Shibu vs The State Of Kerala Represented By on 29 October, 2007

Kerala High Court
Shibu vs The State Of Kerala Represented By on 29 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1284 of 2004()


1. SHIBU, S/O. SURENDRAN,
                      ...  Petitioner
2. SIVADASAN @ DASAN, S/O. SIVARAJAN

                        Vs



1. THE STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :29/10/2007

 O R D E R
               J.B.KOSHY & K.P.BALACHANDRAN, JJ.
                       --------------------------------------
                       CRL.A.No.1284 OF 2004
                        -------------------------------------
                       Dated 29th October, 2007

                                JUDGMENT

Koshy,J.

Appellants in this case were charge sheeted for offences

punishable under Sections 143, 147, 148, 427, 449 and 302 read with

Section 149 of the Indian Penal Code. Seven others were also charge-

sheeted along with the appellants. Appellants are accused Nos.1 and 3.

They were convicted and sentenced to undego imprisonment for life each

with a fine of Rs.25,000/= each under Section 302 read with section 34

IPC . They were also convicted for offence punishable under section 449

read with section 34 IPC and sentenced to undergo rigorous

imprisonment for five years each and to pay a fine of Rs.10,000/= each.

Other accused were acquitted. The prosecution case was that deceased

Madhu is the husband of PW1 and father of PW3. PW2 is the mother-in-

law of the deceased. According to the prosecution, on several occasions

quarrels took place between the accused persons on one faction and

deceased Madhu and his friends on the other faction and they were living

on inimical terms with regard to a dispute that arose regarding the

management and ceremonies of a temple. While so, a quarrel took place

between A1 and deceased Madhu (before one and a half months of the

occurrence) at a place called Marappalam. During the first day festival

Crl.A.1284/2004 2

of the Oottara temple, somebody broken the wire of the mike drawn

along the koonanvila road. A3 and other who were the office bearers

of the said temple believed that it is deceased Madhu and his friends

who had broken the wire. Therefore, A3 and others entertained

enmity towards deceased Madhu due to the aforesaid reasons. It is

also the prosecution case that 2-3 years prior to the date of

occurrence, the deceased Madhu manhandled, the elder brother of

A2, and therefore A2 also entertained enmity towards deceased

Madhu. So, A1 to A9 in prosecution of their common object of causing

the death of deceased Madhu formed themselves into an unlawful

assembly being armed with deadly weapons like swords, chopper and

wild sticks and thereafter on 19.03.1997 at about 9.30 p.m. A1 to A4

criminally trespassed into the house known as Kazhuvoor Tunduvila

house at Kanjiramkulam village by A1 and A3 with swords and by A2

with a chopper and A1 on seeing CW12 who was taking food in his

house uttered “kill him” and CW12 on hearing the same ran away, but

A1 to A4 chased him and thereafter A1 to A4 along with A5 to A9 went

towards the house of CW4, another friend of deceased Madhu who

was residing on the western side of the house of CW12. CW4 on

seeing A1 to A4 making the commotion reached on the western side of

the house and concealed his presence in the darkness. Then A1 to A9

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broke open the northern door of the house of CW4 known as

Narayana Mandiram and committed mischief by destroying chairs and

window glasses and thereafter destroyed two coconut plants and 14

plantains. Thereafter, A1 to A9 at 10.30 p.m. criminally trespassed

into the courtyard of the tarwad house of PW1 known as Charuvila

house bearing No.KJP 3/237 in Kanjiramkulam Village on the western

side of the house of CW4 and thereafter A1 to A4 trespassed into the

front varandah of the house with swords, chopper and sticks in their

hands. Then A4 beat deceased Madhu with a wild stick on his

buttocks who was at that time sitting in the front varandah of the

house along with PWs 1 and 2 and then A1 dragged deceased Madhu

from the front varandah of the house to the courtyard of the house.

