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2017 DIGILAW 1266 (KER)

Madhu v. State of Kerala

2017-10-06

A.M.SHAFFIQUE, P.SOMARAJAN

body2017
JUDGMENT : Somarajan, J. 1. These are the two appeals preferred against the conviction and sentence imposed by judgment dated 12.12.2012 in S.C.No.842 of 2007 of the Additional Sessions Judge (Adhoc II), Kasaragod. Crl.A.No.533 of 2013 is preferred by accused No.2 and Crl.A.No.506 of 2015 by accused No.1. They were charged under Sections 341 and 302 read with Section 34 of the Indian Penal Code. 2. The prosecution case is that the accused persons, in search of a job, came to Kasaragod District from the southern district of Kerala about one month prior to the alleged incident. On 30.8.2002 at about 8 p.m., accused No.1 came to the house of PW8 one Janaki while she was alone in that house and sat on the front veranda of the house. On seeing this, the deceased Babu and one Viswanathan interfered and asked him to leave the place. In order to wreak vengeance, on the next day by 7 p.m., accused Nos.1 and 2 restrained the deceased Babu and beat on his head with a wooden stick. On hearing the screaming, PW1 and PW2 rushed to the place and removed the injured to the Government Hospital, Kasaragod and then to Mangalore Hospital and while undergoing treatment, he succumbed to the injuries at 00.20 hours on 2.9.2002. PW1 thereon went to the Manjeswaram Police Station and gave Ext.P1 FIS, based on which, PW15, S.I. of Police, Manjeswaram, registered Ext.P1(a) FIR. After the completion of investigation, final report was submitted and accused Nos.1 and 2 were charge sheeted for the offence punishable under Sections 341 and 302 read with Section 34 IPC. 3. The learned Sessions Judge found both the accused guilty of the offence punishable under Section 302 read with Section 34 IPC and Section 341 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- with a default sentence of two years each for the offence punishable under Section 302 IPC. The accused were also sentenced to undergo simple imprisonment for one month each for the offence under Section 341 IPC, with a direction to pay the fine amount to PW6, wife of the deceased, as compensation by its judgment dated 12.12.2012. 4. The prosecution has examined PW1 to PW17, marked Exts.P1 to P14 and identified MO1 wooden stick. There are two occurrence witnesses examined as PW1 and PW2. 4. The prosecution has examined PW1 to PW17, marked Exts.P1 to P14 and identified MO1 wooden stick. There are two occurrence witnesses examined as PW1 and PW2. They identified the weapon used for inflicting the injury as MO1. PW3 and PW4 turned hostile. PW6 is the wife of the deceased. PW8 is Janaki who was examined to prove the motive behind the crime. PW9 is the witness to Ext.P3 scene mahazar. 5. PW1, one of the occurrence witnesses, who gave Ext.P1 FIS, was subjected to a lengthy cross examination and nothing was brought out to discredit his oral evidence. On the other hand, he had given vivid picture of what actually happened at the place of occurrence. According to him, he had seen the alleged incident and he came to the place of occurrence on hearing the screaming by about 7.30 p.m. from his house and he had seen accused Nos.1 and 2 along with the deceased. Accused No.2 Madhu caught hold of the deceased Babu and accused No.1 beat on his head with a wooden stick. Thereon, the deceased fell on the ground. CW4 Suresh and CW3 Gopalakrishnan Nair also came to the place of occurrence. Accused Nos.1 and 2, on seeing this, ran away from the place of occurrence. The injured was immediately removed to the Government Hospital, Kasaragod by hiring a jeep. He was referred to the Mangalapuram Hospital and accordingly, he was taken to that hospital and he succumbed to the injuries on the next day. PW1 has also witnessed the inquest conducted on the body of the deceased and Ext.P2 is the inquest report. He had also identified MO1 wooden stick used for inflicting injury to the deceased and witnessed preparation of Ext.P3 mahazar. He had undergone a very lengthy cross examination. Nothing was brought out to discredit his oral testimony and no contradiction or material omission was brought out. Even no suggestion was put up to show any ill-will or hatredness or enmity and no specific incident of enmity was either raised or suggested during his cross examination. PW1 was found to be trustworthy in all respects. Nothing was brought out to discredit his oral testimony and no contradiction or material omission was brought out. Even no suggestion was put up to show any ill-will or hatredness or enmity and no specific incident of enmity was either raised or suggested during his cross examination. PW1 was found to be trustworthy in all respects. The only discrepancy pointed out by the defence is that, according to PW1, the incident was happened by 7.30 p.m., but actually the incident happened by 7 p.m. Going by the oral evidence tendered by PW1, it can be seen that what was deposed is only an approximate time. Further, it is only a minor discrepancy not touching on any material aspect of the alleged incident. 