Kerala High Court
Raseeb vs State Of Kerala on 9 December, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:92645
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 9TH DAY OF DECEMBER 2024 / 18TH AGRAHAYANA,
1946
CRL.A NO. 496 OF 2018
AGAINST THE JUDGMENT DATED 09.02.2018 IN SC NO.992 OF
2010 OF ADDITIONAL SESSIONS COURT - III, ALAPPUZHA
APPELLANT/ACCUSED NO.2:
RASEEB, AGED 26 YEARS, S/O.RAJA, PUTHEN VEEDU,
EAST OF MUKKAPALACKAL, CHUNGAM WARD, ALAPPUZHA.
BY ADV SRI.M.P.MADHAVANKUTTY
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.
BY GOVERNMENT PLEADER SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.11.2024, ALONG WITH CRL.A.517/2018 AND 672/2018, THE
COURT ON 09.12.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 2 :-
2024:KER:92645
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 9TH DAY OF DECEMBER 2024 / 18TH AGRAHAYANA,
1946
CRL.A NO. 517 OF 2018
AGAINST THE JUDGMENT DATED 09.02.2018 IN SC NO.992 OF
2010 OF ADDITIONAL SESSIONS COURT - III, ALAPPUZHA
APPELLANTS/ACCUSED NOS.3 TO 8:
1 RAKESH, AGED 31,
S/O.RANGANATHAN, PUTHENCHIRA VEEDU,
EASTERN SIDE OF MUKKAPALACKAL, CHUNGAM ROAD,
ALAPPUZHA.
2 SUDHAN RATHEESH, AGED 32,
S/O.DAS, PUTHENCHIRA VEEDU,
EASTERN SIDE OF MUKKAPALACKAL,
CHUNGAM ROAD, ALAPPUZHA.
3 RAJEESH, AGED 28,
S/O.RANGANATH, PUTHENCHIRA VEEDU,
EASTERN SIDE OF MUKKAPALACKAL, CHUNGAM ROAD,
ALAPPUZHA.
4 THANCY THANZIL, AGED 28,
S/O.THAJUDHEEN, THOUFEEK MANZIL,
KONNOTHUPARAMBIL, EASTERN SIDE OF MUKKAPALACKAL,
CHUNGAM ROAD, ALAPPUZHA.
5 AMBI, AGED 27,
S/O.SUBAIR, PATHU THARA VEEDU,
EASTERN SIDE OF MUKKAPALACKAL, CHUNGAM ROAD,
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 3 :-
2024:KER:92645
ALAPPUZHA.
6 SIYAD, AGED 36, S/O.SHABHEEN,
KUNDELATHUCHIRA VEEDU, EASTERN SIDE OF
MUKKAPALACKAL, CHUNGAM ROAD, ALAPPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.T.ANIL KUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,KOCHI-682 031.
BY GOVERNMENT PLEADER SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.11.2024, ALONG WITH CRL.A.496/2018 AND CRL.A.672/2018,
THE COURT ON 09.12.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 4 :-
2024:KER:92645
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 9TH DAY OF DECEMBER 2024 / 18TH AGRAHAYANA,
1946
CRL.A NO. 672 OF 2018
AGAINST THE JUDGMENT DATED 09.02.2018 IN SC NO.992 OF
2010 OF ADDITIONAL SESSIONS COURT - III, ALAPPUZHA
APPELLANT/ACCUSED NO.1:
SARATH @ PACHA
S/O. MURALEEDHARAN, KUNNITTAPARAMBIL VEEDU,
SOUTHERN SIDE OF MUKKAPALACKAL, CHUNGAM WARD,
ALAPPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.E.VIJIN KARTHIK
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.
BY GOVERNMENT PLEADER SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.11.2024, ALONG WITH CRL.A.496/2018 AND CRL.A.517/2018,
THE COURT ON 09.12.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 5 :-
2024:KER:92645
P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
-----------------------------------------------
Crl.Appeal Nos.496, 517 & 672 of 2018
-----------------------------------------------
Dated this the 9th day of December, 2024
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from S.C.No.992 of 2010 on the
files of the Court of the Additional Sessions Judge-III,
Alappuzha. There were eight accused in the case. Among
them, accused 1 to 7 were convicted and sentenced for the
offences punishable under Sections 143, 147, 148, 324, 450
and 302 read with Section 149 of the Indian Penal Code (IPC)
and the eighth accused was convicted and sentenced under
Section 109 IPC for the offence punishable under Section 302
IPC. The accused are aggrieved by their conviction and
sentence. Among them, the first accused preferred Crl.Appeal
No.672 of 2018, the second accused preferred Crl.Appeal
No.496 of 2018 and the remaining accused preferred
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 6 :-
2024:KER:92645
Crl.Appeal No.517 of 2018.
