Uthaman and 2 others vs State of Kerala

Narendran, J.—Accused 1 to 3 in Sessions Case No. 77 of 1981 of the Court of Session, Trichur are the appellants in this Criminal Appeal. The Court of Session convicted, accused Nos. 1 and 2 under S. 302 I.P.C. and under S. 302 read with section 34 I.P.C. and sentenced them to undergo life imprisonment. All the accused were also convicted for the offence under S. 448 I.P.C. and under S. 448 read with S, 34 I.P.C. Accused Nos. 1 and 2 were awarded life imprisonment for the offence under S. 302 I.P.C. All the accused were awarded simple imprisonment for 3 months for the offence under S. 448 I.P.C. read with S. 34 I.P.C. There was also a direction that as far as accused 1 and 2 concerned the sentences awarded under S. 448 I.P.C. will run concurrently with the life imprisonment. The prosecution case in short is as follows: On the night of 17-3-1981 at about 9.30 p.m. the deceased Jose and P.Ws. 1, 4, 5, 6 and 7, the other members of the household were offering prayers. They were living at a place called Pattithadam at Pazhanji. The deceased Jose was sitting on a bench on the front Verandah of the house and offering prayers while the others were inside the house. While they were praying, 7 people came there and they beat Jose. Jose cried aloud. Then P.W. 1 Seemon, his brother, and P.Ws. 5 and 7, his father and mother respectively came out. The accused persons beat Jose with bamboo sticks on forehead, head and arms. The other four who came along with the accused beat P.Ws. 5 and 7 and P.W. 1 with bamboo sticks when they tried to resist the attack on the deceased. P.W. 5 sustained an injury on the right scapula while P.W. 7 sustained an injury on the right hand. Accused and the other persons who accompanied them then left the place.

The deceased and the other injured were taken in a taxi to the Kunnamkulam Government Hospital. P.W. 1 went to the Kunnamkulam Police Station the same night and gave Ext. P-1, First Information Statement before P.W. 14, the Sub Inspector of Police at 11-15 p.m. Crime No. 62 of 1981 was registered against the 3 accused and 4 other persons.

Jose succumbed to his injuries on 18-3-1981. On the basis of Ext. P-14 report filed by P.W. 14 S. 302 I.P.C. also was incorporated in Crime No. 62 of 1981. Investigation was taken up by P.W. 15, the Circle Inspector of Police. He conducted the inquest on the dead body of Jose at the Hospital and Ext. P-13 is the inquest report. P.W. 2 conducted the postmortem and Ext. P-2 is the certificate. On completing the investigation the charge sheet was filed before the Judicial Magistrate of the First Class, Kunnamkulam who committed the case to the Court of Session, Trichur.

Before the Court of Session Exts. P-1 to P-18 were marked and P.Ws. 1 to 15 were examined on the side of the prosecution while on the defense side Exts. D1 to D18 were marked. Exts. Cl to C4 were marked as Court Exhibits and CWs. 1 and 2 were examined as court witnesses. M.Os. 1 to III are the material objects produced. Ext. P-3 is the wound certificate of the deceased Jose issued by P.W. 2 while Exts. P-4 and P-5 are the wound certificates of P.Ws. 7 and 5 respectively issued by P.W. 2. Ext. P-9 is the mahazar for recovery of M.O. 1 while Ext. P-10 is the mahazar for the recovery of M.O. II.

The court of session came to the conclusion "that Jose died because of the injuries inflicted on him and that the cause of death was shock and haemorrhage because of the injuries caused and the injuries can be caused by beating with hard object like the bamboo sticks. The court of session further came to the conclusion that accused 1 and 2 were individually and collectively responsible for causing the death of Jose and that they were hence guilty of the offence punishable under S. 302 I.P.C. and under S. 302 I.P.C. read with S. 34 I.P.C. They were also found responsible for house trespass punishable under S.448 I.P.C. As far as accused 3 is concerned, the court came to the conclusion that since no overt-act has been alleged against him in the charge sheet he cannot be held responsible for the offence under S. 302 read with S. 34 I.P.C. But he was found liable under S. 448 I.P.C. and under S. 448 read with S. 34 I.P.C. Accordingly the court convicted the accused and sentenced them as mentioned earlier in this judgment. It is the above conviction and sentence that are challenged by the accused in this appeal before this Court.

