Joseph Varghese vs State

Govinda Pillai, J.—Accused 1, 2, 4 to 9 and 13 are the appellants. They were convicted for offences under different sections of the Indian Penal Code and the sentences passed against them were directed to run concurrently so that the resulting sentence on each of the appellants was rigorous imprisonment for life. The case before the lower Court was against 18 accused persons of whom all except the appellants were acquitted.

The prosecution case was briefly as follows: One Varkey was living with his wife P.W. 8, sons P.Ws. 1 to 3 and daughters P.Ws. 6 and 7 in Vadakkedathu house at Memuri. There was a communist party in the locality headed by the 1st accused. The Police had registered a case against accused 1 and others for certain alleged illegal activities. The communist party was under the impression that Varkey and his sons were rendering assistance to the Police by giving them timely information regarding the activities of the communist party. They had also refused to join the communist party.

So, the 1st accused, along with thirty others, entered into a criminal conspiracy for doing away with the lives of Varkey and the members of his family and for destroying the house by setting fire to it. With this object in view, they formed themselves into an unlawful assembly and proceeded to Vadakkedathu House, having armed themselves with deadly weapons such as guns, lances, choppers, explosives, knives and stones, on the night of 30-3-1950. They reached Varkey''s house at about 2 O''clock in the night.

Varkey was sleeping on the outer Verandah of his house. On reaching the place the accused fired guns and explosives so as to strike terror in the people of the locality and then set fire to the house. The other members of the family, along with their guest P.W. 5, were sleeping inside the rooms. All the outer doors of the house were guarded in order to prevent the inmates from escaping. They attacked Varkey with the buttend of the guns and with lances and choppers so that he sustained thirty injuries.

Having disabled him thus, accused 5 and 18 and others set fire to the house. When the house was on fire, the inmates, that is P.Ws. 1 to 3 and 5 to 8 opened the northern and western doors of the Northern room and rushed out, when they were attacked by some of the accused. These persona sustained injuries. One Pulavan, who was a member of the accused party, struck P.W. 8 with a lance. He was about to strike her against, when her son P.W. 2 beat him on his head with a rice-pounder. Pulavan fell down and died soon after.

Hearing the tumult a neighbour P.W. 4 came to the scene of occurrence. He was stopped by accused and attacked causing injuries on him. He lay there unconscious. After the death of Pulavan, all the accused left the place. Varkey expired at about 5 O''clock in the morning. No one stirred out of that compound that night. P.Ws, 4 and 6 to 8 were sent early in the morning to the Athirampuzha hospital for treatment. P.Ws. 1 and 2 remained at the spot, where their father was lying dead.

Hearing some news about this occurrence, P.W. 27 a Head Constable attached to the Kuruppumthara Police Out-post came to the scene early next morning, that is on 31-3-1950. P.W. 30 the Assistant Superintendent of Police, Meenachil, also arrived there soon after. The occurrence took place within the jurisdiction of the Ettumanoor Police Station. P.W. 33, who was the Inspector in charge of the Police Station was then away in Moovattupuzha on court duty. He was informed of the occurrence by a phone message and he hurried to the spot and reached there at about 10 a.m.

Under the directions of P.W. 30, the Inspector P.W. 33 held inquests over the dead bodies of Varkey and Pulavan. Later, in the evening, P.W. 33 went to the hospital and recorded the statements of the injured persons. The F.I.R. was prepared by him at about 10-30 p.m. In that, 23 persons were entered as having taken part in the occurrence. Of these 7 were left out at the time the final charge sheet Ex. XXVI which was prepared by the Police on 28-4-1950 and a few others, who are accused 11 to 17 were added. A case had also been registered against P.W. 2 for causing the death of Pulavan.

But later on that was referred by the Police ostensibly on the ground that P.W. 2 had acted in defence of himself and of his mother. P.Ws. 3, 4 and 8 were sent to the Kottayam hospital from the Athorampuzha dispensary for treatment. They were discharged on 13-4-1950. The charge was laid against 31 persons of whom one was deed and another died during the enquiry by the Magistrate. Eight persons were still absconding and 3 were discharged by the Magistrate himself, who enquired into the case. The learned Judge, after trial, acquitted accused 3 and 10 to 17 and convicted the remaining accused as follows:

Accused No. 1. Under Ss. 120B, 148, 302 read with Ss. 34 and 149, 324, 436 read with Ss. 149 and 429 read with S. 149, I.P.C.

Accused Nos. 2 and 4. Under Ss. 120B, 148, 302 read with Ss. 149, 324, 436 read with Ss. 149 and 429 read with S. 149, I.P.C.

Accused No. 5. 120 (B), 148, 302 read with Ss. 149, 436 and 429, I.P.C.