2. One Manilal died and two others sustained
injuries in an occurrence took place in a toddy shop located at
a place called Chunkappalam at about 1.00 p.m. on
10.03.2010. Manilal and one of the injured persons namely,
Shyamkumar were the employees of the toddy shop and the
other injured person was one who went there to consume
toddy. Manilal was a waiter and Shyamkumar was a cook. A
case was registered by Alappuzha South Police in connection
with the occurrence at 4.00 p.m. on the same day based on
the information furnished by Shyamkumar. The investigation in
the case revealed that the accused persons are responsible for
causing the death of Manilal and causing injuries to the other
two persons. A final report was accordingly filed in the case
against them alleging commission of offences punishable
under Sections 115, 143, 147, 148, 149, 450, 324 and 302 IPC.
3. The case of the prosecution is that there
occurred a verbal altercation on 07.03.2010 in the toddy shop
between the deceased Manilal and the eighth accused namely
Siyad, when the eighth accused went there with others to
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 7 :-
2024:KER:92645
consume toddy. It is also the case of the prosecution that later
on the same day, while Manilal and Shyamkumar were
returning home after work, there occurred a verbal altercation
on the way again between Manilal and the eighth accused
followed by a scuffle and Shyamkumar separated them and
took away Manilal from the scene. The accusation against the
accused in the final report is that the eighth accused
maintained hostility towards Manilal on account of the said
incidents and due to the said reason, as instigated by him,
accused 1 to 7 went to the toddy shop at about 1.00 p.m. on
10.03.2010, picked up a quarrel with Manilal, created a scene
of terror by throwing away bottles of toddy kept there and
when Manilal and Shyamkumar fled, fearing attack on them, to
the building adjoining the toddy shop which was used as a
kitchen, the accused followed them to that place and after
breaking open the door of the kitchen, the second accused hit
Shyamkumar on his head with a toddy bottle and the first
accused stabbed Manilal with a broken toddy bottle on his
chest and Manilal succumbed to the injuries caused by the first
accused on the way to the District Hospital, Alappuzha.
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 8 :-
2024:KER:92645
4. On the accused being committed to trial, the
Court of Session framed charges against accused 1 to 7 under
Sections 143, 147, 148, 324, 450 and 302 IPC read with
Section 149 IPC and against the eighth accused under Section
115 IPC for the offence punishable under Section 302 IPC. The
accused pleaded not guilty of the charges. Thereupon, the
prosecution examined 15 witnesses as PW1 to 15 and proved
through them 22 documents as Exts. P1 to P22. MOs 1 to 6 are
the material objects in the case. Exts. D1 to D8 are portions of
the First Information Statement and the statements of
witnesses recorded under Section 161 of the Code of Criminal
Procedure (the Code) proved at the instance of the accused.
When the incriminating evidence was put to the accused in
terms of the provisions contained in Section 313 of the Code,
they denied the same. Having found that the case is not one fit
for acquittal under Section 232 of the Code, the accused were
called upon to enter on their defence and they chose not to
adduce any evidence. Thereupon, on a consideration of the
matters before it, the Court of Session found accused 1 to 7
guilty of offences punishable under Sections 143, 147, 148,
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 9 :-
2024:KER:92645
324, 450 and 302 read with Section 149 IPC and the eighth
accused guilty under Section 109 IPC for the offence
punishable under Section 302 IPC. Consequently, they were
convicted and sentenced among others, to undergo
imprisonment for life. As noted, the accused are aggrieved by
their conviction and sentence.
5. It is seen that during the pendency of the
appeals, this Court suspended the execution of the sentence
passed against accused 3 to 8 and enlarged them on bail.
6. Heard Sri.B.Raman Pillai, the learned Senior
Counsel for accused 1 and 3 to 8 and Sri.M.P.Madhavankutty,
the learned counsel for the second accused. Sri.E.C.Bineesh,
the learned Public Prosecutor addressed arguments on behalf
of the State.
7. The learned Senior Counsel for accused 1 and
3 to 8 contended that there is no evidence in the case to
establish the complicity of the said accused in the crime. The
first and foremost argument raised by the learned Senior
Counsel to substantiate the said contention was that none of
the witnesses had identified accused 3 to 8 in court as the
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 10 :-
2024:KER:92645
assailants of the deceased and the injured persons. The
learned Senior Counsel did not dispute the fact that
Shyamkumar who was examined in the proceedings as PW1
and Nalini, the mother of Manilal who was examined in the
proceedings as PW2 to prove the occurrence, identified
accused 1 and 2. The argument as regards the evidence
tendered by PW1, however, is that PW1 did not state in his
evidence that he had not witnessed the overt act alleged
against the first accused. The argument as regards the
evidence tendered by PW2 is that there is no evidence to show
that PW2 was present at the scene at the time of occurrence.