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The fact that Jose died is not disputed. From the evidence of P.W. 2, the Doctor, who conducted the post-mortem and from Ext. P-2, the postmortem certificate, it is clear that Jose died because of the injuries sustained by him. The evidence of P.W. 2 is to the effect that the fracture of the skull sustained by Jose caused injuries to the brain and that could in the ordinary course cause death. So, the conclusion of the Court of Session that Jose died as a result of the injuries sustained by him does not call for any interference.

The further question is whether there is evidence to connect the accused with the crime, and even if the accused are responsible for the injuries sustained by Jose, whether they can be convicted under Sec. 302 read with Sec. 34 I.P.C.

The learned counsel for the appellants contended that this is a case where motive is not proved and hence it is not safe to convict the accused on the basis of the interested testimony of his relatives without any corroboration by independent witnesses. Simply because motive is not proved, it cannot be said that no conviction can be entered if there is convincing evidence of eyewitnesses. The absence of motive can only be a circumstance relevant in assessing the evidence adduced. In many cases, only the accused who is responsible for the crime, knows the reason for committing the same. In this connection, reliance can be placed on Rajinder Kumar and Another Vs. The State of Punjab, wherein the Supreme Court has held:

The motive behind a crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence. The circumstances which have been mentioned above as proving the guilt of the accused Rajinder are however not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action. (Para 11).

It was then contended that all the witnesses are near relations of the deceased, there are contradictions in their evidence and without corroboration by independent evidence it is not safe to convict the accused. The learned counsel pointed out that though there are neighboring houses, no neighbor was, as a matter of fact, examined in this case and this is a fact which has to be taken into account before confirming the conviction of the accused by the Court of Session. In Ram Ashrit v. State of Bihar (1981 Crl. L.J. 484) the Supreme Court has held:

When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities.

In Machhi Singh and Others Vs. State of Punjab, one eye-witness in each of the two incidents involved was a near relation of the deceased. In one case, Nankobai examined as P.W. 20, was an inmate of the house where the incident took place and she sustained an injury by gunshot on her head. The Court held that her presence at the house at the relevant time was therefore natural. It cannot be disputed that she being an injured witness her evidence is entitled to great weight. In the other case, Parobai examined as P.W. 2, was none other than the wife of the deceased. The incident took place at 1a.m. in the night. The Supreme Court relied on her evidence pointing out that her presence at her own house at night time was but natural and confirmed the conviction of the Court of Session, affirmed by the High Court. In this case, no doubt, the eye-witnesses, P.Ws. 1, 4, 5, 6 and 7 are near relatives of the deceased who were residing with him. The incident took place at 9-30 p.m. Their presence at the house at that time cannot easily be disputed. P.Ws. 4, 6 and 7 are women. Not only that, it took only a few minutes for the accused to inflict the injuries on the deceased and escape. The neighbors could reach the place of occurrence, which is the house of the deceased, in the normal course only within a few minutes. So, by the time the neighbors turned up, the accused could escape and that was what happened also. The investigating officer had, as a matter of fact, questioned the neighbors. But, they were not made witnesses because they told the Police that they did not see the occurrence. In such a case, the non-examination of the neighbors cannot be taken as a circumstance against the prosecution.

Now, coming to the evidence of the eye-witnesses, P.W. 1 has clearly spoken to all the material aspects of the incident. Hearing the cry of the deceased, he came out of the house and saw the accused beating the deceased with bamboo sticks. P.Ws. 5 and 7, the father and mother respectively of the deceased and P.W. 1, followed P.W. 1 to the verandah. They also saw the accused beating the deceased with sticks. The other two eye-witnesses, P.Ws. 4 and 6, sisters-in-law of the deceased, saw the incident standing inside the room where they were offering prayers along with P.Ws. 1, 5 and 7. They have also clearly identified the accused. The reasons given by P.Ws. 4 and 6 for knowing the accused prior to the incident are also quite convincing. P.Ws. 5 and 7 being old people, could not identify the accused, because, according to them, their eye-sight was poor. But, the also saw the accused inflicting blows on the deceased. In the above facts and circumstances, there is no reason to hold that simply because no independent witness was examined, the evidence of P.Ws. 1, 4, 5, 6 and 7 cannot be acted upon. Their evidence is quite convincing. They corroborate each other on material particulars and the contradictions, if any, are only of a minor nature. For the above reasons, it cannot be said that the Court of Session was in the wrong in believing the eye-witnesses to come to the conclusion that the accused were responsible for the injuries inflicted on the deceased Jose.

