Ali vs State of Kerala

Chettur Sankaran Nair J.

Appellant along with six others, stood trial for offences under sections 120(B), 380, 450, 457, 461, 397, 307 read with section 34 IPC before the Court of session, Palakkad Division (Assistant Sessions Judge, Ottapalam). While the other accused were acquitted appellant was found guilty of the offences under sections 457, 380, 307 and 397 read with section 34 IPC. He was sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- for each of the offences under sections 457 and 380, and to rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/-for each of the offences under sections 307 and 397. The appeal is directed against the conviction and sentence. On 26-10-88 at or about 11 p.m. P.W. 1 returned to his house from a religious discourse in the neighborhood, whither he had gone. He then found the lights in the house switched on. When he entered it is said that the appellant (A1) and some others attacked him with lethal weapons attempted to strangle him and walked away with two suit cases containing valuable articles, after injuring him.

A little later P.W. 3 grand father of P.W. 1 came to the house and found P.W. 1 lying injured. He then took P.W. 1 to the Government Hospital, Pattambi in the jeep belonging to P.W. 4 P.W. 21 doctor in charge of that hospital examined P.W. 1 and referred him to the Medical College Hospital, Trichur. Ext. P6 is the wound certificate issued by P.W. 21. That hospital, in turn, referred P.W. 1 to the Medical College Hospital, Calicut. P.W. 29 Assistant Professor examined P.W. 1 at the Medical College Hospital. the wound certificate issued by P.W. 29. He noticed injuries, including a fracture on P. W. 1.

On the basis of intimation received from the hospital P.W. 26 the Head Constable registered Ext. P1 (a) first information report and investigation was taken up by P.W. 28. M.O. 1 stick found at the scene of occurrence was recovered under Ext. P3 mahazar as also M.O. 10 chap pals, M.O. 11 dhoti and M.O. 12 towel. To cut a long story short, on this evidence, appellant and others were sent up for trial. Appellant denied the charges.

Acting largely on the evidence of P.W. 1 the court below convicted the appellant. Learned counsel for appellant submitted that the evidence on record does not justify the conviction: after the acquittal of six accused. According to him, non-mention of the weapon of offence in the first information report is fatal to the prosecution case. He submitted further that no-recovery of the stolen articles and non-production of the X-ray photo mentioned by P.W. 29, erode the credibility of the prosecution case.

P.W. 1 states that the appellant. inflicted a first injury on his face, as soon as he entered the house. He adds that tome others also rained blows on him. According to counsel, appellant can be convicted only of the offence u/s 323 IPC on the basis of the evidence. PWs. 21 and 29 give clear evidence, about the nature of injuries sustained by P.W. 1. Ext. P6 wound certificate issued by P.W. 21 and Ext. P29 wound certificate issued by P.W. 29 reveal the exact nature of injuries. P.W. 21 noticed multiple abrasions and contusion on the face and neck and tenderness over cervical spine. P.W. 29 states that an X-ray of the skull was taken and that it revealed a fracture of frontal bone on the left tide of skull. In the light of what the Assistant Professor (P.W. 29) noted, it will be puerile to think that P.W. 1 suffered only simple injuries falling u/s 323. Though the other accused were acquitted, their identity was not established, the trial court found that appellant and another/others inflicted the injuries. If the findings were that only the appellant caused injuries on P.W. 1, the argument of counsel would have been attractive.

It is not the law that a conviction cannot be entered u/s 34 or 149 IPC, if the identity of one accused alone is proved. Common intention can be shared by an ascertained accused and unascertained persons. This view finds acceptance in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, . The decision in Khujji receives affirmation on principle in Hoshiar Singh and others Vs. State of Punjab, though the fact of that case were different. Ascertained accused is liable to be convicted invoking section 34, if it is proved that there were others who acted in furtherance of common intention even if the identity of such others do not stand proved. Such is the case here. Court below found that there was more than one participant in the crime, though the identity of only one was established. The charge u/s 34 or 149 cannot be repelled.

