Judgment :- 1. Pw.1 Christudas and Pw. 2 Simon are brothers. They reside together at Parasala by the side of a road leading from the Trivandrum Nagarcoil road to the sooth. Both are drivers in the K.S.R.T.C. On 21-1-1984 pw. 2 had to report for duty early morning and Pw.1 had to go only a little later. By about 4.30 a. m. pw. 2 was on his way through the branch road when pw.1 was getting himself ready. The three appellants, in furtherance of their common intention to murder him on account of enmity, way laid him. Accused 1 and 3 were armed with chopper and dagger. At the excitation of the second accused who forcibly bent Pw. 2, accused 1 and 3 inflicted several injuries on pw.2 after announcing their intention and ran away with weapons. This is the prosecution version which was accepted by the Sessions Judge. AH the three were convicted under S.307 and 324 read with S.34 and each of them was sentenced to rigorous imprisonment for 8 and 2 years respectively. 2. Defence version is that scene of occurrence is a little away and the time was a little earlier at 3 a. m. It is said that on account of previous enmity Pws.1 and 2 attacked them with weapons when they were returning home after second show film, resulting in injuries to accused 2 and 3 who were immediately admitted in the Neyyattinkara Govt. Hospital. A case was registered on the information given by the second accused but it was referred as false after investigation. Three minor injuries found on the body of the second accused and one on the third accused are the trump cards to contend that Pws.1 and 2 were the aggressors and the incident took place in a different manner. 3. Pws.1 to 4 are the occurrence witnesses. The incident was not far away from the residence of Pws.1 and 2. Therefore on hearing the cry of Pw. 2, Pw.1 was able to reach the scene. By that time the incident was almost over and Pw.1 could only see pw. 2 with injuries and the accused with weapons. Pw. 2 is the injured and his presence cannot be disputed. Pw. 3 is the driver of a taxi regularly parked in the Neyyattinkara Bus Stand and Pw.4 is its owner-cum-cleaner. By that time the incident was almost over and Pw.1 could only see pw. 2 with injuries and the accused with weapons. Pw. 2 is the injured and his presence cannot be disputed. Pw. 3 is the driver of a taxi regularly parked in the Neyyattinkara Bus Stand and Pw.4 is its owner-cum-cleaner. They were there because they were returning in the taxi after dropping some passenger who came by the Guruvayur Express which reaches Neyyattinkara at 4 AM. Pws. 2 to 4 have given a consistent and uniform version of the incident from beginning to end and it is in tune with the prosecution case in its basic facts. Medical evidence of Pw. 5 and Ext. P2 wound certificate issued by him fully support the ocular evidence. If the prosecution evidence is accepted prior concert and presence and participation inaction of the three accused in furtherance of the common intention of commuting murder and commission of an offence punishable under S.307 are clearly made out. 4. The attempt was to make out that Pws.1 and 2 were the aggressors and the prosecution has not presented a true picture before Court. The injuries found on the bodies of accused 2 and 3 and the failure of the prosecution to offer acceptable explanation for these injuries are the main grounds relied on in this connection. Prosecution is bound to explain the injuries sustained by all concerned only because of its duty to present a true picture to help the court in arriving at the correct conclusion. Such of the injuries as are having a bearing on the guilt or innocence or involved in the course of the transaction and circumstances connected with it alone need be explained by the prosecution. Very minor injuries not having any impact on the crime, even though sustained in the course of the incident, may go unnoticed and non-explanation of such injuries are not relevant. So also, after the incident and unconnected with it the accused could sustain injuries. They could even cause self inflicted injuries in an attempt to escape punishment. The evidence of pws. 3 and 4 is that after the incident when the accused ran away with the weapons they fell down and sustained injuries. So also, after the incident and unconnected with it the accused could sustain injuries. They could even cause self inflicted injuries in an attempt to escape punishment. The evidence of pws. 3 and 4 is that after the incident when the accused ran away with the weapons they fell down and sustained injuries. Pw.5 said that the injuries of accused 2 and 3 could be bad in that way provided in the fall those portions contacted with some sharp objects like broken glass pieces. These injuries could have been sustained in some other manner also. In such a situation as this, the maximum that could be said is that the Court will have to weigh the prosecution evidence and the defence version meticulously to find out whether there is any possibility of the prosecution being guilty of suppression or distortion or the defence version being probable. 