Prathap & Anr vs State Of Kerala

2. The appellants along with eight other persons were tried by the Sessions Court, Kollam, in Sessions case no. 564/1999 for the offences punishable under Section 114, 143, 147, 148, 120(B) & 302 read with Section 149 of Indian Penal Code. It was the case of the prosecution that the deceased Kochukuttan and Murali (CW-11) had assaulted the appellants on 19.5.1997 "at 9.00 p.m. at a place at Chaithram Restaurant" run by the appellant Devakumar @ Jayakumar. Seeking revenge, the two appellants, Rajeev (A3) and Venu (A4) assembled at Chaithram Restaurant at Veliyam junction on 20.6.1997 at 7.45 p.m. and hatched a conspiracy to murder Kochukuttan. On 24.6.1997, all the ten accused in furtherance of a common object, armed with deadly weapons such as swords, iron rods, chopper, knife and stick etc. came to Chaithram Restaurant in a jeep KL-2B/9938. 2 The jeep, which belonged to CW-16, was driven by Venu (A4). All the accused came out of the jeep at a place in front of the restaurant. Accused Prathap (hereinafter referred to as A1) and Rajeev (hereinafter referred to as A3) were in the front whereas Padmachandran (A5) to Deepu (A10) followed behind them. They came to a place in front of Harishree Bakers on the Eastern side of Kottarakkara Oyoor Public Road at Veliyam junction at about 7.45 p.m. At that time, the deceased was talking to PW-1 Hareendranathan. A3, Rajeev, called Kochukuttan by saying "Kochukuttan Come here". Thereafter, appellant no. 1 Prathap (A1) assaulted the deceased with his sword and caused an injury on his head. At the same time, appellant no. 2 (A2) shouted "cut this man". He was also armed with a sword and made a cut with the same on the side of the chest of the deceased. As a result of the injuries, Kochukuttan fell down on the road on the side of 3 the verandah of Harishree Bakers. Thereafter, Padmachandran (hereinafter referred to as A5), Arjunan (hereinafter referred to as A6), Siddikishan (hereinafter referred to as A7), Saji @ Sajith(hereinafter referred to as A8), Rajesh(hereinafter referred to as A9) and Deepu(hereinafter referred to as A10) are alleged to have inflicted various injuries with their weapons such as iron rods, chopper, sword, knife and stick. After causing mortal injuries to Kochukuttan, the assailants left the place in the same jeep in which they had arrived. The deceased was moved to the hospital initially in a car driven by CW-14. However, the lights of the car developed some problem and the deceased was transferred to the jeep driven by CW-15. Kochukuttan succumbed to the injuries at 8.10 p.m. on 24.6.1997. Upon completion of the investigation, the ten accused were put on trial. The prosecution cited PW-1, PW-

2. PW-4 and PW-5 to PW-10 as eye-witnesses. It is 4 noticed by the High Court that PW-6 to PW-10 were declared hostile as they did not fully support the prosecution story. PW-3 was examined mainly to prove the criminal conspiracy which had been hatched at the hotel of Chaithram owned by A2, appellant in Criminal Appeal No. 873 of 2003 in the High Court. The trial court convicted A1, A2, A5, A6 and A7 under Section 302 of IPC and sentenced them to imprisonment for life and fine of Rs. 20,000/- each, in default to undergo R.I. for a period of 6 months. A1, A2, A5, A6 and A7 were also convicted under Section 149 and sentenced to R.I. for 1 year each. A1, A2 and A4 were also convicted of the offence under Section 120B IPC and sentenced to R.I. for 5 years each. Accused A3 and A8 to A10 were acquitted.

3. The two appellants herein challenged the aforesaid judgment by filing Criminal Appeal No. 873 of 2003 and 432 of 2003 before the High Court. The other 5 accused persons filed Criminal Appeal No. 319/2003, 400/2004, 422/2003, 479/2003. State of Kerala preferred Criminal Appeal No. 901/2003 against the acquittal of 5 accused persons. All the appeals were heard together by the High Court and decided by a common judgment dated 28.6.2004. The appeals filed by the two appellants herein against the conviction and sentence under Section 302 IPC read with Section 149 of the IPC were dismissed. However, the conviction of these two appellants under Section 120(B) was set aside. The appeals filed by the State against the acquittal of A3 and A8 to A10 were also dismissed. At the same time, the appeals filed by accused no. 4, 5, 6 and 7 were allowed and their conviction as well as the sentence was set aside. These two appeals have been filed by the two appellants against the judgment of the High Court rendered in Criminal Appeal No. 873 and 432 of 2003.

6) Incised punctured wound 2.5x1x6.5 cm oblique on the right side of root of neck, its lower inner blunt end being 2 cm, above the injury No. 5. The upper outer end was sharply cut. The wound was directed downwards, forwards and the left through the muscle plane.

20) Incised penetrating wound 2.5x1 cm obliquely placed on the back of left side of trunk, the lower inner sharply cut end was 5.5 cm outer to midline and 7 cm below root of neck. The outer end of the wound showed splitting of the skin. The chest cavity was scan penetrated through the Vth intercostal space, after cutting the upper border of the Vth rib. The upper lobe of the back aspect of the lung was scan punctured 2x05x4 cm. The left chest cavity contained 300 ml. of fluid blood. The track of the wound was directed downwards and forwards to the right. The total minimum depth of the wound was 14 cms."

16. We see no reason at all to disbelieve the evidence of the eye-witnesses. The weapons used by the appellants and the injuries caused have been specifically mentioned by PW1 and PW2. There were 20 ante mortem injuries on the deceased. Recoveries of the swords used by them were made at the instance of the appellants. Recoveries of other weapons, clothes worn by the accused on the day of the assault were also made at the instance of the other accused. As stated above, medical evidence also leads to the conclusion that the death has resulted from the injuries caused by the appellants and the other accused with their respective weapons. In view of the proven facts, in this case as noticed by the trial court, the High Court and by us above, it becomes evident that the appellants had acted with a common object to eliminate the deceased.

17. In the present case we are unable to accept the submission that the appellants were perhaps unaware that the murderous assault, intended to be committed by them, would, in all probability, cause the death of Kochukuttan. We have earlier noticed that both the trial court as well as the High Court have considered the specific injuries caused by the appellants with swords. As noticed above, there were 20 ante mortem injuries on the deceased. According to the opinion of the doctor, the 27 death was due to injuries caused on the chest and on the left palm. It is further observed that the death could also have resulted from the cumulative effect of all other injuries. Therefore, there is no manner of doubt that Kochukuttan died as a result of injures caused by the appellants along with the other accused.

20. In our opinion the trial court as well as the High Court rightly convicted the appellants as the facts and circumstances of the case unequivocally prove the existence of the common object of the appellants. They had come looking for Kuchukuttan armed with deadly weapons with the intention of causing grievous bodily injuries. There was a preplanned attack. They located him and caused serious injuries with swords, choppers and other weapons, which led to his death. Thus they were rightly convicted and sentenced for the offence under Section 302/149 IPC.

21. We are also of the considered opinion that the concurrent views taken by the trial court as also the High Court cannot be said to be either clearly illegal or manifestly erroneous and do not call for any interference under Article 136 of the Constitution of India.

22. In view of the above, both the appeals are dismissed.