In order to bring home that contention, the learned Senior
Counsel pointed out that the First Information Statement given
by PW1 is an exhaustive one and in the nature of and the
manner in which the said statement was given, PW1 should
have certainly mentioned the presence of PW2 at the scene in
the First Information Statement, if she was present there at the
relevant time and the non-mentioning of the presence of PW2
at the scene in the First Information Statement itself is
sufficient to infer that PW2 was not present at the scene at the
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 11 :-
2024:KER:92645
time of occurrence. That apart, it was argued by the learned
Senior Counsel that the evidence tendered by PW2 as regards
the occurrence is not consistent with the evidence tendered by
PW1. It was also contended by the learned Senior Counsel that
even assuming that PW2 was present at the scene at the
relevant time, it is not safe to place reliance on the evidence
tendered by the said witness against the first accused for, she
had no previous acquaintance with him. According to the
learned Senior Counsel, in a case of this nature, the
investigating agency should have certainly conducted a test
identification parade to ensure the identity of the accused. Yet
another argument advanced by the learned Senior Counsel is
that the evidence tendered by the witnesses who were
examined to prove the occurrence as regards the motive, is not
consistent with the motive attributed in the First Information
Statement and this creates a serious doubt as to the
genuineness of the prosecution case.
8. The learned counsel for the second accused
endorsed and reiterated the arguments advanced by the
learned Senior Counsel for accused 1 and 3 to 8. In addition, it
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 12 :-
2024:KER:92645
was pointed out by the learned counsel that in a case of this
nature, had the accused been the real assailants, their clothes
would have been stained with blood and strangely, the clothes
worn by them at the time of occurrence were not seized and
forwarded for forensic examination. According to the learned
counsel, the said conduct of the investigating agency creates a
serious doubt as to the complicity of the accused in the crime.
It was also argued by the learned counsel that at any rate, in
the absence of any evidence to establish that the accused
committed the alleged acts in prosecution of their common
object, the second accused can be convicted at the most, only
for the individual overt act attributed against him and he
cannot be made responsible for the murder of Manilal.
9. The learned Public Prosecutor supported the
impugned judgment pointing out that there are no reasons to
doubt the veracity of the evidence tendered by the injured
witness, PW1 and the mother of the deceased, PW2 as regards
the occurrence. According to the learned Public Prosecutor,
even though PW1 and PW2 did not identify the accused other
than accused 1 and 2 by their names, the said witnesses
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 13 :-
2024:KER:92645
identified accused 3 to 8 as the assailants and therefore, the
conviction of accused 3 to 7 as the members of the unlawful
assembly, cannot be said to be bad. It was also argued by the
learned Public Prosecutor that even if it is found that the
complicity of accused 3 to 8 in the crime has not been
established by the prosecution satisfactorily, the second
accused cannot escape from the liability under Section 302 IPC
merely on the ground that PW1 who was assaulted by the
second accused did not sustain fatal injuries. According to the
learned Public Prosecutor, even if it is found that the
prosecution has failed to establish that accused 1 to 7
committed the murder of Manilal in prosecution of the common
object of the unlawful assembly, the evidence in the case
would establish beyond reasonable doubt that accused 1 and 2
shared a common intention to cause the death of Manilal and if
that be so, in the light of Section 34 IPC, they are liable to be
convicted under Section 302 IPC.
10. The learned counsel for the second accused
did not dispute the fact that an accused against whom there is
no charge under Section 34 IPC, but only a charge under
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 14 :-
2024:KER:92645
Section 149 IPC, can be convicted in appropriate cases with the
aid of Section 34 IPC, if the prosecution fails to establish the
charge under Section 149 IPC. But, according to him, such a
course could be adopted in this case only if it is established
that the second accused shared a common intention with the
first accused to cause the death of Manilal. It was argued by
the learned counsel that there are absolutely no materials to
infer that the second accused shared a common intention with
the first accused to cause the death of Manilal. According to
the learned counsel, in the absence of any evidence to show
that the intention of the first accused, if at all the first accused
intended to cause the death of Manilal, was known to the
second accused, it cannot be said that they shared the
common intention to cause the death of Manilal. The learned
counsel cited the decisions of the Apex Court in Karnail Singh
v. State of Punjab, (1954) 1 SCC 104 and Chandra Pratap
Singh v. State of M.P., (2023) 10 SCC 181, to substantiate
the said argument.
11. The point that falls for consideration is
whether the conviction and sentence of the accused are
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 15 :-
2024:KER:92645
sustainable in law.
12. In the light of the submissions made by the
learned counsel for the accused, it is necessary to delve deep
into the evidence in the case. PW1 is Shyamkumar. He affirmed
in his evidence that Nalini, the mother of Manilal was also
working along with him in the kitchen of the toddy shop. Going
by the evidence tendered by PW1, Manilal was serving toddy
to the accused when they came to the toddy shop on the
relevant day and after sometime, when PW1 came out of the
kitchen on hearing the utterance, “സയ ദന പള ള ട
കളക റ ളയ “, he saw the accused throwing outside the empty
toddy bottles kept in the shop. It was deposed by PW1 that he
immediately went inside the kitchen and Manilal followed him
and when they closed the kitchen from inside, the accused
broke open the door of the kitchen and entered inside. The
version of PW1 was that when the accused attacked Manilal
thereupon, Nalini and he attempted to prevent the attack and
the second accused then hit PW1 with an empty toddy bottle
on his head. It was deposed by PW1 that when he sat down on
account of the hit, he heard Nalini uttering “കടൻമകന കതനയട “.