5. Prosecution evidence is clinching and it rules out an incident in the manner suggested by the defence. The two grounds relied on to discredit pws. 3 and 4 are that in view of Ext. D 6 case diary contradiction of pw. 3, the presence of these witnesses is not likely and that they are casual witnesses interested in pws.1 and 2 because they stood surety for the brother of pw. 4 in a murder case. In Ext. D1, Pw. 3 said during investigation that be came back from Guruvayur by the bus which reached at 4 AM and then took a passenger in the taxi along with Pw. 4. Now his version is that he did not go to or return from Guruvayoor, but only took a passenger who came in that bus along with Pw. 4, Ext. 06 can equally be a mistake in recording by the police officer. Whatever that be it is immaterial whether pw. 3 had gone to Guruvayoor or not. It is not disputed that pws. 3 and 4 are the driver and cleaner in a taxi regularly parked in the bus-stand. Evidence of pws. 3 and 4 in court and during investigation was uniform and it is that they were returning after dropping a passenger who came in the bus. So also pw. 4 did not adroit that Pws.1 and 2 stood surety for his brother. Pws 1 and 2 were not even asked about it. Evidence of pws. 3 and 4 in court and during investigation was uniform and it is that they were returning after dropping a passenger who came in the bus. So also pw. 4 did not adroit that Pws.1 and 2 stood surety for his brother. Pws 1 and 2 were not even asked about it. A copy of the bail bond could have been produced, but that was also not done. There is nothing to show that Pws.3 and 4 are interested or enemical witnesses. There is absolutely no reason to disbelieve them. 6. The defence that the appellants were attacked at 3 a.m. by Pws.1 and 2 while returning after second show appears to be imaginary. In order to probabilise such a version they claimed themselves to have been admitted in the Government Hospital, Neyyattinkara at 3.30 a. m. But the evidence of pw. 14 and Exts. P9 and P10 wound certificates is that they went to the hospital only at 6 a. m. pw. 2 was also taken to the Parasala Government Hospital at 6 a. m. Considering the probable time required, the prosecution version of the incident alone is probable and it is in accordance with the evidence of Pws.1 to 4. At that time there is no probability of the appellants coming after second show. It was to probabilise their presence for an innocent purpose that time was advanced and second show was brought in. 7. Ext. D4 is the statement given by the second accused while in the hospital. Exts. D4(a) and D4(b) are the body notes. Crime 29/84 was registered by the Neyyattinkara police and it was transferred to Parasala. Both cases were investigated together by Pw.12. Crime 29/84 was found raise and referred. Ext. Dl protest complaint filed by the second accused was dismissed for non-appearance to give sworn statement. It is clear that hospitalisation of accused 2 and 3 and the first information by the second accused were only for creating evidence to defend the case. 8. The counsel for the appellants wanted me to reject the prosecution case for the reason that motive has not been proved. It may not be correct to say that motive is not proved. At the best it could be said that no substantial reason for enmity is established. But enmity is the case of both sides and pw. 2 has spoken to it is also. It may not be correct to say that motive is not proved. At the best it could be said that no substantial reason for enmity is established. But enmity is the case of both sides and pw. 2 has spoken to it is also. Further proof of motive is not essential in all cases. In a case where direct evidence is lacking motive may gain importance in deciding criminality. Crimes could be committed with the simplest or slightest of motive and sometimes even without motive. Motive is not an integral part of the crime just as mens rea. It serves only as an aid in assessing criminality. When there is direct evidence to assess criminality motive gets relegated to the background and becomes irrelevant. In this case there is clinching direct evidence of eye witnesses. The evidence is that while Pw. 2 was going unarmed to report for duty he was brutally attacked with premeditation. In such a case acquittal for want of motive or by doubt on the basis of injuries of the accused will amount to denial of justice. 9. The cross examination of Pws.1 and 2 revealed that their antecedents are not so appreciable. They had occasion to get involved in crimes and there were cases against them. They had occasion to suffer conviction also in some cases. For that reason I cannot agree with the counsel that the evidence will have to be rejected and conviction and sentence interfered with. Even a criminal is entitled to the protection of laws. Bad antecedents of a man is no licence for anybody to meddle with his body, life or liberties. Attack against a criminal or a man of loose morals or bad antecedents is also an offence if the ingredients are established. Criminality will have to be decided on consideration of the relevant materials alone and the judicial mind should not be allowed to be influenced by the antecedents of the victim except in cases where that is a relevant factor to assess criminality or circumstances connected with it. 10. The question of drawing the inferences adverse to the prosecution enumerated in Lakshmi Singh v. State of Bihar (AIR. 1976 SC. 2263) is only when the court feels that the prosecution is guilty of suppression of materials. Here there is no question of any suppression and the defence theory is completely improbabilised and falsified. 10. The question of drawing the inferences adverse to the prosecution enumerated in Lakshmi Singh v. State of Bihar (AIR. 1976 SC. 2263) is only when the court feels that the prosecution is guilty of suppression of materials. Here there is no question of any suppression and the defence theory is completely improbabilised and falsified. Conviction for the offence under S.307 read with S.34 IPC. has only to stand. It was not argued before me that the evidence if accepted will not attract S.34 or will not constitute an offence under S.307. 11. But I cannot sustain the conviction and sentence under S.324 when the appellants were already convicted and sentenced for the offence under S.307. So also after awarding 8 years for the offence under S.307 and 2 years under S.324, the Sessions Judge said "Thus each accused should undergo ten years of rigorous imprisonment concurrently." I fail to understand what the Sessions Judge meant and said. The direction that each accused should undergo rigorous imprisonment for ten years means that judge wanted the two sentences to be undergone consecutively. If it is concurrent each accused need suffer imprisonment only for eight years. I think it is futile for roe to strain my nerves to understand what the Sessions Judge meant. 