Then A4 beat him with wild sticks on the various parts of his body. A1

cut him with a dangerous sword on his leg and head and when PW1

attempted to obstruct him, A2 pushed her on the ground. Thereafter

A1 to A9 dragged deceased Madhu to the eastern lane of the house

and then after causing him to stand in the earthern bund, A1 and A3

cut him with swords on his leg and head and the other accused

persons beat him with wild sticks. Thereafter they taken deceased

Madhu to Pandarakuzhy Purambokku Lane and beat him and cut him

and thereafter A1 to A9 taken him to the Plavila road which is 134

Crl.A.1284/2004 4

metres east from the said lane and then caused him to lay in the

motorcycle being registration No.KRH 938, but deceased Madhu fell

down and then A1 by asking whether “he did not die” stamped him on

his chest. Thereafter, A1 to A9 caused deceased Madhu to lay across

the motorcycle and A3 caught hold of him by sitting in the back seat

of the motorcycle and A1 drove the motorcycle and then abandoned

him in the road margin of the Vizhinjam-Poovar road at a place called

Marappalam near the Oottara Sree Chidambaranath temple and that

deceased Madhu succumbed to his injuries on 19.03.1997 at 12.30 in

the night as a result of the fatal injuries inflicted by the accused

persons on him and thereby committed offences punishable under the

aforesaid sections.

2. PW1, wife of the deceased, who is an eye witness, went

to the Kanjiramkulam police station on 20.03.1997 at 5 a.m. and

lodged Ext.P1 F.I. Statement before PW17, the then Head Constable

of police, Kanjiramkulam Police Station. Before going into the details

of the case, we will first consider the postmortem certificate.

Postmortem was conducted by PW6 doctor. Ext.P2 is the postmortem

certificate. Postmortem was conducted on 20.3.1997 afternoon

Crl.A.1284/2004 5

at 2.15 p.m. The ante-mortem injuries noticed by the doctor in the

postmortem certificate are as follows:

“INJURIES (ANTE MORTEM)

1. Contusion 23x2x0.4 cm oblique on the back of
upper trunk across the midline, with an area of
central pallor (1.5 cm), the right upper end
being 5cm behind the middle of right collar
bone.

2. Contusion 32.x2.0.4 cm oblique on back of upper
trunk across the midline and injury No.1, with
an area of central pallor (1.5cm) the left upper
end 6cm behind the outer end of left collar
bone.

3. Contusion 29x2x0.3cm oblique on the back of
trunk across the midline, with an area of
central pallor (1.5cm) the right upper end 16
cm behind the outer end of right collar bone
and the left lower end 4 cm to left of midline at
a level 29cm above natal cleft.

4. Contusion 13×2 cm almost vertical on back of
upper trunk, the upper end being 5 cm behind
the outer end of right collar bone and the lower
end merging with the injury below.

5. Contusion 10x2x0.3 cm oblique on right side of
back of trunk, the right lower outer end
merging with the lower end of injury No.4;
18cm below outer end of right collar bone at
junction of injury No.2 & 4.

6. Contusion 28x2x0.3cm oblique across the lower
part of trunk with central pallor of 1cm, the
right lower outer end being 13 cm to right of

Crl.A.1284/2004 6

midline and 2 cm above rim of hip bone.

7. Contusion 8x2x0.4cm oblique on right side of
back of chest, the lower inner end 4 cm to right
of midline and parallel to injury No.3.

8. Contusion 8x5x0.4 cm on back and outer aspect
of right arm 3 cm below tip of shoulder.

9. Contusion 5x2x0.4 cm horizontal over right
upper arm with a central pallor of 1cm, 6cm
below tip of shoulder and 1cm in front of injury
No.8.

10. Abrasion 2.5×1.5 cm over the tip of right
shoulder.

11. Contusion 3x3x1 cm on front of right arm 3 cm
below level of injury No.9.

12. Contusion 3×1.5 cm on front of right arm 2 cm
below injury No.11.

13. Contusion 4x2x0.4 cm on front and inner aspect
of right arm 6cm in front of injury No.12.

14. Abraded contusion 3x2x0.2 cm on back of right
elbow.

15. Contusion 6x2x0.3 cm on back and inner aspect
of right forearm 1cm above the wrist.

16. Contusion 11x4x0.3 cm on back of right hand
and little finger, 3cm above its tip.

17. Incised wound 1.5×0.2×0.2cm, oblique on inner
aspect of right finger 7 cm above its root.

18. Multiple abrasions varying in size from 0.5×0.2
cm to 3.5×2 cm, in varying directions over an
area 20 x 9 cm on back of right side of trunk,

Crl.A.1284/2004 7

18cm below top of shoulder and 8 cm to right of
midline.