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 16 :-
2024:KER:92645
It was clarified by PW1 that “കടൻമകൻ” referred to by Nalini is
Manilal and Manilal was then found by him on the lap of Nalini.
It was deposed by PW1 that he could see then blood oozing
out from the left side of the chest of Manilal and by that time,
the accused fled away from the scene. It was deposed by PW1
that even though he took Manilal along with another to the
General Hospital, Alappuzha in an ambulance, Manilal died on
the way and PW1 had undergone treatment for the injury
suffered by him at the said hospital. It was deposed by PW1
that earlier on 07.03.2010, the eighth accused came to the
toddy shop along with others, and after consuming toddy, they
picked up a quarrel with Manilal and beat Vinod, another
employee in the toddy shop. It was also deposed by PW1 that
while he and Manilal were returning home after work on that
day, the eighth accused picked up a quarrel with Manilal again
on their way which ensued in a scuffle between them and that
it was he who managed the situation and moved away from
there with Manilal. It was stated by PW1 that it is on account of
that rivalry that the accused caused the death of Manilal. Even
though PW1 deposed that he gathered the names of the
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 17 :-
2024:KER:92645
accused later, it was conceded by PW1 in his chief-examination
that he was unable to identify accused 3 to 8 who were in the
dock by their names. Nevertheless, it was asserted by PW1
that the accused persons were among the assailants of
Manilal. PW1, however, identified accused 1 and 2 and
deposed that it was the second accused who assaulted him. It
was clarified by PW1 in cross-examination that the kitchen of
the toddy shop is located about 18 feet away from the main
toddy shop building.
13. PW2 is the mother of the deceased. PW2
deposed that while she was engaged in her work in the kitchen
attached to the toddy shop on the relevant day, she heard a
noise as also the sound of a bottle breaking and that she saw
immediately thereupon Manilal and PW1 entering the kitchen
and closing its door. It was deposed by PW2 that even before
they closed the door, few persons entered inside the kitchen
and attempted to attack Manilal uttering “സയ ദള ട കളക ൻ
മത ഒനക വളർള ട “. It was deposed by PW2 that she and PW1
then intervened in that physical altercation and when they
intervend, one among them hit on the head of PW1 with a
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 18 :-
2024:KER:92645
toddy bottle. It was also deposed by PW2 that when PW1 sat
down then on account of the impact of the hit, one among the
assailants stabbed on the left chest of Manilal with a broken
toddy bottle. It was affirmed by PW2 that she then told PW1
that someone stabbed Manilal. It was also deposed by PW2
that she used to call Manilal as “Kuttamon” and that when
Manilal was about to fall on account of the injury suffered by
him, she placed his head on her lap. PW2 identified the
accused in the dock as the assailants and identified the first
accused among them as the person who stabbed Manilal.
Similarly, PW2 deposed that it was the second accused who hit
PW1, and identified him also in the dock. PW2 further deposed
that she was unable to identify accused 3 to 8 who were in the
dock by their names. In cross-examination, PW2 clarified that it
was about four months prior to the occurrence that she started
working in the kitchen of the toddy shop and that she used to
come to the toddy shop every day except on Sundays by about
7 a.m. and leave the shop by about 3 p.m. It was also clarified
by PW2 in cross-examination that food was prepared at the
toddy shop on Sundays by PW1 and others and that she used
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 19 :-
2024:KER:92645
to help them by preparing a few dishes on the previous day. It
was also deposed by PW2 in cross-examination that when she
heard the noise, PW1 was not inside the kitchen and it was
immediately thereafter that Manilal and PW1 came inside the
kitchen. It was also clarified by PW2 that she is not sure as to
whether all those who entered inside the kitchen carried
bottles with them but that she is sure that it was with a broken
bottle that the first accused stabbed her son.
14. PW3 is a person who used to visit the toddy
shop. It was deposed by PW3 that on the relevant day, he had
been to the toddy shop to consume toddy along with his friend
Shiju; that after consuming toddy, while they were standing
outside the toddy shop on its western side, PW3 heard the
sound of a bottle breaking and when he entered the toddy
shop on hearing the same, PW3 found few persons throwing
the toddy bottles towards the west and one among the said
toddy bottles fell on his head and caused an injury. It was also
deposed by PW3 that while he was standing there holding his
head with his palm, he saw the accused heading towards the
kitchen of the toddy shop. It was deposed by PW3 that he then
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 20 :-
2024:KER:92645
saw Manilal and his mother entering inside the kitchen and the
accused following them. Even though PW3 did not identify all
the accused by their names, he identified accused 1 and 2 by
their names. It was also deposed by PW3 that he was taken to
the District Hospital, Alappuzha thereupon by Shiju and
another and while the doctor was stitching the wound suffered
by PW3, Manilal and PW1 were brought there and after
examining Manilal, the doctor stated that Manilal is no more. In
cross-examination, the suggestion made to PW3 by the counsel
for the accused was that PW3 is a close relative of the
deceased and that he is therefore deposing falsehood in court
on account of being relatives. PW3 denied the said suggestion.
