the first
accused stabbed him, and he rushed to the house of the
deceased immediately. When PW4 reached the house of the
deceased, according to him, the deceased was lying on the lap
of PW2 near the entrance of their house and blood was oozing
out from his body. PW4 deposed that he took the deceased first
to KCM hospital and after giving first aid there, he was taken to
CM hospital and from there to Pushpagiri Medical College
Hospital in another vehicle. PW4 also deposed that on the night
of the previous day, somebody told the deceased that PW1 was
Crl.A.Nos.304 of 2017 & con. cases
picking up a quarrel with others near a bar at Charummoodu,
after consuming liquor and it was the first accused who caused
PW1 to drink liquor. It was deposed by PW4 that on receiving
the said information, he along with the deceased went to meet
the first accused and warned him against the said conduct. PW5
is a neighbour of the deceased who accompanied the deceased
in the Scorpio car in which the deceased was taken to
Pushpagiri Medical College Hospital. PW5 affirmed the said fact
in his evidence.
13. PW7 is an auto rickshaw driver and he deposed
that on 09.12.2010, at about 11.30 p.m., he saw a red TATA
SUMO car parked on the side of the canal road near
Charummoodu junction and the fourth accused was standing
near that vehicle at that time. PW7 also deposed that when the
auto rickshaw driven by him reached near the said car, he saw
accused 1 to 3 rushing towards that car and leaving the place in
that car. PW13 is a relative and neighbour of the first accused.
PW13 was also a member of the local panchayat. PW13
deposed that he knows the first accused and that on
Crl.A.Nos.304 of 2017 & con. cases
09.12.2010, at about 9.30 p.m., the first accused came to his
house and requested for a knife to cut the cable of his vehicle.
PW13 deposed that he gave MO1 knife to the first accused. In
cross-examination, PW13 clarified that he saw the first accused
pushing a broken down vehicle and it was for the purpose of
cutting its cable, he gave MO1 knife to the first accused.
14. PW15 is the Scientific Assistant attached to the
District Police Office, Pathanamthitta. PW15 deposed that he
examined the scene of occurrence as directed by his superior
officers and collected dark brown coloured soil from the scene
of occurrence and handed over the same to the investigating
officer for forensic examination. PW21 is the Scientific Assistant
attached to the Forensic Science Laboratory,
Thiruvananthapuram. PW21 deposed that he collected
bloodstains from the TATA Sumo car involved in the subject
crime and proved Ext.P13 report prepared by him in this regard.
PW25 is the police officer who conducted the investigation in
the case. PW25 deposed that during interrogation, the first
accused disclosed to him that he has kept a knife at a place
Crl.A.Nos.304 of 2017 & con. cases
near the house of the deceased and that he can hand over the
same, if he is taken to that place. It was also deposed by PW25
that when the first accused was taken near the bushes on the
side of the canal on the eastern side of the house of the
deceased as led by the first accused, he took out from that
place MO1 knife and the same was seized by PW25 as per
Ext.P4 mahazar. Ext.P4(a) is the disclosure statement given by
the first accused which led to the recovery of MO1 knife. PW8 is
a taxi driver residing near Charummoodu. PW8 is also a person
who had acquaintance with the deceased. PW8 was a witness to
Ext.P4 seizure mahazar. PW8 identified his signature in Ext.P4
mahazar and also deposed that MO1 knife was recovered from
the side of the canal and the first accused was there at the time
of recovery.
15. Ext.P34 is the report of the Forensic Science
Laboratory. Item 4 in Ext.P34 report is the dark brown soil and
dry grass with dark brown stains collected by PW15 from the
scene of occurrence on 10.12.2010 and it is reported in Ext.P34
that it contained human blood.
