IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 CRL.A.No. 383 of 2005(C) ------------------------ SC.13/2002 of ADDL. DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK NO.1, PATHANAMTHITTA .................... APPELLANTS/ ACCUSED: ---------------------- 1. BIJU, S/O. PAPPU, KOLLAMPARAMBIL VEEDU, MANGARAM MURI, PANDALAM VILLAGE. 2. BABU, S/O. MURALI, KOLLAMPARAMBIL VEEDU, MANGARAM MURI, PANDALAM VILLAGE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/ COMPLAINANT & STATE: ----------------------------------- 1. THE SUB INSPECTOR OF POLICE, PANTHALAM POLICE STATION. 2. THE CIRCLE INSPECTOR OF POLICE, PANTHALAM POLICE STATION. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.No.383 OF 2005 A ----------------------------------------------------- DATED THIS THE 24th DAY OF NOVEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The appellants are the accused 1 and 2 in S.C.No.13/02 of the Court of Additional District and Sessions Judge( Ad hoc), Fast Track-I, Pathanamthitta. They were found guilty of the offence under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for four years. The accused pleaded not guilty to the charge framed against them under Section 302 read with Section 34 of IPC . 2. The brief facts of the case are the following: The accused were harbouring ill-will towards the deceased Vava for the reason that he was teasing Geetha, the sister of the first accused. On 10.1.1998, the previous day of the date of occurrence, the deceased stabbed the 2nd accused and he sustained injury on his left arm. For the above reasons, on 11.1.1998 at about 2.15 PM, the accused having the common CRL.A.No.383/05 2 intention to murder Vava, attacked him at a place near their residence. The first accused was carrying a 'Muzhakkol' (a heavy wooden reaper having a length of one yard, which is an implement used by masons). On the side of the road, when they saw Vava, the 2nd accused shouted to 'beat and kill him'. Immediately, the first accused holding the above stick with both his hands, thrashed Vava three or four times. Crying with pain, Vava went to his house and both the accused went to the house of the first accused. Vava sustained injury to his spleen and it developed acute pain. He was taken to a nearby clinic and thereafter to the nearby hospital. But, he breathed his last at about 6 PM on the very same day. First information was lodged before the Panthalam Police Station by PW1, who is a relative of the deceased, residing in the neighbourhood. PW16 conducted the investigation. He prepared the inquest report, sent the body for postmortem, questioned the witnesses and completed the investigation. PW17, the Circle Inspector of Police verified the records and laid the charge before the Judicial First Class Magistrate's Court, Adoor. The case was committed for trial to the learned Sessions Judge, which in turn was made over to the CRL.A.No.383/05 3 Additional District and Sessions Judge (Ad hoc), Fast Track No.I, Pathanamthitta. From the side of the prosecution, PWs 1 to 17 were examined and Exhibits P1 to P18 were marked. Material Objects MO1 and MO2 series were produced and marked. When questioned under section 313 Cr.P.C., the accused denied the circumstance that appeared against them in the deposition of the witnesses. The learned Sessions Judge after hearing both sides, found both the accused guilty under Section 302 read with section 34 IPC and sentenced them as mentioned earlier. 3. The learned counsel Mr.T.G.Rajendran, appearing for the appellants, submitted that there is no overt act from the part of the second accused and therefore his conviction is unjustified. It is also submitted that as per the FI Statement, he has allegedly instigated the first accused to 'beat' the deceased. But, before the court, PW1 and others stated that the 2nd accused asked the first accused to 'beat and kill' the deceased. It is a clear case of embellishment to rope in the 2nd accused in the crime. Therefore, the 2nd accused is liable to be acquitted. The learned counsel further pointed out that the weapon used was only a wooden reaper which is usually carried CRL.A.No.383/05 4 by masons. So, there was no intention or preparation for the commission of the offence. Further, all the occurrence witnesses have stated that the first beating was on the legs of the deceased. It means, the vital part was not targeted. After beating three or four times, the accused 1 and 2 went to the house of the first accused and the deceased went to his house. If the intention was to kill Vava, he should have been beaten by the accused till he fell down and lay motionless. No witness said that any third party intervened and therefore, the accused let off Vava and went away. In fact after beating three or four times, they themselves went away. Therefore, even assuming the case of the prosecution is believed to be correct, the offence under Section 302 is not made out. Even if the case of the prosecution is true, the first accused could be convicted only under part (2) of Section 304 IPC. Therefore, the learned counsel for the appellants prayed for allowing the appeal. 