PW5 is Shiju referred to by PW4 in his evidence as the person
with whom he was chatting outside the toddy shop at the time
of occurrence on the relevant day. PW5 gave evidence
consistent with the evidence tendered by PW3. PW5 did not
however identify accused 1 and 2 in Court as done by PW3.
15. PW4 is the licensee of the toddy shop. Even
though PW4 was cited as an occurrence witness, he turned
hostile. Nevertheless, PW4 has clarified in his evidence that
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 21 :-
2024:KER:92645
Manilal and his mother were working in the toddy shop at the
time of occurrence and among them, the mother of Manilal
was working in the kitchen of the toddy shop. According to
PW4, he was present at the toddy shop at the time of
occurrence and while he was filling toddy from the cans to the
bottles in the room attached to the toddy shop, he heard the
sound of bottles breaking inside the toddy shop and when he
came out of the room to see as to what was happening, he saw
a few persons running away from the kitchen and heard the
scream of a boy. It was deposed by PW4 that even though he
heard somebody saying “മണല ൽ വണ കടകന”, “വണ കടകന”, he
did not go there as he had a history of heart attack. When PW4
was examined by the Public Prosecutor with the permission of
the Court in terms of Section 154 of the Indian Evidence Act, it
was stated by PW4 that even though he left the toddy shop on
learning that something untoward would happen, he returned
to the toddy shop after sometime and then found Manilal lying
on his back in the kitchen with an injury on his chest and blood
oozing out from the said wound.
16. PW6 was the Fire Force Driver who took Manilal
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 22 :-
2024:KER:92645
to the hospital and PW10 was the Police officer who recorded
Ext.P1 First Information Statement from PW1. They deposed
the said facts in their evidence. PW11 was the doctor who
conducted postmortem examination on the body of the
deceased. Ante-mortem Injuries 1 to 3 noticed by PW11 at the
time of postmortem examination, as deposed by him, were the
following:
“(1) Incised penetrating wound 4x1x.5cm oblique on the front
of chest, its inner lower blunt end being 8cm to the left of
midline and 24cm below collar bone. The upper end was
sharply cut. The seventh rib underneath was seen partly cut
at the upper border (4×0.5cm). The pleural pericardial cavities
and heart was seen penetrated, producing an incised wound
1.5×0.2cm on the apex of the heart, the wound track was
seen terminated in the cavity of the left ventricle. The wound
was directed, upwards, backwards and to the right for a total
minimum depth of 4.2 cm. The pericardial cavity contained
about 100 ml of blood and 20gms of blood clots. Pleural cavity
contained about 750 ml of fluid blood. Heart was seen
contracted.
(2) Incised punctured wound 1.5×1 cm and 2 cm deep vertical
on the front of chest 0.4 cm outer and just above the wound
(injury No.1) its upper round end was 10 cm to the left of
midline and 21 cm below collar bone. The wound directed
upwards, backwards and to the right.
(3) Incised wound 0.5×0.2×0.2 cm oblique on the front of
chest 0.2 cm inner to the lower inner end of the injury No.1
7cm to left of midline and 23 cm below collar bone.”
PW11 opined that the death of Manilal was due to the
penetrating injury sustained to his chest namely, Injury 1. It
was also opined by PW11 that the fatal injury as also Injuries 2
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 23 :-
2024:KER:92645
and 3 could be caused by a broken glass bottle and that those
injuries were seen in a cluster with different dimensions. In
cross-examination, it was clarified by PW11 that an injury in
the nature of injury 1 would not be caused by an accidental fall
on a sharp edged or pointed object erected on the ground as
the same is directed upwards, backwards and the wound was
directed towards right.
17. It is based on the evidence discussed above
that the Court of Session came to the conclusion that as
instigated by the eighth accused, accused 1 to 7 formed
themselves into an unlawful assembly, trespassed into the
premises of the toddy shop, committed riot armed with deadly
weapons and caused the death of Manilal and hurt to PW1. As
noticed, none of the occurrence witnesses could identify
accused 3 to 8 by their names and they could identify only
accused 1 and 2. Even though PWs 1 and 2 could not identify
accused 3 to 8 by their names, they deposed that they were
present at the scene at the time of occurrence and that they
were the assailants of Manilal and PW1. But, going by the case
of the prosecution, the eighth accused is not a person who was
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 24 :-
2024:KER:92645
present at the scene at the time of occurrence. The statement
made by the witnesses that all the accused were present at
the scene of occurrence and they are the assailants of Manilal
and PW1 might have been a mistake committed by the said
witnesses and the learned Public Prosecutor could have
obtained appropriate clarification from the said witnesses in
this regard. However, in the absence of any such clarification,
according to us, it is not safe to place reliance on the evidence
tendered by PWs 1 and 2 to hold that accused 3 to 7 were
present at the scene at the time of occurrence. There are no
overt acts attributed against accused 3 to 7 and they were
arrayed as accused in the case solely on the basis that they
were members of the unlawful assembly formed for the
purpose of committing the murder of Manilal. In the above
background, we are constrained to hold that the prosecution
has failed to establish the complicity of accused 3 to 7 in the
crime. If that be so, not only the conviction of the said
accused, but also the conviction of accused 1 and 2 for the
offences punishable under Sections 143, 147 and 148 IPC is
liable to be set aside.