Crl.A.Nos.304 of 2017 & con. cases
16. The aforesaid is, in essence, the evidence let
in by the prosecution to prove the guilt of the accused. Let us
now consider whether the said evidence is sufficient to prove
the guilt of the accused as found by the Court of Session. As
already noticed, the motive for the crime is the incident that
took place a few hours prior to the occurrence outside a bar
wherein the deceased warned the first accused that he shall not
take along with him his brother, PW1 to consume liquor. PW1 as
also PW4 gave evidence regarding the said occurrence. Even
though the prosecution alleges that the said incident ensued in
an altercation, in the course of which the deceased caused hurt
to the first accused, no evidence was let in by the prosecution
to show that the deceased caused hurt to the first accused. But
the fact that there was an altercation between the first accused
and the deceased a few hours prior to the occurrence in
connection with the alleged conduct of the former in causing
PW1 to drink liquor has been established satisfactorily by the
prosecution. In other words, the evidence let in by the
prosecution establishes the motive of the first accused to
Crl.A.Nos.304 of 2017 & con. cases
commit the murder of the victim.
17. The fact that the deceased suffered a stab
injury on his abdomen and he succumbed to the said injury, is
not in dispute. The dispute pertains to the questions as to who
caused the injury and the place of occurrence. As far as the
place of occurrence is concerned, the specific case of the
prosecution is that the first accused caused the stab injury on
the deceased just outside the house of the deceased by the
side of the canal, whereas, the case of accused 1 and 2 is that
the deceased suffered the fatal injury at a place called
Charummoodu. As regards the scene of occurrence, except the
suggestion made by the learned counsel for accused 1 and 2 to
PW1, there is nothing on record which indicates that the
occurrence took place at Charummoodu. The consistent
evidence given by PWs 1 to 3 is that the occurrence took place
by the side of the canal near the house of the deceased. The
said evidence has been corroborated by the report of the
Forensic Science Laboratory. It is stated in Ext.P34 that the dark
brown soil and dry grass with dark brown stains collected by
Crl.A.Nos.304 of 2017 & con. cases
PW15 from the scene of occurrence, namely, the side of the
canal adjoining the house of the deceased on 10.12.2010,
contained human blood. The oral testimony of PWs 1 to 3
together with Ext.P34 report, establish beyond reasonable
doubt that the occurrence took place by the side of the canal
near the house of the deceased.
18. As regards the assailants, as already noticed,
the evidence tendered by PWs 1 to 3, the eye-witnesses is more
or less consistent. Of course, the evidence is not consistent as
regards who called PW4 to the scene and also as regards the
utterances alleged to have been made by the first accused,
which according to us, is not very material in the context of
considering the question as to who were the assailants. The
learned counsel for the first accused vehemently argued that
while it was asserted by PW1 that it was he who called PW4 to
the scene to take the deceased to the hospital, the version of
PWs 2 and 3 on the said point was that it was the deceased who
called PW4 to the scene. Similarly, it was argued by the learned
counsel for the first accused that the version of PW1 was that
Crl.A.Nos.304 of 2017 & con. cases
PW4 came to the scene when he was called over telephone,
whereas the version as regards the said point of PW3 was that
since PW4 could not be contacted over telephone, PW1 went to
the house of PW4 to bring him down. According to the learned
counsel, in the light of the said anomalies, it is not safe to place
reliance on the evidence tendered by PWs 1 to 3. The argument
is unacceptable. First of all, PW1 did not depose that he called
PW4 to the scene of occurrence. Instead, what PW1 deposed
was only that "തടർ യ ടന കടക രൻ ഹ#ദറനന യ% ണൽ വളച. ട ൻ
ക റമ വന." The said evidence cannot be said to be inconsistent
with the evidence tendered by PWs 2 and 3 that it was the
deceased who called PW4. Of course, a further reading of the
evidence of PW3 would show that since PW4 could not be
contacted over telephone, PW1 went to the house of PW4 to
bring him down. We do not think that merely on account of the
said reason, the evidence tendered by PWs 1 to 3 is liable to be
rejected. As already noticed, the aforesaid three witnesses have
categorically deposed that on 09.12.2010, the first accused
came to the house of the deceased, led the deceased to the
Crl.A.Nos.304 of 2017 & con. cases
side of the canal adjoining the house of the deceased and
stabbed at his abdomen. There is absolutely no reason, on the
facts and circumstances of the case, to disbelieve that part of
the evidence tendered by PWs 1 to 3. It was vehemently argued
by the learned counsel for the first accused that going by the
sequence of events spoken to by PW1, there is absolutely no
chance for PWs 2 and 3 to be present at the scene at the time
when the alleged stabbing took place. Even assuming there is a
doubt whether PWs 2 and 3 were present at the time when the
first accused stabbed the deceased, the same is irrelevant
inasmuch as there is absolutely no reason to doubt the veracity
of the evidence tendered by PW1 that it was the first accused
who inflicted the fatal injury. It is all the more so since, there is
no reason to think that PW1 would not have been present with
the deceased at the time of occurrence, as the altercation
between the deceased and the first accused ensued on account
of him, and also since it was he, who brought the deceased who
was sleeping inside their house to converse with the first
accused.