6. The oral evidence tendered by PW1 stood as supported and corroborated by the oral evidence of PW2, another occurrence witness, who is in agreement with PW1 in all respects. He had also undergone a lengthy cross examination and no contradiction or material omission was brought out. On the other hand, both PW1 and PW2 are found to be sterling witnesses and trustworthy in character, as there was not even a suggestion of any enmity, hatredness or ill-will suggesting any specific incident. Their presence in the place of occurrence is probable and acceptable. 7. The medical evidence tendered also supports the oral testimony of PW1 and PW2 in all respects. PW12, the Doctor who conducted the postmortem examination on the body of the deceased had noted seven anti-mortem injuries. The cause of death is stated as due to the head injury. Further, it was stated by the doctor that injury noted by him can be caused by MO1 wooden stick. The suggestion put up by the accused during cross examination, that the injuries are possible by a fall on a hard surface, is not sufficient to reject the oral testimony tendered by both the occurrence witnesses PW1 and PW2, who are fully in agreement with what actually happened there and what they had seen on the ill-fated day. The possibility of causing injury Nos.1 to 7, noted as anti-mortem injuries in Ext.P5, by using MO1 wooden stick would give sufficient corroboration to the oral testimony of PW1 and PW2 and no material inconsistencies much less any inconsistency between the ocular version given by PW1 and PW2 and the medical evidence are brought to our notice. 8. The possibility of causing injury Nos.1 to 7, noted as anti-mortem injuries in Ext.P5, by using MO1 wooden stick would give sufficient corroboration to the oral testimony of PW1 and PW2 and no material inconsistencies much less any inconsistency between the ocular version given by PW1 and PW2 and the medical evidence are brought to our notice. 8. PW8 was examined for the purpose of proving the motive behind the crime. She explained what actually happened on the previous day in her house and the visit of accused No.1 to her house and the interference of the deceased. This would sufficiently show the motive behind the crime. The mental condition or mens rea of the accused persons at the time of commission of the offence may not be known to the prosecution invariably in all cases and it would be safe when a strained relationship or hatredness was brought out from the attending circumstances. 9. Both PW1 and PW2 are in agreement that there was a single blow by accused No.1 by using MO1 to the head of the deceased. The injuries noted in Ext.P5 postmortem examination report would sufficiently show the gravity of the injuries sustained which are the following: “1. Abrasion on the right eyebrow ½ x ½ cm. 2. Abrasion on occipital area, 1 inch ½ cm 3. Abrasion on left knee ¼ x ¼ cm. 4. Hematoma below the skull over the occipital area 3 x 2 inch. 5. Linear fracture over occipital area extended to the parital temporal area. 6. Blood clots measuring about 500 cc over parital area over membranes. 7. Blood clots below the dura over the left Cerebral Hemisphere and brain on left side is contused.” 10. The extensive nature of the injuries would, prima facie, show the force applied by the accused while beating with MO1 stick on the head of the injured causing hematoma below the skull over the occipital area and the linear fracture over occipital area extended to the parital temporal area. The extensive nature of the injuries would, prima facie, show the force applied by the accused while beating with MO1 stick on the head of the injured causing hematoma below the skull over the occipital area and the linear fracture over occipital area extended to the parital temporal area. The nature of the weapon used and the gravity of the injuries sustained, the nature of the force applied and the place wherein the injuries were caused would sufficiently show both the intention and the knowledge of attributing to cause death and hence it would come under the purview of both the first and second limbs of Section 300 IPC and hence there cannot be any interference to the finding of guilt of accused No.1 under Section 302 IPC and the conviction thereunder. 