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 25 :-
2024:KER:92645
18. Coming to the complicity of the eighth
accused, as noted, the allegation is that it is at the instance of
the eighth accused that accused 1 to 7 committed the crime.
There is absolutely no evidence to prove the said fact.
Needless to say, the conviction of the eighth accused under
Section 109 IPC for the offence punishable under Section 302
IPC is also liable to be set aside.
19. The next question is as to whether the
prosecution has established beyond reasonable doubt, the
allegations levelled against accused 1 and 2. As noted, the
evidence tendered by PWs 1 and 2 in this regard appears to us
to be very much natural and convincing. Both of them have
categorically deposed the overt acts attributed against
accused 1 and 2 and identified them in court. There is
absolutely no reason to disbelieve the said evidence. As noted,
the main argument advanced by the learned Senior Counsel
for the first accused as regards the evidence tendered by PW1
was that there is no evidence to show that PW2 was present in
the kitchen of the toddy shop at the time of occurrence and
according to him, had she been present in the kitchen at the
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 26 :-
2024:KER:92645
time of occurrence, her presence there would have certainly
been mentioned by PW1 in Ext.P1 First Information Statement.
Ext.P1 is not an exhaustive statement as regards the
occurrence as argued by the learned Senior Counsel. The
relevant portion of Ext.P1 reads thus:
"കറച അധകസമയ കഴഞ അവർ മണല ലമ യ വ കതർകവ , ഉന തള
ഉണ ക ത കണ. അള3 ൾ ഞ ൻ കചണൽ ൽകകയ യരന. ഉടന മണല ൽ
നപനട കചണളലക കയറവന. അവന പറനക അവർ എല വര കട കയറവന.
ഉടന ഞ ൻ അവന തടഞ. അള3 ൾ അവ ൽ ഒ ൾ കകയൽ ഇര
കളക3നക ണ എന തലയൽ ഒ ട ച. ആ അട എന തലയനട പറകൽ
വലതഭ ഗതനക ണ മറഞ ളG വന. ഉടന അതൽ ഒ ൾ മണല ലന ഏളത
ആയധ നക ണ ഒ കത. അത അവന ഇടത മലക ത നഴ നക ണ മറഞ ളG
വന. ഉടന തന ഞ ൻ ഉചതൽ വളചകവ. കവ ളകട ഷ 3നല മറ ളK ലക ര
കട ക ൻ വ വര ഓട വന. ആളകൾ ഓട വര ത കണ അവർ എല വര കട
ഷ 3ൽ ന ഇറങ ഓട ള3 യ. ഉടന തന ഞ ൻ തണനക ണ മണല ലന മറവ
നവചനകട. അതനളPഷ ഫയർളഫ ഴ സന ആ ബലൻസ വളച ഞ ന ളല ഡങ
ക ൻ മള ഹ ന കട മണല ലന അതൽ കയറ Gകതക യ ഇവനട
നക ണവന."
No doubt, the presence of PW2 in the kitchen at the time of
occurrence is not referred to by PW1 in Ext.P1 First Information
Statement. Merely for that reason, it cannot be concluded that
PW2 was not present in the kitchen at the time of occurrence.
In the nature of the description of the occurrence in Ext.P1, we
do not agree with the argument advanced by the learned
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 27 :-
2024:KER:92645
Senior Counsel that had PW2 been present at the kitchen at
the time of occurrence, her presence would have been
mentioned by PW1 in Ext.P1 statement. Be that as it may,
even though PW4, the licensee of the toddy shop who turned
hostile to the prosecution, he endorsed the fact that PW2 was
working in the kitchen of the toddy shop for about nine months
prior to the occurrence. That apart, PW2 has given a detailed
description as to the nature of work that was carried on by her
in the kitchen of the toddy shop as also the time and days
during which she used to work there. Accused 1 and 2 have not
challenged the said evidence tendered by PW2 in cross-
examination. When the above facts were put to the learned
Senior Counsel for the first accused by this Court in the course
of the argument for his clarification, the stand taken by him
was that the first accused had no case that PW2 was not
working at the toddy shop at the relevant time and his case
was only that PW2 was not present in the kitchen of the toddy
shop on the relevant day. In other words, even according to the
first accused, PW2 was a person who would have been
naturally present in the kitchen of the toddy shop on the
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 28 :-
2024:KER:92645
relevant day. In the said circumstances, in the absence of any
evidence to infer that PW2 had not gone to work in the toddy
shop on the relevant day, we do not find any merit in the
argument that the materials on record are not sufficient to hold
that PW2 was not present in the kitchen of the toddy shop at
the time of occurrence.