Crl.A.Nos.304 of 2017 & con. cases
19. The learned counsel for the first accused
placing reliance on the decision of a Division Bench of this Court
in Vayalali Girishan and Others v. State of Kerala, 2016 KHC
204, strongly contended that the identification of the first
accused by the witnesses was not proper and it was against the
dictum in the said case. From the facts of the case on hand, it
can be inferred that the first accused had close acquaintance
with PW1. Even the very motive alleged in the case is that the
first accused caused PW1 to drink liquor and it is on account of
the said reason, the deceased who was the elder brother of
PW1 picked up quarrel with the first accused and it is the said
incident which motivated the first accused to cause the death of
the victim. In a case of this nature, according to us, in the
absence of any contention for the first accused that he had no
prior acquaintance with PW1, the identification of the first
accused by the witnesses was irrelevant.
20. It was also contended vehemently by the
learned counsel for the first accused that there is suppression of
material evidence by the prosecution, which casts a serious
Crl.A.Nos.304 of 2017 & con. cases
doubt as regards the veracity of the prosecution case. To bring
home the said point, it was pointed out by the learned counsel
that the case of the prosecution is that the deceased was first
taken by PW4 and others to KCM hospital and from there to CM
hospital, Pandalam and from there to Pushpagiri Medical
College Hospital. It was argued that though it has come out in
evidence that the deceased was given first aid at KCM hospital
and treated at CM hospital, the medical records in the said two
hospitals should have certainly been produced by the
prosecution and had they been produced in court, it would have
certainly given light to the fact as to who caused the fatal injury
to the deceased. According to the learned counsel, inasmuch as
the said documents were not brought on record, the Court of
Session ought not have convicted the accused. Of course, the
medical records, if any, in the said hospitals ought to have been
produced by the prosecution. But merely for the reason that the
medical records of the said hospitals have not been produced,
in the light of the other overwhelming evidence in the case
which establishes that it was the first accused who caused the
Crl.A.Nos.304 of 2017 & con. cases
fatal injury to the deceased, we do not think that the non-
production of the medical records in a case of this nature, is
fatal to the prosecution case. Needless to say, the finding
rendered by the Court of Session as regards the first accused
who caused the stab injury to the deceased, is perfectly in
order.
21. The sole contention urged by the learned
counsel for the second accused and the main contention urged
by the learned counsel for the third accused, is that even if it is
admitted that the said accused have accompanied the first
accused, there is absolutely no material to indicate that they
shared a common intention with the first accused to cause the
death of the victim. As noticed, PWs 1 to 3 deposed in their
evidence that it was while accused 2 and 3 were holding the
hands of the deceased from behind that the first accused
inflicted the stab injury on the abdomen of the deceased.
According to the learned counsel for accused 2 and 3, the said
part of the evidence tendered by PWs 1 to 3 cannot be believed
at all inasmuch as such a case was absent in the First
Crl.A.Nos.304 of 2017 & con. cases
Information Statement. According to the learned counsel, if that
part of the evidence is eschewed, the only evidence against
them is that they were also present when the first accused
inflicted the stab injury to the deceased. It was the argument of
the learned counsel that from the mere presence of accused 2
and 3 at the scene of occurrence, it cannot be inferred that they
shared a common intention with the first accused to cause the
death of the victim.