19. Multiple abrasions varying in size from 0.5×0.2
to 3x 1.5cm in varying directions over an area
10×6 cm on back of right side of trunk 7cm to
right of midline and 10cm above level of natal
cleft.

20. Abrasion 5×3 cm on back of trunk, 2cm to right
of midline and 6cm above the natal cleft.

21. Abrasion 2×2 cm on back of trunk in midline
18cm above natal cleft.

22. Abrasion 1×1 cm on back of trunk in midline
1.5cm above injury No.21.

23. Abrasion 7×4.5cm oblique on left side of back of
trunk, 2cm to left of midline and 7cm above
level of natal cleft.

24. Abrasion 8×2 cm on back of left side of trunk
and the buttock, 4cm below and parallel to
injury No.23.

25. Contusion 7×1.5×0.3cm oblique on right side of
hip, 4cm below the rim of hip bone.

26. Abraded contusion 5×3 cm on outer aspect of
right thigh 1.5cm below injury No.25.

27. Incised wound 2×0.2×0.2 cm oblique on outer
aspect of right thigh 8cm below injury No.26.

28. Contusion 5x1x0.4 cm with central pallor,
vertical on outer aspect of right thigh 5cm
below injury No.27.

29. Contusion 6x3x0.3cm with central pallor
oblique on outer aspect and back of right thigh,

Crl.A.1284/2004 8

the front outer end being 7cm below injury
No.28.

30. Abrasion 2x2cm on back of right leg 2 cm below
the knee.

31. Contusion 10x2x0.3 cm vertical on back of right
leg 15cm below the knee.

32. Incised wound 6×2.5x2cm on back of right leg
38cm below the knee making a superficial cut
on back aspect of the tibia.

33. Incised wound 4.5x1x1 cm on back of right leg
1cm below and parallel to inj. No.32.

34. Incised wound 7x1x1cm on back of right heel 4c
below and parallel to inj.No.33.

35. Abrasion 6x6cm on back and inner aspect of
right leg 16cm below the knee.

36. Incised wound 5.5x2x2cm on the back of left
ankle, 7cm above the heel.

37. Contusion 6×1.5×0.3cm oblique on back and
inner aspect of left thigh 9cm above the knee.

38. Abraded contusion 18×1.5×0.2cm, horizontal
over the left side of abdomen and hip, just
above the rim of hip bone.

39. Abrasion 3x2cm on left side of abdomen 4cm
above rim of hip bone.

40. Contusion 2x2x0.3cm on left side of trunk 15cm
below armpit in midaxillary line. On dissection,
the 5th and 6th rib of left side was found
fractured. The left chest cavity contained 30
ml. of blood stained fluid. The left lung was
found partially collapsed.

Crl.A.1284/2004 9

41. Contusion 10x6x0.3cm over the back and outer
aspect of left hand just below the wrist.

42. Abrasion 1.5×0.2cm oblique on inner aspect of
left forearm 8cm above wrist.

43. Abrasion 2×0.2cm oblique on back and inner
aspect of left forearm 3cm above injury No.42.

44. Abrasion 2x1cm on back of left forearm 2.5cm
below the elbow.

45. Abrasion 3.5×2.5cm on back and outer aspect of
left elbow.

46. Contusion 7x5x0.3cm on inner aspect of left
elbow and adjacent part of the arm.

47. Contusion 18x3x0.3cm with central pallor
(1.5cm) oblique on front of left arm, the upper
outer end just below tip of shoulder.

48. Contusion 8x3cm on back and outer aspect of
left arm 2.5cm below tip of shoulder.

49. Multiple small abrasions over an area 2.5x2cm
over the tip of left shoulder.

50. Lacerated wound 6×1.5cm bone deep oblique
on back of head, the left lower end being 8cm
behind the middle of root of left ear and the
right upper end 4cm to right of midline at level
of occiput with an area of contusion 7x5cm
around. Underneath the skull and meninges
were intact. Brain was congested.

51. Incised wound 2.5×0.2×0.1cm oblique on left
side of face 2.5cm in front of the ear.

52. Abraded contusion 2.5 x 2 cm over the left

Crl.A.1284/2004 10

cheek.