11. The allegation against accused No.2 is that he caught hold of the victim so as to facilitate the attack on the victim by accused No.1 by using MO1 wooden stick. But the same would not be sufficient to draw an inference regarding the common intention to commit the murder of the victim. No evidence was brought out by the prosecution regarding any pre-meditation or prior conspiracy. On the other hand, the act of accused No.2 and his alleged involvement would not lead to an inference that he had a common intention to do away the deceased. In order to attract Section 34 IPC, there should be a common prior concert, which would be capable of even developing on the spur of the moment or at the scene of the crime. What is important is the meeting of minds of the coaccused that the particular criminal act should be committed. Section 34 of IPC essentially resting on the principle of joint liability in doing a criminal act and the essence of the liability is to be found in the existence of a common intention animating the accused to do a criminal act in furtherance of such intention. The criteria is the existence of a common intention and the act done in furtherance of such common intention. The acts may be different in character but must have been actuated by one and the same common intention in order to attract the provision. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character but must have been actuated by one and the same common intention in order to attract the provision. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identically similar. The true purport of Section 34 is to extend the liability of the acts done in furtherance of a common intention even in the absence of proof as to what exactly done by each of the accused. The principle of constructive liability under Section 34 thus, in the absence of common intention, cannot be extended. Though Section 34 was incorporated in IPC, the Section really deals with and operate as a rule of evidence and does not create a substantive offence by itself. The principle of vicarious liability enshrined by Section 34 IPC extends only to the extent of common intention shared by the parties and as such an apportionment of liability based on the sharing of the common intention to the extent possible is permissible. In the absence of common intention the parties are liable only in respect of the act done by them and the consequences thereof. In other words, the extent of liability is also an issue to be adjudicated based on the sharing of common intention to do a particular act. An act done by one of the accused exceeding the common intention shared by them cannot be brought under Section 34 of IPC. The apportionment of liability amongst the co-accused would be permissible with the aid of Section 34 IPC and the liability of an accused under Section 34, therefore, is a matter of inference to be drawn from the facts and circumstances of each case. 12. The object of the Section was laid down by the Apex Court in Girija Shankar Vs. State of U.P., AIR 2004 SC 1808 in reference to the earlier decision on the point in Bharwad Mepa Dana and another Vs. The State of Bombay, AIR 1960 SC 289 . The Apex Court in Lallan Rai and others Vs. State of Bihar, (2003) 1 SCC 268 : AIR 2003 SC 333 , relying upon the dictum laid down by the Privy Council in Barendra Kumar Ghosh Vs. King Emperor, AIR 1925 PC 1 and the Supreme Court in Mohan Singh Vs. The State of Bombay, AIR 1960 SC 289 . The Apex Court in Lallan Rai and others Vs. State of Bihar, (2003) 1 SCC 268 : AIR 2003 SC 333 , relying upon the dictum laid down by the Privy Council in Barendra Kumar Ghosh Vs. King Emperor, AIR 1925 PC 1 and the Supreme Court in Mohan Singh Vs. State of Punjab, AIR 1963 SC 174 , held that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to achieve a particular result. More emphasis should be given to the expression “simultaneous consensus of the mind of persons to achieve a particular result” while deciding the apportionment of liability amongst the co-accused. The intention of the party may be inferred from the surrounding circumstances on the conduct of the parties and some time it may not be possible to adduce direct evidence regarding the intention of each party or their common intention in reference to the object to be achieved or to achieve a particular result. There may be a common intention amongst the co-accused and they may be acting in furtherance of their common intention by all or some of them. The principle is that the liability for the crime may be imposed on any of the persons in the same manner as if the acts were done by him alone. But the liability can be apportioned