22. It is trite in criminal jurisprudence, that only a
person who actually commits an offence, is liable to be
punished. However, Section 34 lays down a principle of joint
liability in a criminal act, the essence of which is to be found in
the existence of a common intention. Even when separate acts
are done by two or more persons in furtherance of a common
intention, each person is liable for the result of all the acts, as if
all the acts had been done by all these persons. Section 34 is
only a rule of evidence which attracts the principle of joint
criminal liability and does not create any distinct substantive
offence. The distinctive feature of Section 34 is the element of
Crl.A.Nos.304 of 2017 & con. cases
participation in action and intention of each one of the accused
should be known to the rest of the accused. Mere participation
is not sufficient to attribute common intention. Common
intention can be inferred from proved facts and circumstances
and the same can develop during the course of an occurrence
or at the spot. This section does not whittle down the liability of
the principal offender committing the principal act but
additionally makes all other offenders liable. The question
whether the prosecution has established common intention in a
given case has to be decided on the basis of the proved facts.
In other words, the prosecution is required to prove a
premeditated intention of all the accused. Section 34 of the
Indian Penal Code, is really intended to meet a case in which it
is difficult to distinguish between the acts of individual
members of a party and prove exactly what part was played by
each of them. To attract Section 34 of IPC, no overt act is
needed on the part of the accused if they share common
intention with others in respect of the ultimate criminal act,
which may be done by any one of the accused sharing such
Crl.A.Nos.304 of 2017 & con. cases
intention. Common intention implies acting in concert.
Existence of a prearranged plan has to be proved either from
the conduct of the accused, or from circumstances or from any
incriminating facts. It is not enough to have the same intention
independently of each other [See Chhota Ahirwar v. State of
M.P., (2020) 4 SCC 126].
23. According to the learned Public Prosecutor,
inasmuch as it has come out in evidence that accused 2 and 3
accompanied the first accused to the house of the deceased
and they held the hands of the deceased from behind while the
first accused inflicted a stab injury on the abdomen of the
deceased, nothing more is required to infer a common intention
shared between the three of them to cause the death of the
victim. On the peculiar facts of this case, we have doubts in our
minds as to whether accused 2 and 3 shared a common
intention with the first accused to cause the death of the victim.
The relevant portion of Ext.P1 First Information Statement reads
thus:
"ര ത 11.00 മണയ ടകട ഞങൾ എല വര0 ഉറങ ൻ കടന. ര ത 11.15
Crl.A.Nos.304 of 2017 & con. cases
മണ യ ടകട കതകന ആയര തടവള ക ശബ0 യകട. ഞ ൻ എഴയ റ ന കതക
തറന യന ക യ; ൾ മളൻ ന സ നൽക ത കണ. "നന യ?@ഷനനനയ ട ,
അവനന ഒ വള ന , ഒര ക ര@0 പറ നനE " എയ ട പറഞ. ഞൻ
അകതക റ യ?@ഷനന വള ചണർത . യ?@ഷൻ നവള യJക ഇറങ വ യ; ൾ "ന
എന അടക റ യ ട , നന ഞ ൻ ഭമ ൽ വയ കതല" എന പറഞനക E
യ?@ഷനനയ0 വള ചനക E പടഞ റവശമള കന ൽ യറ ഡൻനറ അടയതക യപ ക ത
കണ. ഞ ന0 യ?@ഷന പറനക ന ന. അയ; യPക0 അമയ0 അപറനത വടനJ
വല@മയ0 മറ0 നവള യJക ഇറങ വന. കന J ന ഭ ഗത മളൻ ന സനന കട നത
കരമളയലള ബ ?ത0 ചനകര പളയനട പറകവശത ത മസക ഷ%ക0 അവനട
നൽക ത കണ. കന ൽ യറ ഡൻനറ അടനതത ഉടനന ന സ യ?@ഷന എതനര
നനനക E "ന ഞങനള തല ൻ വളർയ ട " എന പറഞനക E അ ളനട
ഇട; ന പറക ൽ നന0 ഒര പ ത എടത യ?@ഷന വ റത ആഞ ഒ കത ."
Deviating from the stand taken in Ext.P1 statement, PW1
deposed that accused 2 and 3 held the hands of the deceased
from behind while the first accused inflicted stab injury on him.