Accused Nos. 6, 7 and 8. 120(B), 148, 302 read with Ss. 149, 324, 436 read with Ss. 149 and 429 read with S. 149, I.P.C.

Accused No. 9. 120(B), 148, 302 read with Ss. 149, 437 read with Ss. 149 and 429 read with S. 149, I.P.C.

Accused No. 18. 120(B), 148, 302 read with Ss. 149, 436 and 429, I.P.C.

The prosecution case, that Varkey died as the result of the injuries sustained by him on the night of 30-3-1950 and that P.Ws. 1 to 4 and 6 to 8 sustained injuries at the same time and place, was not disputed. Exts. Y, Z, AA, AB, AC, AD and AE are the certificates for the injuries found on P.Ws. 1, 2, 7, 6, 3, 8 and 4 respectively. Ex. W is the post-mortem certificate on the dead body of Varkey. All these were issued by the Medical Officer P.W. 35. Varkey had 30 external injuries and 3 internal injuries piercing the left lung. His death was due to syncope as the result of shock and haemorrhage caused by the injuries sustained, and noted in Ext. W. Varkey''s body was lying in Vadakkedathu house, in Memuri at the time When Ex. A inquest on his body was prepared.

It would also be seen further that the house in that compound had been burnt and that two sheep belonging to Varkey also had died. The condition of the building is given in detail in the Mahazar attached to Ext. A. Without any doubt, it can be inferred that P.Ws. 1 to 4 and 6 to 8 sustained injuries on the night of 30-3-1950 and that Varkey died because of the injuries sustained by him the same day. It is also evident that the house in Vadakkedathu compound had been destroyed by fire.

It was the prosecution case that the 31 accused persons were led to this compound by the 1st accused in order to wreak vengeance on Varkey and the members of his family. Shri Raghava Kurup, the learned Advocate who appeared for the appellants before us, had first contended that, even if it be taken that the communist party was against Varkey, there were also other persons equally inimical towards Varkey and his people. He referred us first to Ext. XXVII a sale deed of 25-4-1117 executed by P.W. 8 for a portion of Vadakkedathu compound and the building thereon in favour of the wife of one Lukka, who was a neighbour.

In 1122, Varkey filed a suit O.S. 24 of 1122 in the Ettumanoor Munsiff''s Court for setting aside Ext. XXVII and other alienations relating to Vadakkedathu house and for a declaration of his title to and possession of Varkey''s compound and the house therein. The 1st defendant there was Lukka and the 3rd defendant was Lukka''s wife. They had filed a joint written statement Ex. XV on 18-5-1122 where it had been stated that they were in possession of a portion of Vadakkedathu compound, conveyed to them.

It was, therefore, argued for the appellants that there was a dispute as to the possession of the compound between Varkey and his children on the one hand and Lukka and his associates on the other. P.W. 8, while she was examined, had stated that Lukka, with two others, was seen in that compound at the time of the occurrence abetting Pulavan to do away with her. Though the lower Court had accepted that Lukka and others were in the compound the statement of P.W. 8 that he was instigating Pulavan had been disbelieved. The evidence of the independent witnesses P.Ws. 4 and 10 and of others was to the effect that Varkey was residing in the house in the property in Vadakkedathu compound at the relevant time.

There is absolutely nothing to show that this version of the prosecution is wrong. Lukka also could not have been a party to the setting fire to a house to which he was laying a claim. So, it is abundantly clear that possession of Vadakkedathu compound and the building was with Varkey at the time of the occurrence. The argument based on Exts. XIV, XV and XXV does not appear to be sound or acceptable.

The prosecution case was that all the accused conspired together to do away with Varkey and the other members of his family and to destroy his house by setting fire to it. For purpose, they marched into the compound at dead of night, armed with deadly weapons such as guns, lances, choppers and explosives. The oral evidence regarding the conspiracy was not accepted by the learned Judge. The presence of the accused, who were convicted, was found as a matter of fact from the evidence adduced. The lower Court, from the circumstances proved in the case and from the overt acts done by the several accused inferred the conspiracy and found that them was an unlawful assembly with the common object, as mentioned above.

The accused had several motives for the attack on Varkey and his family. In their statement before the Court below, accused 1, 2, 5, 6, 13 15 and 17 had admitted that they were members of the communist party. This party had grievances against Varkey and his sons. P.Ws 1, 2 and 3 had given evidence that they used to supply information to the police about the communists in that locality. They were doing so for a year and a half before the occurrence. Even before the date of occurrence, Varkey had complained that he was assaulted by accused 1, 2, 5 and one Gopalan and he had also filed a criminal case against these people for the alleged assault.