amongst the co-accused and would be permissible with the aid of Section 34 IPC. 13. The Apex Court in Kashmira Singh Vs. State of Punjab, AIR 1994 SC 1651 : 1994 CrLJ 1974 had exercised the jurisdiction to apportion the liability under Section 34 IPC. It is a case wherein the accused along with the co-accused caught hold of the deceased and another accused after taking out knife from his pocket inflicted single injury on the deceased and the fact that the accused who inflicted the stab injury was carrying knife was not known to the other two accused, but the High Court convicted them under Section 302 read with Section 34 IPC. The Supreme Court, reversing the order of the High Court, held that stabbing cannot be said to be a conjoint act so as to attract the element of common intention on the part of the other two accused. 14. The Supreme Court, reversing the order of the High Court, held that stabbing cannot be said to be a conjoint act so as to attract the element of common intention on the part of the other two accused. 14. The very same principle was again applied in Kuldip Singh and another Vs. State of Punjab, 1994 CrLJ 2201 , wherein three accused were tried under Section 307 read with Section 34 IPC, but convicted only one under Section 307 and the other two accused under different sections because all the three had given different kind of blows on the victim. 15. In the instant case, the role of accused No.2 was that he had caught hold of the victim so as to facilitate the attack on the deceased by accused No.1. The weapon used for the attack is a wooden stick and there is only a single blow on the head of the victim by accused No.1. The fact that accused No.1 beat on the head of the victim and caused very serious injuries sufficient to cause death by itself will not bring accused No.2 with the liability to answer the offence under Section 302 IPC, as there is no evidence to show that it was known to him that accused No.1 is going to inflict an injury on the head of the victim. It could be possible for accused No.1 to beat on the deceased by using MO1 stick either on his shoulder or forelimb or lower limb or any other non-vital part of the body. Unless there is evidence to show prior concert to do away the deceased by inflicting injury on any vital part of the body like head, it is not possible to fasten the liability under Section 302 against accused No.2, who facilitated the offence by catching hold of the victim and that itself would not show or satisfy the prior concert to do away the deceased or to inflict injury that would result in his death. In the said circumstances, the liability which can be fastened as against accused No.2 is only under Section 304 Part II IPC and hence the finding of guilt of accused No.2 under Section 302 and the conviction thereunder is liable to be interfered with and we do so. Accused No.2 is found guilty for the offence punishable under Section 304 Part II IPC and is convicted thereunder. Accused No.2 is found guilty for the offence punishable under Section 304 Part II IPC and is convicted thereunder. Since there is a wrongful restraining of the victim by accused No.2, both the accused are liable for the same by the operation of Section 341 IPC and hence there is no reason for any interference to the finding of guilt of accused Nos.1 and 2 for the offence under Section 341 IPC with the aid of Section 34 IPC. 16. The sentence awarded to accused No.1 is the lesser punishment for the offence under Section 302 IPC and hence it deserves no interference by this Court. Further the sentence awarded for the offence under Section 341 IPC also deserves no interference by this Court. The finding of guilt on accused No.2 and the conviction for the offence under Section 302 IPC and sentence imposed are hereby set aside. In the result, Crl.A.No.533 of 2013 is allowed in part. The finding of guilt of accused No.2 for the offence punishable under Section 302 IPC and the conviction and sentence imposed thereunder are hereby set aside. Accused No.2 is found guilty of offence punishable under Section 304 Part II and Section 341 IPC and sentenced to the period of detention already undergone by accused No.2 by granting set off for the offence under Section 304 Part II IPC. No separate sentence is ordered in view of the detention already undergone for the offence under Section 341 IPC. Crl.A.No.506 of 2015 is hereby dismissed confirming the finding of guilt of accused No.1 under Section 302 IPC and his conviction and sentence thereunder. Accused No.2 shall be released forthwith by the concerned jail authorities, if he is still in jail and his detention is not required in connection with any other case.