53. Lacerated wound 1.5×0.5×0.2 cm oblique across
the bridge of nose 1cm below its root.

54. Abraded contusion 2x1cm over the outer 3rd of
left eyebrow.

55. Contusion 3x2x0.3cm on right side of face 2 cm
outer to angle of eye.

56. Contusion 3x3cm involving the whole thickness
of upper half of pinna of right ear.

57. Contusion 8x4x0.5cm horizontal over outer
aspect of right arm 10 cm below tip of
shoulder.

58. Contusion 7x3x0.3 cm oblique on front and
outer aspect of right arm 6cm below injury
No.57.

59. Contusion 5×1.5×0.3cm on outer aspect of right
arm, 2.5cm outer to and parallel to injury
No.58.

60. Contusion 8x4x0.3cm on front and outer aspect
of right forearm 7cm above wrist.

61. Contusion 8x2x0.4cm horizontal on front of
chest 3 cm to left of midline and 18cm below
the collar bone.

62. Multiple small contusion over an area 15x4cm
on right side of chest 10cm outer to midline
and 13cm below the collar bone.

63. Multiple small abrasions and abraded
contusions over an area 22x9cm on front of
right chest and abdomen, 6cm to right of
midline and 1cm below the costal margin. On

Crl.A.1284/2004 11

dissection, the abdominal cavity contained
500ml. of fluid blood. The liver showed
multiple superficial lacerations involving its
right lobe.

64. Abrasion 5x3cm on front of right thigh 10cm
below hip.

65. Contusion 10x2cm horizontal on front and outer
aspect of right thigh 17cm below injury No.64.

66. Abrasion 3×0.3cm oblique on front of right
thigh 7cm below injury No.65.

67. Abrasion 1.5x1cm on front of right knee.

68. Incised wound 4x2x2.5cm horizontal on front of
right leg 7cm below the knee cutting into the
tibia for a depth of 2.5cm.

69. Incised wound 2.5×1.5x1cm oblique on front of
right leg 8cm below injury No.68.

70. Contusion 7x4x0.3cm on front and outer aspect
of right leg adjacent to injury No.69.

71. Lacerated wound 2×0.5×0.3cm on inner aspect
of left ankle.

72. Multiple small abrasions over an area 4x5cm on
front of left knee.

73. Lacertated wound 3x1x0.3cm oblique on front
of left leg 11cm below the knee.

74. Lacerated wound 5x2x0.4 cm on front of left leg
4cm below injury No.73.

Underneath injuries 73 & 74, the leg bones
were found fractured and fragmented.

Crl.A.1284/2004 12

75. Incised wound 2.5×0.5×0.3cm on front and
outer aspect of left wrist.

Air passages were congested. Lungs were
pale and partially collapsed. Stomach was half
full with partly digested soft meat and other
unidentifiable food materials having no unusual
smell, mucosa was normal. Spleen was
wrinkled and pale. Brain and adrenals were
congested. All other internal organs were pale,
otherwise appeared normal. Urinary bladder
was empty, normal.”

The opinion as to the cause of death as mentioned in the postmortem

certificate is that the deceased died of the injuries sustained. No

specific injury was mentioned in the postmortem certificate as to the

cause of death. PW6 during examination stated that Injury Nos.40

and 63 are independently sufficient in the ordinary course of nature to

cause death. He also stated that injury Nos.73 and 74 are also likely

to cause death. Injury Nos.32 and 68 can also contribute the cause of

death. He further stated that all the incised wounds can be caused by

weapons like MO4 series and contusions could be caused by a wild

stick like MO5 series. The above postmortem certificate shows that

the deceased was brutally murdered by causing several injuries on

him.

