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2004 DIGILAW 441 (KER)

Shahul Hameed v. Kerala State

2004-09-15

K.A.ABDUL GAFOOR

body2004
Judgment :- Altogether 10 accused were charged for offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the Indian Penal Code for having committed the offence of attempt to murder and causing grievous hurt on PW.2 Accused 4 and 6 absconded. Therefore, only the rest of the accused faced the trial. All those faced trial had been convicted for the offences punishable under Sections 143, 147, 148, 324, and 327 IPC and had been sentenced to undergo imprisonment for various terms ranging from one from to 10 Years. Therefore, this appeal by the convicted accused. 2. It is submitted by the appellants that there was absolutely no evidence on record to be acted upon to fasten guilt on the accused. Though the case of the prosecution was that all the accused did have weapon in their hands, even going by the version of PW.9 the investigating officer, three weapons M.Os.1 and 2 and an iron rod, alone were recovered as per Ext.P3. Out of those three weapons, the iron rod had never been produced in court. So, the recovery itself is doubtful. It is submitted that the recovery is, admittedly by the prosecution, based on the disclosure statement Ext.P3(a) given by the second accused. But, second accused had used only M.O.1 chopper. Therefore, the recovery of M.Os. 1 and 2 choppers and the alleged recovery of iron rod cannot be an incriminating circumstance against accused 1, 3 or anyone else. In the absence of recovery, there is no cogent evidence to fasten guilt. There are divergent versions as to the infliction of the injury by the first accused, when PWs.1, 2 and 5 deposed before the court below. According to PW.1 – the occurrence witness, the first accused inflicted a cut injury on PW.2; whereas PW.2 says that he had only beaten him. The weapon is also not mentioned. So the overt act from the hands of the first accused is not proved. The third accused is said to have used the iron rod. It has never been recovered nor produced before the court. So there was no incriminating circumstance against the third accused. The prosecution also did not have explanation with regard to the non-recovery or non-production of the iron rod said to be used by the third accused. The third accused is said to have used the iron rod. It has never been recovered nor produced before the court. So there was no incriminating circumstance against the third accused. The prosecution also did not have explanation with regard to the non-recovery or non-production of the iron rod said to be used by the third accused. Even admittedly by PWs.1, 2 and 5, only four persons, accused 1 to 4 came first. The others came later. Necessarily, the common object cannot be found against all of them to commit the offence, unless a prior meeting of mind is proved. So, in this case, there arises no question of any situation to fasten guilt on accused 5 to 10, as no overt act from their part has been spoken to either by PW.1 or the injured PW.2. Only PW.5 had spoken about accused 5 and 6, though not definitely. So, there is absolutely no reason to convict accused 5 to 10, the appellants submit. PW4 doctor had stated that the injury could have been fatal, if not properly attended to in time. So this is not a case coming within the fold of Section 307 IPC. 3. It is submitted by the Public Prosecutor that the overt act on the part of accused 1, 2, 3 and 4 had been clearly spoken to by both PWs.1 and 2, the injured. The 4th accused did not face the trial. Even if the 4th accused is excluded for the time being, the overt act in respect of others, viz., accused 1 to 3 had been spoken to by both PWs.1 and 2. They have also spoken to about accused 5 to 10 coming to the scene of occurrence, after the 3rd accused uttered: {finish him}. Therefore, a common intention to commit the offence is revealed. When a common object is revealed, all the accused are liable to be convicted, the Public Prosecutor submits. It is submitted that the recovery is so material and incriminating only in the absence of any direct evidence to the commission of offence. In other words, if there is cogent and trustworthy evidence of the occurrence witnesses regarding the commission of offence and use of the weapons, the offence of recovery cannot affect the prosecution. Altogether, there were 9 injuries on the injured, two of them were bleeding. There were fractures as well. In other words, if there is cogent and trustworthy evidence of the occurrence witnesses regarding the commission of offence and use of the weapons, the offence of recovery cannot affect the prosecution. Altogether, there were 9 injuries on the injured, two of them were bleeding. There were fractures as well. In such circumstances, it was a clear case of attempt to murder. So, there is no reason to interfere with the conviction or sentence, submits the public prosecutor. 