12. S.71 of the Indian Penal Code says that where an offence is made up of parts, each of which constitutes an offence, the offender should not be punished for more than one offence unless expressly provided. When an offence falls within two or more separate definitions of offences, or when several acts of which one or more than one would, by itself or themselves, constitute an offence, constitute, when combined, a different offence, the offender should not be punished with a more severe punishment than the court which tries him could award for any one of such offences. The section embodies a rule of substantive law regulating the measure of punishment and does not affect the question of conviction, which relates to the province procedure. But the section governs the whole Code and regulates the limit of punishment in cases in which the greater offence is made up of two or more minor offences. S.26 of General Clauses Act also speaks of punishment alone and not of conviction. The section prohibits separate punishments for an offence against the same law and not under different laws. But the section governs the whole Code and regulates the limit of punishment in cases in which the greater offence is made up of two or more minor offences. S.26 of General Clauses Act also speaks of punishment alone and not of conviction. The section prohibits separate punishments for an offence against the same law and not under different laws. S.31 of the Code of Criminal Procedure says that in cases of conviction for several offences at one trial, sentencing shall be subject to S.71 of the Indian Penal Code. S.31 Cr. P. C. may have the effect of enhancing the sentencing powers under S.29 Cr. P.C. but we are not concerned with it here. S.220 Cr. P. C, contains only rules of criminal pleading in regard to joinder of charges and does not deal with the sentence to be passed. Sub-s. (S) makes this abundantly clear. A joint reading of S.71 of the Indian Penal Code and S.220 of the Code of Criminal Procedure shows that Clause (2) of S.71 IPC. approximates S.220(3) Cr. P. C. and Clause (3) corresponds to sub-s. (4) of S.220. Embargo on separate sentence under S.71 IPC. applies only to cases falling within sub-ss. (3) and (4) of S.220 Cr. P. C. and not under sub-s. (1). 13. But when the accused is convicted for a more serious offence, eg. under S.307 IPC. for having done certain acts against a particular individual with the requisite intention or knowledge, he cannot again be convicted and sentenced for having done some of those acts against that individual which constitute an offence under S.324 IPC. Here common intention was murder. The target of attack was Pw. 2 alone. Exhortations and announcements were only to murder him and all the injuries were inflicted on him alone with that intention and knowledge and under such circumstances that if death resulted they would have been guilty of murder. All the individual acts of each member were those forming part of the offence under S.307. In such a case if the offence under S.307 was found against, conviction and sentence for an offence under S.324 may be justified if it is taken as established. That is permissible even in the absence of a charge under S.324 because of S.222 Cr. In such a case if the offence under S.307 was found against, conviction and sentence for an offence under S.324 may be justified if it is taken as established. That is permissible even in the absence of a charge under S.324 because of S.222 Cr. P. C. But conviction and sentence in such a situation for offences under S.307 and 324 together will be double conviction and sentencing for the same acts committed against the same person. In this case for having inflicted the injuries on Pw. 2 all the three accused were convicted and sentenced under S.30? with the aid of S.34. For those acts or some of them which also constitute the particulars of the minor offence of S.324, separate conviction and sentencing cannot be had. In this case conviction under S.307 includes conviction for the particulars of the same acts constituting an offence under S.324 also. If it was assault against another person the position would have been different. When a person is convicted and sentenced for murder, he cannot again be convicted or sentenced for offences under S.326, 324 or 307 for inflicting the individual injuries on the victim because they are covered by the conviction and sentence for murder which is the major offence which includes the particulars of each minor offence and something more. The Sessions Judge therefore acted illegally in entering separate convictions and sentences under Ss 307 and 324. The illegality became greater when the sentences were provided to be suffered consecutively. in this case conviction for S.307 includes offences under S.324 also and S.71 IPC prohibits separate punishment for S.324. 14. For the offence under S.307 also a little more of leniency may not be out of place. Even taking into account the gravity of the offence and the circumstances leading to its commission, I think that ends of justice will be sufficiently met by rigorous imprisonment for 5 years to each. While confirming the conviction against all the three under S.307 read with S.34 as against all the appellants, the appeal is partly allowed as under. For the offence under S.307 the sentence against each appellant is reduced to rigorous imprisonment for five years. The conviction and sentence as against each appellant under S.324 is cancelled and they are acquitted of that charge.