It is not safe, according to us, to place reliance on the said
improvement made by PW1 while giving evidence. If that be so,
the fact established in the case is only that accused 2 and 3
were present at the scene of occurrence when the first accused
inflicted a stab injury on the abdomen of the deceased. The
pointed question therefore, is whether, from the mere presence
of accused 2 and 3 at the scene, could it be inferred that
accused 2 and 3 shared a common intention with the first
Crl.A.Nos.304 of 2017 & con. cases
accused to cause the death of the victim. First of all, as already
noticed, the motive for the crime established in the case is only
that of the first accused. There is nothing on record to indicate
that accused 2 and 3 were present at the scene of altercation
that took place between the first accused and the deceased
prior to the occurrence. Be that as it may, as specifically
deposed by PW1, MO1 with which the first accused inflicted the
stab injury on the deceased, was one hidden by the first
accused in his waist. There is nothing on record to indicate that
accused 2 and 3 were aware of the fact that the first accused
carried a knife with him while they proceeded along with him to
the house of the deceased. In this context, it is relevant to refer
to the evidence tendered by PW13, the relative and neighbour
of the first accused from whom the first accused obtained MO1
knife. PW13 also, has no case that at the time when the first
accused obtained the knife a few hours prior to the occurrence,
accused 2 and 3 were with the first accused. In the aforesaid
circumstances, it is difficult according to us, to hold on the facts
beyond reasonable doubt that accused 2 and 3 shared a
Crl.A.Nos.304 of 2017 & con. cases
common intention with the first accused to cause the death of
the victim. Needless to say, accused 2 and 3 are entitled to the
benefit of doubt. Points are answered accordingly.
24. Point (3): The argument advanced by the
learned counsel for the first accused is that there is no medical
evidence in the case to show that the injury inflicted by the first
accused on the abdomen of the deceased is an injury which is
sufficient in the ordinary course of nature to cause death, to
attract the offence punishable under Section 302 IPC. According
to the learned counsel, in the absence of any formal opinion
given by the doctor who conducted the post-mortem
examination to that effect, it can only be held that the homicide
is only culpable homicide not amounting to murder and in that
case, the accused is liable to be punished only under Section
304 IPC. First of all, the question whether the injury inflicted is
an injury which is sufficient in the ordinary course of nature to
cause death is a finding to be rendered by the court on the
facts of each case, especially when the evidence that is
expected from the doctor is only their opinion. Of course, for
Crl.A.Nos.304 of 2017 & con. cases
arriving at such a finding, the opinion of the doctor is relevant.
But, merely for the reason that the doctor who was examined in
the proceedings did not depose that the injury intended and
inflicted by the assailant is sufficient in the ordinary course of
nature to cause death, it cannot be contended that the court
cannot arrive at the conclusion that the homicide is a murder.
We take this view since in terms of clause "Thirdly" of Section
300 IPC, what is to be seen by the court in a case of this nature
is as to whether the injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death and only the
court would be competent to render a finding on that issue, for
the same is rendered on a consideration of various factors
including the nature of weapon used, the part of the body in
which injury is caused etc. There would be instances like one
shooting another with a gun at point blank, one cutting the
throat of another using a sharp knife etc., on one hand and
instances where injuries suffered by the victims are such that
one cannot, without the opinion of a medical expert, hold that
the nature of injury is such that it is sufficient in the ordinary
Crl.A.Nos.304 of 2017 & con. cases
course of nature to cause death. No doubt, in the latter
category of cases, the opinion of the doctor would be relevant,
but we cannot agree to the proposition that in the former
category of cases, such opinion is mandatory. Even assuming
that the facts disclosed would only show that it is a case of
culpable homicide not amounting to murder, punishable under
Section 304 IPC, inasmuch as death is caused with the intention
of causing such bodily injury as is likely to cause death, the
case would fall only under Part I of Section 304 IPC and even in
that case, the punishment imposed on the first accused namely
life imprisonment is provided for. The point is answered
accordingly.
25. Point (4): In the light of the finding rendered
by this Court that the prosecution has failed to prove its case
that accused 2 and 3 shared common intention with the first
accused to cause the death of the deceased, it is unnecessary
to probe into this point.
In the result, Crl.Appeal No.665 of 2017 is dismissed
confirming the conviction and sentence of the first accused and
Crl.A.Nos.304 of 2017 & con. cases
Crl.Appeal.Nos.490 of 2017 and 304 of 2017 are allowed setting
aside the conviction of accused 2 and 3 and acquitting them of
the charges levelled against them.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
M.B.SNEHALATHA, JUDGE.
YKB