Crl.A.1284/2004 13

3. Now, we will come to the evidence of PW1. PW1 is the

wife of the deceased and she is a natural witness as incident started

from her house at night about 10.30p.m. on 19.3.1997. On 20.3.1997

at 5 a.m. she lodged Ext.P1 F.I. Statement before PW17 head

constable. PW1 deposed that on 19.3.1997 at 10.30 p.m. herself,

deceased Madhu, her mother and her son were talking each other by

sitting inside the house of PW2 and at that time A1 to A5 trespassed

into the house. Then A4 beat the deceased with a stick on his

buttocks, A2 cut him with a chopper on his head and thereafter her

husband was dragged towards the courtyard of the house and then

caused him to stand in the mud wall on the courtyard of the house,

closed his mouth with the lungi worn by the deceased. She also

deposed that there was a sword in the hand of A1, a chopper in the

hand of A2, a sword in the hand of A3 and A4 to A9 were holding wild

sticks and all of them beat and cut the deceased several times. She

further deposed that when her son attempted to obstruct them, he

sustained injuries on his right eye and A2 pushed herself and her son

on the ground and when they again attempted to obstruct, A5 beat

her on her shoulder and thrown her son, thereby he sustained injury

on his hand. Thereafter they dragged the deceased away and seeing

the same herself and her son ran after them. It is also stated that the

Crl.A.1284/2004 14

deceased was dragged along the channel in front of their house and

then put him at a place called Plavila and then tied him in a

motorcycle and abandoned on the road side at Marappalam near

Oottara temple and from there the deceased Madhu was taken to the

Medical College Hospital, Thiruvananthapuram and on examination

he was found dead.

4. Learned counsel for the defence argued that Ext.P1

cannot be taken as the first information statement because during

cross examination PW1 stated that police recorded another statement

before Ext.P1 F.I. Statement as she had admitted that police reached

the scene of occurrence and questioned her. But, she also stated that

she was not able to say anything to the Inspector. During cross

examination she has stated that there was no occasion to say about

the occurrence at 4 a.m. on 20.3.1997 and when she went to the

police station, she was accompanied by her mother, PWs 4, 5 and 7.

It is true that from the evidence it can be seen that there was tense

situation between the two factions regarding the conduct of temple

festival and on hearing the news police rushed to the place of

occurrence. PW1 who has seen the brutal attack on her husband was

unable to state anything and early morning at 5 a.m. she gave the

Crl.A.1284/2004 15

statement after confirming the death of her husband. We must

understand the state of mind of a wife and relatives. They must have

been shocked and terrified on seeing the brutal attack by a group of

people, dragging him and also taking the deceased in the motorcycle.

Even then there was not much delay. The deceased died at 12.30

a.m. in the early morning on 20.3.1997 and at 5 a.m. the first

information statement was given. It cannot be stated that there was

unexplained delay and a mere telephonic information will not

constitute the first information statement. The police also rushed to

the hospital where the deceased was admitted and thereafter PW1

came with the relatives to the police station and gave the first

information statement. There is nothing unnatural and we are of the

view that Ext.P1 can be accepted and prosecution case cannot be

thrown out. On getting telephonic information, police came there and

enquired about the same and the eye witness, wife of the deceased,

was unable to talk anything and after the death statement was given.

Even according to Exts.D14(a) and D14(b) police got information only

at 12 p.m. The death was only at 12.30 p.m. and people were

enquiring about what happened to the deceased at that time. When

PW17 was cross examined, nothing was asked regarding the delay.

PW18 when questioned stated that festival was going on in the

Crl.A.1284/2004 16

Oottara temple and police was busy with regard to the same and

there is nothing in evidence to show that any signed statement was

taken before Ext.P1. The alleged defects in Ext.P1 statement cannot

be fatal at all. Even otherwise, there are eye witnesses to the

incident.

5. PW2 who was also present at the time of occurrence

deposed that A1 to A4, A6 and A8 entered into her house and pushed

Madhu to the courtyard of the house who was at that time talking

with PW1 and then the accused persons who brought sticks beat

Madhu with sticks, the accused persons who brought sword and

chopper cut him with sword and chopper and when he raised alarm,

the lungi worn by him was removed and then closed his mouth with

that lungi. Thereafter Madhu was dragged towards the channel and

dragged him towards Purampokku big channel and then dragged

towards east. PW3, son of the deceased also gave similar evidence.