4. PW.1 is the first informant. He gave Ext.P1 First Information Statement to PW.9, the sub Inspector, who registered Exts. P1(a) FIR. According to PW.9, when he went to the hospital, on getting information about the commission of the offence, PW.2 was not in a position to give statement, being unconscious. Therefore, he obtained a statement from PW.1. According PW.1, himself and PW.5 were going along with PW.2 to their house. At hat time, there was an attack somewhere near the CRPF camp. PW.1 had spoken to that accused 1 to 4 came first. There was attack from accused 2 and 3. Others came there from a different direction. The first four persons had torches in their hands. In the torch light from different source, he identified the accused persons. According to him, the first accused had inflicted a cut injury. The third accused had beaten PW.2 with an iron rod on his head. The overt acts by these three accused alone are stated by PW.1 (I am not considering the overt act spoken to against he 4th accused, who is yet to face trial.) PW.2 reveals that the first accused had beaten him. Even the weapon is not mentioned. There is divergent views with reference to the overt act of the first accused. So, it cannot be taken that there is conclusive proof as to the real overt act by the first accused. Anyhow, PW.2 is certain that the first accused had not inflicted a cut injury on him. So the involvement of the first accused is doubtful. 5. PW.1 says that the second accused had inflicted a cut injury on PW.2. PW.2 fully corroborates this version. Equally so is the version of PW.5. Thus the overt act from the hands of the second accused is conclusively proved that he had inflicted a cut injury with M.O.1. on PW.2. 6. 5. PW.1 says that the second accused had inflicted a cut injury on PW.2. PW.2 fully corroborates this version. Equally so is the version of PW.5. Thus the overt act from the hands of the second accused is conclusively proved that he had inflicted a cut injury with M.O.1. on PW.2. 6. Both PWs.1 and 2 are unanimous that the third accused had used an iron rod and had beaten PW.2. According to PW.1, the third accused had beaten on the head of PW.2, whereas PW.2 says that he had beaten on his leg. Ext.P2 wound certificate issued by PW.4, the doctor who attended PW.2, does not disclose any injury on the head of PW.2. But at the same time, there were fractures on the leg. The occurrence was at about 7 P.M. on 25.10.1992. In such circumstances, when PW.1, had watched the incident in which several persons were involved, he may not be able to accurately say where the beating by the third accused had fallen. He can, at the best, say that the third accused had beaten PW.2. But PW2, who had suffered beating from the third accused, can very easily say where he had beaten. He had stated that he had beaten on his legs. Bleeding on the leg had been certified by PW.4 in Ext.P2 wound certificate. Both of them say that the third accused had used an iron rod. In such circumstances, PW.2 shall have to be believed, coupled with the evidence of PW.1 that the third accused had used an iron rod to beat PW2. The overt act on his part is thus proved. 7. No overt act had been spoken to by PW.1 or PW.2 in respect of accused 5 to 10. Of course, PW.5 says about an overt act of the 5th accused. But, it is not conclusive. When PW.2, the injured, had not spoken to any such overt act, the evidence of PW.5, with regard to the overt act of the 5th accused, cannot have any weight. 8. Even according to all the three witnesses, PWs.1, 2 and 5, only accused 1 to 4 came first. Thereafter, others came, when accused 2 and 3 had made the exhortation. 8. Even according to all the three witnesses, PWs.1, 2 and 5, only accused 1 to 4 came first. Thereafter, others came, when accused 2 and 3 had made the exhortation. In the absence of any overt act on their part, as the two groups of persons came at different points of time, it cannot be stated that there was a common object or unlawful assembly by all of them. Therefore, there is no reason to bring accused 5 onwards within the fold of any of the offences, as the unlawful assembly and common object are not proved. This conclusion shall, necessarily, result in setting aside the conviction for the offences punishable under Sections 143, 147 and 148 IPC. When there is no common object, necessarily, the conviction on other counts on accused 5 and 7 shall also have to be set aside. I do so. 9. I have already found that there is no consistent version with reference to the overt act of the first accused. There is no conclusive evidence with reference to the weapon used by the first accused. In such circumstances. I am of the view that his conviction, on any count, under Sections 323, 326 and 307 cannot be sustained. Accordingly, he cannot be found guilty of any of the offences. The sentence passed on him is vacated. 10. As regards accused 2 and 3, I have already found that the overt acts on their part have been conclusively proved by reason of the evidence of PW.1 and 2. At this juncture, the contention of the counsel for accused 2 and 3 that, if at all any offence is revealed, it will not come within the fold of Section 307, has to be considered. The counsel submits that none of the injuries had been fatal by itself, as is spoken to by PW.4. The injury would have become fatal, due to bleeding, if not properly attended to in time. 11. Inviting my attention to the decisions in Jai Narain v. State Of Bihar {AIR 1972 SC 1764} and Pashora Singh v. State of Punjab {AIR 1993 SC 1256}. It is submitted that when the injuries were not fatal even in the case of a head injury, the Supreme Court has found that of offence under Section 307 cannot be made out. It is submitted that when the injuries were not fatal even in the case of a head injury, the Supreme Court has found that of offence under Section 307 cannot be made out. In the first among the two cases, there were four injuries out of which, three were only minor and the only one serious injury was on the chest with muscle deep. In the second case, there were four injuries, three among them being on the scalp. It was based on the fact situation in those cases that the Supreme Court came to the conclusion therein. 