The learned counsel then contended that in view of the fact that A3 was acquitted, A1 and A2 can be convicted only if individual overt-acts are proved against them. According to the learned counsel, no witness has said as to which of the accused inflicted which injury on the deceased. Hence, the learned counsel pointed out that the conviction of A1 and A2 u/s 302 read with section 34 I.P.C., acquitting A3 of the same offence, could not stand. According to the learned counsel, if at all A1 and A2 can be convicted, it can only be u/s 325 I.P.C. In Baul and Another Vs. State of U.P., the Supreme Court has held:

No doubt the original prosecution case showed that Sadhai and Randeo both hit the deceased on the head with their lathies. One is templed to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of this accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai have of the character which will bring his case within S. 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under S. 325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of S. 302 for an office under S. 325, Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years.

In Sohan Lal and Others Vs. The State of U.P., the Supreme Court held:

The evidence does not show that the accused had inflicted the lathi blow on the head of the deceased, therefore, conviction u/s 302 simpliciter is not justified. The State not having appealed against the acquittal of the co-accused u/s 302, I.P.C., read with Section 34, appellant''s guilt under these sections cannot be considered. A11 the accused who attacked and injured with dangerous weapons with the common intention of causing grievous injury will be convicted u/s 325, read with Section 34.

In Ram Narain Singh and Others Vs. State of Bihar, the Supreme Court held:

The above finding as well as the broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material oh record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence u/s 325, read With Section 34, Indian Penal Code.

In the above case, no previous enmity between the accused and the deceased was established and the occurrence was an offshoot of a trifling incident. In Ashok Kumar Vs. State of Punjab, the Supreme Court was of the view that the conviction u/s 326 read with section 34 I.P.C. entered by the Court of Session and upheld by the High Court ought to have been u/s 302 read with section 34 I.P.C. The Court said:

The common intention, according to the learned Sessions Judge and the High Court, was to cause grievous hurt to the deceased and it was on this footing that the learned Sessions Judge and the High Court convicted Kewal Krishnan of the offence u/s 326 read with section 34. We very much doubt whether the learned Sessions Judge and the High. Court were right in taking the view that the common intention of the three assailants was merely to cause grievous hurt to the deceased. As many as four injuries were inflicted on the deceased by knives and out of them, one was on the head and three were on the chest. Having regard to the weapons used by the three assailants, the number of injuries caused by them and the vital parts of the body on which the injuries were inflicted, it does appear that the common intention of the assailants was to cause the death of the deceased and Kewal Krishan could, therefore, have been convicted u/s 302 read with Section 34. But unfortunately the State has not been vigilant in enforcement of the criminal law and regrettably it has not preferred an appeal against the acquittal of Kewal Krishan u/s 302 read with section 34, with the result that his conviction u/s 326 read with section 34 must stand. And if that be so, consistency compels us to reach the conclusion that the appellant also must, on the same basis, be convicted u/s 326 read with Section 34 instead of section 302 read with section 34. (Para 5)

But the Court did not interfere since there was no appeal by the State. In the above case, there was no evidence that the appellant inflicted the fatal injury, and going by the evidence, an unidentified assailant inflicted two of the three injuries. In the above circumstances, the Supreme Court held:

It is, therefore, not possible to say that the prosecution has established beyond reasonable doubt that injury 3 which was the fetal injury, was caused by the appellant. The possibility cannot be ruled out that it was injury 2 which was caused by him and hence the conviction of the appellant for the offence u/s 302 cannot be sustained and for the individual injury caused by him, he can be convicted only u/s 324. (Para 4)

In Devi Lal and Another Vs. The State of Rajasthan, interpreting section 34 I.P.C., the Supreme Court held:

Under section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words ''in furtherance of the common intention of all'' are a most essential part of section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a pre-arranged plan. On the other hand, section 149 of the Indian Penal Code speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between ''common intention'' under S. 34 and ''common object'' u/s 149 is of vital importance. The Sessions Court fell into the error of convicting the appellants u/s 302 read with Section 34 of the Indian Penal Code by holding that if a number of persons assault another with a stick mercilessly their intention can only be to murder that man or at least they should know that they are likely to cause death of the person concerned. This aspect of their being likely to cause death would be relevant u/s 149 and not u/s 34 of the Indian Penal Code for the obvious reason that u/s 34 it has to be established that there was the common intention before the participation by the accused. (Para 14)

In Ram Lal Vs. Delhi Administration, The occurrence involved was an attack by four persons with lathies and sticks and two lathi blows on the head resulted in the death. There was no evidence as to which of the two blows proved fatal. The Court held:

No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing, on behalf of the Delhi Administration, contended, that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court, which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant''s conviction u/s 302, I.P.C. was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only u/s 325, read with section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Therefore, we set aside the conviction u/s 302, I.P.C. and convict the appellant u/s 325, read with section 34, and sentence him to five years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. (Para 8)

In Harshadsingh Pahelvansingh Thakore Vs. The State of Gujarat, the Supreme Court held:

When a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that one man''s stab fall on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. Section 34 I.P.C. fixing constructive liability conclusively silences such a refined plea of extrication. (Para 7)

The Court further held:

Even if some out of several accused are aquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision. (Para 8)

In this case, the fact that A3 was not convicted u/s 302 read with section 34 I.P.C. cannot be taken advantage of by A1 and A2. As per the charge filed by the Police, no overt-acts were alleged against A3. Going by the charge framed by the Court of Session also, overt-acts were alleged only against A1 and A2. It was under the above circumstances that A3 was not convicted u/s 302 read with section 34 I.P.C. So, this cannot be a reason for not convicting A1 and A2 simply because there is no evidence that any particular injury was inflicted by any particular accused. There is evidence that the accused inflicted blows on the head of the deceased with bamboo sticks. Though these blows resulted in the death of the deceased, the question is whether there can be any conviction u/s 302. The weapons used are by no means lethal, being bamboo sticks. Not only that, there is no evidence that the accused had the common intention to kill the deceased. At the most, what is revealed by the evidence in the case is that the accused had a pre-arranged plan to cause grievous hurt to the deceased. For a conviction u/s 302 read with section 34 I.P.C. it is not enough that a number of persons attacking another mercilessly with sticks should have known that they were likely to cause death to him. It must be brought out that there was a pre-arranged plan to kill him. In this connection, no eye-witness has said as to which of the accused inflicted which blow on the head of the deceased. One or more blows on the head of the deceased might have resulted in his death, but that by itself is not enough to prove the offence u/s 302 read with section 34 I.P.C. In the absence of any evidence that there was a pre-arranged plan to kill the deceased, A1 and A2 cannot be convicted u/s 302 read with section 34. We find that they can be convicted only under section. 325 read with section 34 I.P.C. for causing grievous hurt to the deceased though the injuries inflicted by the accused resulted in his death.

A3 who was convicted by the Court of Session u/s 448 I.P.C. and sentenced to simple imprisonment for three months has also appealed against his conviction and sentence. He escaped a conviction u/s 302 read with section 34 I.P.C. along with A1 and A2 because, going by the charge filed by the Police, no overt-act was alleged against him. But, his presence at the place of occurrence has been spoken to by the eye-witnesses and the evidence is that some at least of the eye-witnesses knew him before the occurrence. Not only that, their evidence in this regard has not been successfully challenged before the Court of Session. In the above circumstances, there is no reason why this Court should interfere with his conviction and sentence. In the result, we convict A1 and A2, instead of section 302 read with section 34 I.P.C., for an offence u/s 325 read with section 34 I.P.C., set aside the sentence of imprisonment for life, and sentence them to rigorous imprisonment for five years. Their conviction and sentence u/s 448 I.P.C. are upheld. Simple imprisonment for three months awarded to them will run concurrently with the other sentence. The appeal is allowed to the extent indicated above and dismissed in all other respects.