20. There is also no merit in the argument
advanced by the learned Senior Counsel for the first accused
that inasmuch as PW1 and PW2 had no previous acquaintance
with accused 1 and 2, a test identification parade should have
been conducted by the investigating agency before arraying
them as accused in the case. No doubt, in situations of this
nature, it is prudent and ideal for the investigating officers to
conduct test identification parades. But, merely for the reason
that a test identification parade has not been conducted in a
given case, the evidence tendered by the eye-witnesses as
regards the identity of the accused cannot be rejected, if the
evidence is otherwise believable and acceptable. Reverting to
the facts, both PW1 and PW2 have identified the first accused
as the person who inflicted the fatal injury on Manilal, and the
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 29 :-
2024:KER:92645
second accused as the person who inflicted injury on PW1. It
has come out in evidence that immediately after the
occurrence, the investigating agency had shown to the
witnesses namely, PW1 and PW2 the said accused for the
purpose of identification and they had identified them. In other
words, PW1 and PW2 had occasion to see accused 1 and 2
again, immediately after the occurrence. As such, according to
us, it cannot be contended that the said witnesses were not
able to recollect the features of the accused so as to correctly
identify them at the time of trial. That apart, the occurrence
being one in which a person was brutally murdered in front of
his own mother, having regard to the traumatic and tragic
experience, the face of the assailants would be imprinted in
the memory of the mother and she may not err while
identifying such assailants [See Malkhansingh v. State of
M.P., (2003) 5 SCC 746]. Under the circumstances, we are of
the view that merely for the reason that there was no test
identification parade, it cannot be argued that it is not safe to
accept the evidence tendered by the ocular witnesses in this
case, as regards the identity of accused 1 and 2.
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 30 :-
2024:KER:92645
21. Likewise, there is no merit in the argument
advanced by the learned Senior Counsel for the first accused
that the evidence given by PW1 as regards the motive is not
consistent with his own description of the motive as given in
the First Information Statement. The description as regards the
motive as contained in Ext.P1 reads thus:
"കഴഞ ഞ യറ ഴ എന അടത പള രമ യ അവർ ഷ 3ൽ വച
വഴകണ യ. അതന ഞങൾ അവന ഷ 3ൽ ന തടസ പടച ഇറക
വടതൽ ഉ വള ധ നക ണ ണ."
The evidence given by PW1 in this regard reads thus:
"ഇപക മണല ലന ഉപദവക ന വള ധ ക ണ 07-03-2010
ൽ സയ ദ കടര ട ഷ 3ൽ വ രന. കള കടച ളPഷ സയ ദ
മണല ല ആയ വ ക തർക ഉണ യ. ഷ 3നല ളK ലക യ
വള ദന സയ ദ അ തല. അ കവകട ഷ 3ടച ളPഷ ഞ ന
മണല ല കട കസകളൽ വടളലക ളപ കക ആയരന. അള3 ൾ ചങ
പ ലതന അടത നവച മണല ൽ സയ ദള ട പറഞ "പ തരത
ക ള ട കളകരത എ ". ആ സമയ സയ ദ ണ കടക ര ഉണ യ .
അത കഴഞ സയ ദ മണല ലമ യ അടപട ആയ. അത ടയൽ ഞ ൻ
കയറ മണല ലന പടചനക ണ ളപ കക ആയരന. ആ സമയ
സയ ദന 3 ഉണ യ സഹതകൾ ട അടപടയൽ പനങടതല. ആ ഒര
കവ ഗcമ ണ മണല ലന നക ല ൻ പതകനള ളപ 3ചത."
A close reading of the relevant portions of the First Information
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 31 :-
2024:KER:92645
Statement and the evidence would indicate beyond doubt that
they are consistent, and the only difference is that in court,
PW1 has elaborated the motive.
22. True, as pointed out by the learned counsel for
the second accused, the investigating agency had not seized
the clothes worn by the accused at the time of occurrence nor
forwarded the same for forensic examination. No doubt, in a
case of this nature, that course should have been adopted by
the investigating agency, and had the same been adopted, the
evidence collected in this regard could have been used to
corroborate the ocular witnesses. But, merely for the reason
that the said course has not been adopted by the investigating
agency, it cannot be said that a doubt is cast as regards the
identity of the accused inasmuch as, according to us, the
evidence tendered by PWs 1 and 2 are of sterling quality and
PW1 among them was an injured witness himself and PW2 was
none other than the mother of the deceased. Needless to say,
the prosecution has established beyond reasonable doubt, the
allegations levelled against accused 1 and 2.