He deposed that A1 cut his father with a sword on both of the ankles,

A2 cut him with a chopper on his head and nose and A3 cut him with

a sword on all parts of his body. PW4 was a neighbour. According to

him, on 19.3.1997 between 10 and 10.30 p.m. A1 to A4 along with

another person dragged Madhu from the varandah of the house of

Crl.A.1284/2004 17

PW2 to the courtyard of the house and from the courtyard he was

dragged to the channel (by-lane). She also stated that she saw the

aforesaid persons cutting and beating Madhu. At that time PWs 1 to

3 were present. She flashed the torch light and then A3 uttered

obscene words against her and therefore she did not go towards the

place of occurrence. She further stated that A1 and A3 were having

swords. Ext.P15 scene mahazar shows that from the courtyard there

is a footstep in `L’ shape having a length of 8 metres 75 cms towards

east and from there towards north leading to Pandarakuzhy lane. In

the courtyard as well as in the lane broken wild sticks were found

lying being scattered and from that sticks four green sticks and two

dried blood stained sticks were seized. In the lane there were dried

blood stains here and there. It is further stated that one metre 80

cms north west from the portion of the Plavila road where

Pandarakuzhy lane joins also, there is dried blood stains and that a

shirt of blue colour with sand is also found lying there. PWs 5, 9,10

and 12 are the attesting witnesses for the recovery of MO4 series

under Exts.P7 and P10 seizure mahazars on the basis of the

confession made before PW18 Investigating Officer by A1 and A3. It

is true that the earlier incident with regard to CW4 and 12 was not

proved because CW4 reported dead and CW12 went to Gulf.

Crl.A.1284/2004 18

6. Evidence of PW5 also supports the case of the

prosecution. She is the sister of one Aji. Aji is residing on the

immediate north of her house. PW5 deposed that on the date of

occurrence at about 9.30 p.m. her brother Aji came to her house.

While they were taking dinner, A1 to A4 and others came to her

house. They caught hold of her husband Gopalakrishnan

misunderstanding that he is Aji and when she asked the accused for

what purpose they came there, they told her that they had to see Aji

and there is some problem. Aji who was present there escaped from

the house, even though the accused persons attempted to cut Aji.

She also stated that thereafter the accused persons went to the house

of deceased Madhu and one lady named Subashini came and

informed her that some persons inflicted cut injuries to Aji after

taking him at Plavila road and therefore she went there and looked

and then she could understand that it is not Aji but Madhu who was

beaten and cut. PW5 is an independent witness. Evidence of PW9

shows that on 19.3.1997 between 9 and 9.30 p.m. while he was

standing in the ground of the Oottara temple where festival is going

on, he saw A1, A3, A4 and A5 talking together and there was also

A2, A6 and A7 and that he saw A1, A3, A4 and A5 going towards east

Crl.A.1284/2004 19

in a bullet motorcycle which was found stopped there and in between

11 and 11.30 p.m. the motorcycle returned there being driven by A1.

He further stated that in the middle of the motorcycle a person was

found lying and A3 by sitting in the back seat of the motorcycle was

catching hold of that person, that the neck of the person was shaking

and that the motorcycle was driven towards Marappalam along

Vizhinjam-Poovar road. After some time, the remaining two persons

who had gone in the motorcycle came by walking. The number of the

motorcycle was KRH 938 and it belonged to A4. There were injuries

and blood on the entire body of the said person and at that time he

could not understand who was the said person, but, after 10-15

minutes a person came and told him that Madhu is lying at

Marappalam after sustaining cut injuries and he gave water to him

and then the persons who brought Madhu there uttered obscene

words against him. From cross examination of PW9 it has been

brought about regarding the two factions with regard to the

management of temple. After seeing the demeanor of the witness,

the trial court believed the evidence of PW9. PW10 identified A1, A3,

A4 and A6. He also stated that after 10 p.m. while he was taking tea

from a teashop in the side of the road infront of the temple, three

persons came there in a bike and they were A1 and A3 and in the

Crl.A.1284/2004 20

middle of the bike there was another person sitting and they went

towards Marappalam. He stated that the motorcycle was driven by

A3 and it is A1 who was sitting behind the person who was sitting in

the middle of the motorcycle. He also stated that after some time, he

went to Marappalam and saw Madhu lying in the side of the road and

there were injuries on the body of Madhu. Then he could understand

that it was madhu who was found sitting in the middle of the

motorcycle. PW18 recovered the motorcycle bearing registration

No.KRH.938 from the house known as Revathy house under Ext.P10

seizure mahazar. It was found abandoned in the southern courtyard

of the house known as Revathy house in Oottara. PW14 attestor to

Ext.P10 mahazar supported the prosecution case. It is an Enfield

Bullet Motorcycle. After analysis of the evidence it was stated that

totality of the evidence only stated about A1 and A3. PWs, 1, 2 and 3

also stated about the overt acts of A1 and A3. It is A1 and A3 who

were carrying Madhu in the motorcycle. PWs 8, 9 and 11 also spoke

about A1 and A3 carrying Madhu in the motorcycle. In the above

circumstances, according to the trial judge, prosecution failed to

prove the case against A2, A4, A6 and A9 beyond reasonable doubt.