Evidence of P.W. 1. shows that more than one person was inside the closed house at an unusual hour, when no one else was in the house, that they were together not by accident, but only in furtherance of their common intention to do some act, that they acted in concert, and that the injuries were inflicted in pursuance of the design conceived and shared by the appellant and the others. It follows that appellant is liable for all the injuries inflicted on P.W. 1 even assuming that it was not he who, inflicted the injuries.

I am unable to assent to the submission of counsel, that a doubt arises in favour of the accused. It is not every lingering or fanciful doubt which can be regarded as a reasonable doubt. A doubt must be reasonable, and it must be such that reasonable person would entertain. Doubts of a fleeting nature, approximating vague hunches cannot pass muster, for reasonable doubts. It is well to bear in mind the observations of the Supreme Court in State of U.P. Vs. Krishna Gopal and Another, :

Doubts must be actual and substantial doubts as to the guilt of a person arising from the evidence, or from the lack of it, an opposed to vague apprehensions. A reasonable doubt is not an imaginary, trivial or possible doubt... Uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.

When section 34 is clearly attracted, and when medical evidence leaves no doubt about the nature of injuries, infirm imaginary doubts masquerading as reasonable doubts cannot induce unmerited acquittals. One must bear the caution administered by Viscount Simon in Stirland v. D.P.P. (AIR 1944 P.C. 315), quoted with approval by the Supreme Court, in State of U.P. Vs. Anil Singh, .

A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other.

Appeal lent is liable for all the acts, committed by him and others in the course of the same transaction, in furtherance of their common intention.

The injuries are of a serious nature and there is a fracture of skull. Yet, learned counsel argued that in the absence of production of the X-ray photo grievous injury con not be found. I do not agree. It is not the X-ray plate or print that affords proof, but the understanding of it by the doctor and his forming an opinion that is decisive of the matter. The further contention that non-recovery of the suit cases or the objects therein, falsify the charge of dacoity/robbery, is too transparent to stand scrutiny. When P.W. 1 has clearly stated that valuable properties were taken away after causing hurt to him, - and if that evidence is believed, that will establish the charge. It does. It has then to be considered whether the offence u/s 307 is made out. Counsel argued that M.O. 1 stick is not a dangerous weapon. Weapons cannot be classified by their appearance or size. They should be classified with references to the injuries, they cause also. There are no hard and fast rules in this regard. The nature of the weapon can legitimately be inferred by the nature of the injuries caused. The evidence of P.W. 29 shown that P.W. 1 sustained fracture of skull. He suffered other injuries as well. The argument of counsel that the nature of the weapon was not mentioned in the first information report may be noticed. A first information report is not a catalogue nor does one except a just informant, disoriented in mind, and in distress to give such graphic details. Though appellant may be entitled to benefit of doubt, as far as 307 is concerned, he is clearly guilty of the offence u/s 320 IPC. The conviction and sentence u/s 307 have to be set aside and appellant can be convicted u/s 326 IPC.

The next question is whether the appellant is liable to be convicted for the offence of dacoity. He cannot be. Then is no evidence or finding that five or more persons participated in the act. The finding is only that appellant and another, or others (number not found) committed the offence in respect of property, causing hurt. Appellant can be convicted only for the offence u/s 390, and not 397.

Conviction u/s 457 has to be uphold, as there is clear evidence that appellant committed house trespass by night to commit an offence punishable with imprisonment of more than five years. In the result while affirming the conviction and sentence u/s 457, conviction and sentence for the other offences are set aside and appellant is convicted for the offence u/s 326 IPC and sentenced to rigorous imprisonment for five years. He is also sentenced to pay a fine of Rs. 5,000/- (Five thousand) in default of which he will suffer rigorous imprisonment for a further period of one year. Appellant is convicted u/s 392 IPC and is sentenced to suffer rigorous imprisonment for five years. He is also sentenced to pay a fine of Rs. 5,000/- (Five thousand) in default of which he will suffer rigorous imprisonment for a further period of one year. The sentences will run concurrently.

Subject to this modification, the conviction and sentence are confirmed and the appeal is partly allowed.