12. In this case, there were altogether 9 injuries, including fractures and the weapons used were also very deadly ones. Accused are alleged to have come together for an attack. In such circumstances, the nature of the injuries alone shall not be sufficient to consider whether an offence under Section 307 IPC had been committed. If accused had knowledge that their act would have caused death, to attract conviction under Section 302 IPC, if it really caused death, necessarily, Section 307 IPC is attracted. Taking into account the weapon used and the involvement of accused 2 and 3 (the case of the 4th accused, who did not face trial, is not considered), I feel that this is a case falling under Section 324 and 326, as very serious hurt had been disclosed by PW.4 in Ext.P2. 13. The contention of the counsel for accused 2 and 3, that the alleged weapon viz., iron rod used by the third accused has not seen the day light, has also to be considered. Going by Ext.P3 recovery mahazar, three weapons had been recovered, M.Os.1, 2 and an iron rod. The counsel concedes before me that iron rod had been sent to the Central Forensic Science Laboratory. In such circumstances, the prosecution need not explain about the non-recovery of the said weapon, as it had already been recovered. It is true that the recovery was as disclosed by the second accused, who is none other then the brother of the third accused. Necessarily, it is possible that the second accused had concealed it or the second accused had knowledge about the place where the third accused had concealed that weapon. It is in that circumstance, the recovery has been effected based on the disclosure by the second accused. Necessarily, it is possible that the second accused had concealed it or the second accused had knowledge about the place where the third accused had concealed that weapon. It is in that circumstance, the recovery has been effected based on the disclosure by the second accused. Even in the absence of identification of the iron rod, there is no reason to disbelieve the evidence of PWs.1, 2 and 5, with reference to the overt act of the third accused. The decision reported in Pohalya v. State of Maharashtra (AIR 1979 SC 1949) does not have application in this case. That was a case solely depending upon the circumstantial evidence and the only incriminating evidence was the alleged recovery. The recovery was from one accused alone. In such circumstances, it could not have been taken as an incriminating circumstance against the other accused, in the absence of direct evidence. 14. In this case, direct evidence is available, as mentioned above, from the mouth of PWs.1, 2 and 5 with respect to the overt act of the third accused that he had used an iron rod to beat PW.2. 15. The next aspect to be considered is regarding the sentence. The court below had imposed imprisonment for a period of 10 years for the offence punishable under Section 307 IPC and a term of 5 years for the offence under Section 326 IPC. PW.2 had been in the hospital for about 15 days. He did not suffer any disability on account of the injury sustained. Nothing of that sort had been noted by the court below. In such circumstances, I am of the view that rigorous imprisonment for a term of two years for the offence punishable under Section 326 and another term of rigorous imprisonment for three years for the offence punishable under Section 307 shall be sufficient sentence, to meet the ends of justice. The sentence passed under Section 324 shall remain as such. The sentences shall run concurrently. The appeal is, thus, partly allowed and the order shall be as follows: (a) Accused 1, 5, and 7 to 10 are acquitted of all the offences. The sentence passed on them is vacated. (b) Accused 2 and 3 are acquitted of the offences punishable under Sections 143, 147 and 148 IPC. The sentences shall run concurrently. The appeal is, thus, partly allowed and the order shall be as follows: (a) Accused 1, 5, and 7 to 10 are acquitted of all the offences. The sentence passed on them is vacated. (b) Accused 2 and 3 are acquitted of the offences punishable under Sections 143, 147 and 148 IPC. (c) The conviction of accused 2 and 3 for the offences punishable under Sections 324, 326 and 307 is confirmed. (d) The sentence passed on accused 2 and 3 for the offences punishable under Sections 326 and 307 IPC is modified as rigorous imprisonment for a term of two years and three years respectively, instead of 5 years and 10 years passed by the court below. (e) The imposition of fine for the offence found against accused 2 and 3 shall remain as such with the default sentence, as already ordered by the court below. (f) The substantive sentences shall run concurrently. (g) Set off will be available wherever applicable.