4. The learned Public Prosecutor on the other hand submitted that the accused came with the intention of attacking the deceased. It is evident from the instigation made by the second CRL.A.No.383/05 5 accused immediately on seeing Vava. The second accused called out the first accused to beat Vava. In obedience to his direction, Vava was beaten brutally by the first accused and the victim succumbed to the injuries sustained by him. Therefore, the role of the 2nd accused is more than clear in the commission of the offence and the first accused by beating Vava using the wooden stick with tremendous force, caused the fatal injury. The second blow was targeted against the head of the deceased and if he did not ward off that using his hands, his head would have been smashed. Therefore, the intention to kill was clear and therefore the conviction under Section 302 IPC is liable to be sustained. 5. The learned Sessions Judge found that the following facts were proved. (1) The first accused inflicted three beats on the deceased using the stick carried by him. This finding is supported by the deposition of PWs 1, 2 and 3. Their deposition is supported by medical evidence also. Exhibit P7 postmortem certificate and the deposition of PW12 doctor would show that injury Nos.4, 8, 10 and 15 are CRL.A.No.383/05 6 fresh injuries caused within 12 hours before death and they can be caused by MO1 stick. (2) Vava died of injury No.4 mentioned in Exhibit P7 postmortem certificate. The said portion of Exhibit P7 reads as follows: “ Injury No.4: Contusion 14cm x 3 cm rectangular in pattern with intervening spacings, corresponding to intercostal spaces on the left side of chest, obliquely placed 12 cm outer to midline (lower end of injury) and upper end of injury situated 14 cm below arm pit. The 8th rib on left side, underneath the injury was fractured. The spleen showed a laceration 6 cm x 2.5 cm x 1 cm, involving the outer aspect and reaching upto the hilum. The splenic vein was torn at the hilum. The hilar area of spleen showed adherent blood clots. The abdominal cavity contained approximately 2.5 litres of fluid blood and 250 gms of clot. The splenic artery at the hilum showed no injury. The chest cavity contained no blood. The left lung was CRL.A.No.383/05 7 intact. The injury appears fresh (ie age of injury less than 12 hrs).” The doctor in his opinion has stated that the said injury was fatal and Vava died of it. (3) The accused were harbouring a common intention to murder the deceased. The words uttered by the second accused asking the first accused to 'beat and kill' Vava would show that both the accused were harbouring a common intention to kill Vava and therefore the 2nd accused is also liable for the offence committed by the first accused. Since the injuries were caused using a dangerous weapon with the intention to cause death, the offence committed by the accused will squarely fall under Section 302 IPC. 6. Now, we will consider whether the above findings of the trial court are sustainable in the light of the evidence on record. 7. Point No.(1): PW1 deposed that while he was standing in front of his house, he saw Vava coming from the south through the road in front of his house. He also saw the accused 1 and 2 running CRL.A.No.383/05 8 towards Vava from behind. The 2nd accused shouted 'beat and kill him'. The first accused was carrying MO1 stick, having a length of about one metre, which is used for levelling cement. The first accused beat Vava thrice. One was on the left leg. The second beating was warded off by Vava using his right hand. The 3rd beating fell on his ribs at the left side of the chest. Thereupon, Vava walked in the south direction crying 'I may not be killed'. When the witness went to the road, he saw both the accused going into the house of the first accused. He identified MO1 used by the first accused. The above deposition of PW1 remained unshaken in the cross-examination also. The above version is substantially supported by PWs 2 and 3 also. So, we hold that the finding of the trial court on the first point is correctly made. 8. Point No.(2):The second point is regarding the cause of death of Vava. The postmortem certificate Exhibit P7 and the version of PW12, the Doctor who conducted the postmortem examination, fully supports the finding of the trial court that Vava died of injury No.4. On this point also, we agree with the finding of the learned Sessions Judge. CRL.A.No.383/05 9 9. Point No.