Crl.A.1284/2004 21

7. Another contention raised by the appellants is that

since only two persons were convicted and others were not convicted

and no punishment was imposed under Section 149 IPC, conviction

under Section 302 read with 34 IPC alone is not correct. It is true

that State has not filed any appeal and we are not satisfied with the

acquittal of some of the accused as other than A1 and A3 a group of

people formed themselves into an unlawful assembly and went to the

house of the deceased and committed the offence. Postmortem

certificate shows that deceased was butchered. In this connection,

we refer to the decision of the Hon’ble Apex Court in Harshadsingh

Pahelvansingh Thakore v. State of Gujarat ((1976) 4 SCC 640)

wherein it was held as follows:

“…………… When a murderous assault
by many hands with many knives has ended
fataly, 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 circumstances that one man’s stab
falls 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 IPC
fixing constructive liability conclusively
silences such a refined plea of extrication.

Crl.A.1284/2004 22

(See: Amir Hussain v. State of UP ((1975)
4 SCC 247) and Maina Singh v. State of
Rajasthan
((1976) 2 SCC 827).”

However, in the absence of an appeal, we are not considering the

evidence against other accused who were acquitted in this case. The

court below found A1 and A3 guilty under Section 302 read with

section 34 IPC. Absence of charge under section 34 is not fatal by

itself unless prejudice is established. (William Staney v. State of

M.P. (AIR 1956 SC 116) and Dhanna v. State of M.P. (AIR 1996 SC

2478). Section 34 is applicable even if no injury has been caused by

a particular accused by himself. For applying section 34, it is not

necessary to show that some injuries are caused by the accused.

(Chinta Pulla Reddy v. State of A.P. (AIR 1993 SC 1899). Section

34 is only a rule of evidence and does not create a substantive

offence. Direct proof of common intention is seldom available and,

therefore, such intention can only be inferred from the circumstances

appearing from the proved facts of the case and the proved

circumstances. The existence of a common intention amongst the

participants in a crime is the essential element for application of this

section. The individual acts may be different in character, but, must

have been actuated by one and the same common intention in order to

attract the provision. (Ashok Kumar v. State of Punjab (AIR 1977

SC 109) followed in Anil Sharma and others v. State of Jharkand

Crl.A.1284/2004 23

((2004) 5 SCC 679).Here, overt acts of A1 and A3 in furtherance of

their common intention of annihilating the deceased is clear from the

evidence.

8. It is proved in this case that on the basis of confession

statement of A1 and A3 MO4 swords were found out and that

evidence is admissible against them. It is A1 and A3 carrying the

dead body in the motorcycle. The witnesses were examined in the

court after about seven years of the incident. Yet there is only minor

contradictions. There is no material contradictions in the evidence of

the witnesses. There is no merit in the contention that so much

injuries were caused only to inflict grievous hurt to threaten the

deceased. The fact that even after inflicting the injury A1 and A3 had

carried the injured person and thrown the body before death also

shows that A1 and A3 shared the common intention of murdering him.

Further, there were clear overt acts done by A1 and A3 which were

proved by the witnesses. The totality of the evidence would show that

the trial judge was correct in convicting the appellants (A1 and A3) for

the brutal offence committed by them. The fact that deceased was

inflicted with injuries very cruelly in front of his wife, mother and sons

and was further dragged from there while he was sitting in the house

at night talking with his wife and thereafter further injuries were

inflicted and then the injured body was abandoned shows the cruel

Crl.A.1284/2004 24

nature of the act. Even though such a brutal act was committed, only

lesser sentence that can be imposed under Section 302 was imposed.

Conviction and sentence under Section 449 read with section 34 IPC

is also justified. We see no ground to interfere with the conviction

and sentence imposed in this case.

The appeal is dismissed.

J.B.KOSHY
JUDGE

K.P.BALACHANDRAN
JUDGE

tks

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