About 15 days before this occurrence, there was a case against some members of the communist party for attempted murder and P.W. 3 had given certain information regarding the same. Accused 1 and 2 in their statements had admitted that the police had registered cases against them for the alleged illegal activities. There were also cases against accused 9 and 18 for alleged assault on policemen. There was, therefore, no cordial relationship between the 1st accused and his party on the one hand and Varkey and the members of his family on the other. They were on inimical terms. The communist party had, therefore, a motive against Varkey and this would, to some extent, support the prosecution version of the conspiracy alleged.

It is not always possible to give direct evidence about conspiracy. It can be inferred from the circumstances proved. If at dead of night, a number of people entered a house armed with deadly weapons such as guns, lances, choppers and explosive it cannot be with any legitimate object. The weapons themselves were of dangerous nature and if there is any evidence to show that the accused persons had the use of one or the other of the weapons in inflicting injuries on Varkey and the members of his family, it is easy to infer that they proceeded to the scene with the common object that was to be achieved by the use of such dangerous weapons.

When dealing with the evidence, it would be shown that accused 1, 2, 4 to 8 and 18 committed acts of violence. Some among them, particularly accused 5 & 18, had also set fire to the house. The effect of an the overt acts of the accused was the death of Vaskey by violence, the destruction of the house by fire and the infliction of injuries on P.Ws. 1, 2, 4 and 6 to 8. The evidence was also to the effect that, after the brutal attack on Varkey, the house was set fire to and then some of the accused guarded the doors to see that none of the inmates escaped alive. It was, therefore, sufficiently clear that their common object was the destruction of the lives of the inmates of the house.

In cases of conspiracy, held in - ''Harsha Nath Chatterjee v. Emperor'', AIR 1915 Cal 719 (A), and - AIR 1933 977 (Lahore) , and - ''Thakin Ba Sein v. Emperor'', AIR 1937 Rang 161 (C), the agreement between the conspirators cannot generally be directly proved, but only inferred from the established facts of the case. A conspiracy need not be established by evidence of an actual agreement between the conspirators and overt acts raise a presumption of an agreement, and knowledge of the purpose of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy.

Overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases, as in the present one, it is only by means of overt acts that the existence of the conspiracy can be made out. To prove conspiracy it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. A conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose, in common between them.

In a case of conspiracy, when there is no direct evidence, inference from proved circumstances must, to a large extent, form the basis of the court''s conclusion, but in dealing with such cases based on circumstantial evidence, an inference of guilt may be drawn only when the circumstances are such as to be incapable of any other reasonable interpretation. These general principles, which are gathered from text books and decided cases, when applied to the facts mentioned above, would show beyond the shadow of any doubt that the persons, who trespassed into Vadakkedathu compound had set fire to the house there and had done to death Varkey besides also causing injuries to the other inmates had entered into a criminal conspiracy.

This would prove criminal conspiracy among those persons to murder Varkey and the members of his family and to cause destruction of the house by fire. It is, therefore, clear that all the accused persons, who took part in the acts, had an unlawful object in view and every one of them is liable for the acts of every other of his companions. The application, therefore, of Ss. 120B), 148 and 149 and 34, I.P.C., by the lower Court was fully justified.

The evidence could now be referred to so as to find the several offences committed by the accused. Varkey was attacked and the injuries were caused on him by hitting with the buttend of guns, by stabbing with lances and by cutting, with choppers. P.W. 10 had sworn that he witnessed Varkey being attacked by the 1st accused and some of his companions. He had also stated that he witnessed accused 5 and 18 setting fire to the house at two corners. Varkey died some three or four hours after he sustained the injuries. P.Ws. 1, 8, 9 and 21 had sworn that Varkey had mentioned to them that the injuries on him were caused by the 1st accused and others.

P.W. 2 had sworn that the 1st accused had beaten him on the thigh with a gun. He had also attacked P.W. 4, The evidence of P.Ws. 2, 3, 4 and 6 bear testimony to the part played by the 1st accused, who had, as his weapon oft offence, a gun. The 2nd accused, had beaten P.W. 1 with a lance and that is sworn to by him. The 2nd accused was also at the scene of occurrence. That was sworn to by P.W. 8. P.Ws. 9 and 11 had seen accused 1, 4, 6 and 7 leaving the scene immediately after the occurrence. P.Ws. 2 to 4 and 6 speak to the 4th accused pelted P.W. 4, with a stone. The 6th accused had stabbed P.W. 4 three times with a dagger and that is sworn to by P.Ws. 3 and 4. He had also cut P.W. 8 on the forehead.

The 7th accused had beaten P.W. 7 with an iron rod. The 8th accused, who is a brother of the 4th accused, had, as sworn to by P.Ws. 4 and 6, beaten P.W. 6 with a lance. P.W. 10 had sworn that accused Nos. 5 and 18 had set fire to the house. The part played by the several accused, as sworn to by the witnesses mentioned above, is accepted by the learned Judge as well as by the assessors, who helped him in the trial of the case. We do not find any reason to disagree with the appreciation of the evidence by the learned Judge. The part thus played by the several accused would go to support the conviction of the accused for offences under criminal conspiracy and unlawful assembly with the common intention referred to already.