(3): Regarding the 3rd point, we find it difficult to accept the views of the trial court. We find considerable force in the submissions of the learned counsel for the appellants. In this context, we notice the following facts: 10. The accused did not carry any deadly weapons like sword stick, chopper or knife. They were having only MO1, which is usually carried by masons. Secondly, the first accused did not aim at any vital parts of the deceased for the first blow. It was only on the left leg. The second blow was stated to be aimed at the head, which was warded off by the deceased using his right hand. The 3rd blow was on the side of the chest, injuring the ribs. The accused did not continue the beating till Vava fell down unconscious and became motionless. After inflicting these three injuries, the accused went to the house of the first accused and the deceased also went in the direction of his house. If the intention of the accused was to finish him, the beating would have been continued, till Vava is killed. So, it cannot be held that they were harbouring any common intention to murder Vava. Of course, they might have harboured a common intention to inflict some injuries on Vava because of the animosity CRL.A.No.383/05 10 harboured by them arising out of the previous day's incident of stabbing the second accused. The teasing of the sister of the first accused might have been another reason which provoked them to attack Vava. We further notice that, in the FIR, there was only a direction by the second accused to the first accused to 'beat' Vava. But, before Court the witnesses have stated that the second accused asked the first accused to 'beat and kill' Vava. The same can only be an embellishment made with an intention to rope in the 2nd accused also in the crime. So, the common intention shared at the best can only be to inflict some injuries on the deceased. So, the third finding of the learned Sessions Judge, mentioned above cannot be upheld. 11. The next point to be considered is, in view of our finding on point No.3, what is the offence committed by the accused. Going by Explanation (2) of Section 299, the offence committed by the accused will definitely come under the definition of culpable homicide. But, going by the facts proved,the weapon used and the conduct of the accused in going away after beating the victim thrice,they would show that the offence committed by them would CRL.A.No.383/05 11 fall under part (2) of Section 304 of IPC. The act is done by them with the knowledge that it is likely to cause death, but without the intention to cause death. Therefore, we hold that the finding of the trial court that the accused have committed the offence under Section 302 IPC is unsustainable. The offence committed by them will come under part (2)of Section 304 IPC. The second accused is also liable to be punished for the offence under the above Section, because from the facts proved, it is evident that he also shared the common intention to inflict injury on the deceased as contemplated under Section 34 of the IPC. 12. In view of the above finding, the conviction and sentence imposed on the accused 1 and 2 under Section 302 of Indian Penal Code, by the Additional District and Sessions Judge (Ad hoc), Fast Track Court-I, Pathanamthitta in S.C.No.13/02 is set aside. The first accused is sentenced to undergo rigorous imprisonment for four years for the offence under part (2) of Section 304 read with Section 34 IPC and also to pay a fine of Rs.25,000/-. If the fine is not paid, the first accused shall suffer rigorous imprisonment for a further period of one year. If the fine is paid or recovered, the CRL.A.No.383/05 12 same shall be paid to the legal heirs of the deceased. The second accused is found guilty of the offence under part (2) of Section 304 read with Section 34 of IPC. It is ordered that the imprisonment suffered by him upto this date is sufficient punishment for the offence committed by him. He is convicted and sentenced accordingly. 13. In the result, the second accused shall be set at liberty forthwith, if his detention is not required in connection with any other case. The Criminal Appeal is disposed of as above. K.BALAKRISHNAN NAIR,JUDGE. dsn M.C.HARI RANI, JUDGE. CRL.A.No.383/05 13 K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.No.383 OF 2005 ----------------------------------------------------- DATED THIS THE 24th DAY OF NOVEMBER, 2008 GIST OF THE JUDGMENT Balakrishnan Nair, J. xxxxxxxx xxxxxx xxxxxxx In view of the above finding, the conviction and sentence imposed on the accused 1 and 2 under Section 302 of Indian Penal Code, by the Additional District and Sessions Judge (Ad hoc), Fast Track Court-I, Pathanamthitta in S.C.No.13/02 is set aside. The first accused is sentenced to undergo rigorous imprisonment for four years for the offence under part (2) of Section 304 read with Section 34 IPC and also to pay a fine of Rs.25,000/-. If the fine is not paid, the first accused shall suffer rigorous imprisonment for a further period of one year. If the fine is paid or recovered, the same shall be paid to the legal heirs of the deceased. The second accused is found guilty of the offence under part (2) of Section 304 read with Section 34 of IPC. It is ordered that the imprisonment suffered by him upto this date is sufficient punishment for the CRL.A.No.383/05 14 offence committed CRL.A.NO.383/05 2 by him. He is convicted and sentenced accordingly. In the result, the second accused shall be set at liberty forthwith, if his detention is not required in connection with any other case. The Criminal Appeal is disposed of as above. K.BALAKRISHNAN NAIR,JUDGE. dsn M.C.HARI RANI, JUDGE.