23. Having found that the prosecution has failed to
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 32 :-
2024:KER:92645
establish its case that accused 1 to 7 formed themselves into
an unlawful assembly and committed the murder of Manilal in
prosecution of the common object of that assembly, and
having found that it was the first accused who caused the
death of Manilal, the question that arises is whether the
conviction of the second accused under Section 302 IPC read
with Section 149 IPC could be altered to Section 302 IPC read
with Section 34 IPC. As noted, there cannot be any doubt to
the proposition that such a course is permissible in appropriate
cases of instant nature. No doubt, in the context of law and
jurisprudence, there is a distinction between the concept of
“common intention” covered by Section 34 IPC and “common
object” covered by Section 149 IPC. The common intention
provided for under Section 34 IPC refers to the shared mental
state namely, a mutual understanding or agreement to
accomplish something together, whereas the common object
provided for under Section 149 IPC refers to the outcome that
members of an unlawful assembly intend to accomplish
through their collective efforts. Both the Sections deal with
combination of persons, who become punishable as sharers in
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 33 :-
2024:KER:92645
an offence. Thus they have a certain resemblance and may, to
some extent, overlap. The overlapping arises in certain
situations, such as when a person commits a culpable act in
furtherance of the common intention shared by all or a subset
of the accused, with the participation of the accused involved
in the shared intention. In such cases, the common object of
the unlawful assembly, involves the common intention shared
by the accused who committed the culpable act with the other
members of the unlawful assembly or some of them and the
accused who shared the common intention with the accused
who did the culpable act can also be punished for the culpable
act with the aid of Section 34 IPC, for in such cases, want of a
charge under Section 34 IPC would not result in any prejudice
to the accused. In Karnail Singh, it was held by the Apex
Court that if the facts to be proved and evidence to be
adduced with reference to the charge under Section 149 IPC
would be the same if the charge were under Section 34 IPC,
then the failure to charge the accused under Section 34 IPC
would not result in any prejudice and in such cases, the
substitution of Section 34 IPC for Section 149 IPC is only a
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 34 :-
2024:KER:92645
formal matter.
24. Let us now consider the question whether the
prosecution has established that the second accused shared a
common intention with the first accused to cause the death of
Manilal. As noted, the common intention provided for under
Section 34 IPC refers to the shared mental state namely, a
mutual understanding or agreement to accomplish something
together. Common intention can be inferred from the proved
facts and circumstances and the same can also be developed
during the course of an occurrence or at the spot. Though
Section 34 IPC is generally 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, no overt act is needed on the part of the
accused, if they shared a common intention with others in
respect of the ultimate criminal act which may be done by any
one of the accused sharing such common intention and what is
required to be established is the existence of a pre-arranged
plan and participation in the commission of the crime. As
noted, there cannot be any fixed time frame for formation of
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 35 :-
2024:KER:92645
common intention. It is not essential for the perpetrators to
have had prior meetings to conspire or to make preparations
for the crime. Since common intention is a mental state of
perpetrators, it is inherently difficult to substantiate directly.
Instead, it can be inferred from the conduct of the perpetrators
immediately before, during and after the commission of the act
[Baljinder Singh v. State of Punjab, 2024 SCC OnLine SC
2622].
25. Reverting to the facts, even though it is not
established satisfactorily that accused 1 and 2 and others went
to the toddy shop on the relevant day as instigated by the
eighth accused, it has come out in evidence that they went to
the toddy shop on the relevant day and consumed toddy. It has
also come out in evidence that while doing so, there occurred a
verbal altercation between accused 1 and 2 and others on one
hand and the deceased Manilal on the other hand, and the said
verbal altercation culminated in accused 1 and 2 and others
creating a scene of terror in the toddy shop by throwing toddy
bottles kept there, resulting in causing injuries to others. It has
also come out in evidence that fearing bodily attack, Manilal
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 36 :-
2024:KER:92645
rushed to the kitchen of the toddy shop which is located a few
yards away from the toddy shop with PW1, who was then
standing outside the kitchen and they attempted to close the
door of the kichen from inside. It has also come out in evidence
that at that point of time, both accused 1 and 2 entered
forcefully inside the kitchen and attempted to attack Manilal.
Both PW1 and PW2 categorically deposed that when the
accused persons entered inside the kitchen and attempted to
attack Manilal, they intervened and it was at that stage that
the second accused hit on the head of PW1 with the toddy
bottle carried by him. In the absence of any motive for accused
1 and 2 and others to attack PW1 who was not a party to the
verbal altercation that took place in the toddy shop, it can
certainly be inferred that the second accused attacked PW1
either to enable the former to attack Manilal or to enable the
first accused to attack Manilal. In other words, a common
intention to attack Manilal could be inferred from the facts and
circumstances stated above. If that be so, according to us, it is
a fit case where the conviction of the second accused for the
offence punishable under Section 302 IPC read with Section
Crl.Appeal Nos.496, 517 & 672 of 2018
-: 37 :-
2024:KER:92645
149 IPC could certainly be altered to Section 302 IPC read with
Section 34 IPC.
In the result, Crl.Appeal No.517 of 2018 is allowed
setting aside the conviction of accused 3 to 8 in the case and
acquitting them of the charges. Crl.Appeal No.496 of 2018
preferred by the second accused and Crl.Appeal No.672 of
2018 preferred by the first accused are dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
ds