The learned Advocate for the appellants had argued that the evidence for convicting accused 9 and 18 was not sufficient. As regards the 18th accused, we have no doubt that he had taken part in the proceedings there and the specific overt act attributed to him was his setting fire to the house as sworn to by P.W. 10. As regards the 9th accused, the learned Judge himself has held in para 79 of his judgment that no overt act was proved against him. The charge was that he pelted P.W. 4 with stones and assaulted P.W. 7. P.W. 7 alone spoke in the Sessions Court about the attack on her.

In her statement Ex. XI, before the Police, this act of pelting stones against P.W. 4 had been attributed by her to the 7th accused and one Vattapara Mani and not the 9th accused. In her statement Ex. XII in the Magistrate''s Court she had mentioned the name of the 9th accused as the assailant, but when she was asked to point out that person she pointed out the 1st accused. P.W. 8 had stated that the 9th accused was one of the persons who had guarded the doors preventing the inmates from getting out. That portion of her statement was not accepted by the learned Judge. Apart from this, there is no evidence against the 9th accused and so, the conviction entered against him cannot stand. He has to be acquitted.

As regards the 18th accused, he was a member of the unlawful assembly and he had set fire to the house. So, he cannot escape from the consequences of the act done by his companions. He had been convicted for the main offence under Ss. 436 and 429 because, it was the view of the lower Court that two sheep met with their death as a consequence of setting fire to the house. He had also been convicted under S. 302 read with S. 149, I.P.C. Sections 120(b) and 148 are common to all the accused and no separate sentence had been passed. Thus the conviction against the 18th accused and the sentences passed on him will stand.

Sections 120B) and 148 of the Penal Code are applied to all the accused and so no separate mention of these offences is necessary when the case of each of the accused is dealt with. The 1st accused had attacked Varkey and was responsible for murdering him. Varkey had mentioned the 1st accused as one of the assailants. P.Ws. 1, 8, 9 and 21 speak to this.

Thus, the conviction against the 1st accused for the offence under Ss. 302 read with 149, I.P.C. will stand. He had beaten P.W. 2 on the thigh with a gun.

He had also attacked P.W. 4, who became unconscious because of the injuries sustained by him. For the acts of violence on P.Ws. 2 and 4, he was convicted under S. 324, I.P.C. and sentenced to undergo rigorous imprisonment for 2 years under each count. He had also been convicted for offences under Ss. 436 and 429 both read with S. 149 and given a consolidated sentence of rigorous imprisonment for five years. The conviction against the 1st accused and the sentence passed on him are proper and no interference in them is called for.

As regards the 2nd accused he was convicted under Ss. 302, 436 and 429 all read with S 149. He was also convicted under S. 324 for beating P.W. 1 with a lance. These convictions were properly made. The conviction and sentence passed on the 2nd accused will stand.

The 4th accused had pelted stones at P.W. 4 and he was convicted for the offence under S. 324. He was also convicted under Ss. 302, 436 and 429 each read with S. 149. The evidence of P.Ws. 2 to 4 and 6 would support this and no interference is, therefore, called for in the conviction and sentence passed against the 4th accused.

The specific act alleged against the 5th accused was the setting fire to the house by himself and the 18th accused. These two persons committed this act and the evidence of P.W. 10 on this point is definite. Both these accused were convicted for the main offence under Ss. 436 and 429 and they were also convicted for offences under the other sections because of their constructive liability. The conviction of accused Nos. 5 and 18 and sentences passed against them will stand.

The 6th accused had stabbed P.W. 4 three times with a dagger and this is sworn to by P.Ws. 3 and 4. He had also cut P.W. 8 on the forehead. Thus, the conviction of accused Nos. 6 and 8 for the main offence under S. 324 and for the offences under Ss. 302, 436 and 429 each read with S. 149 are proper. No interference in the convictions and the sentences passed against them are therefore called for.

The 7th accused beat P.W. 7 with an iron rod and the 8th accused beat P.W. 6 with a lance. These witnesses are believed and for the main offence under S. 324, the conviction entered against them was proper. They were also convicted under Ss. 302, 436 and 429 each read with S. 149. The convictions and the sentences passed against them are proper and hence they will stand.

In the result, therefore, we confirm the convictions and the sentences passed against accused 1, 2, 4 to 8 and 18 and dismiss the appeal so far as they are concerned. The appeal by the 9th accused, is allowed for the reasons stated above. He will be set at liberty forthwith.