A fatal stabbing raised questions of eyewitness credibility, weapon recovery and common intention. The court upheld the principal accused's murder conviction and the other accused's hurt convictions, declining to impose joint liability for murder. All appeals were dismissed and the sentences left undisturbed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY,THE 18TH DAY OF SEPTEMBER 2018/27TH BHADRA, 1940
CRL.A.No. 1477 of 2012
AGAINST THE JUDGMENT DATED 07-12-2012 IN SC.NO.92/2009 of THE COURT OF THE ADDL.SESSIONS JUDGE (ADHOC)III, MANJERI
APPELLANT/ACCUSED NO.1:
KUNHIMUHAMMED @ KUNHEETHU S/O. SAIDALI HAJI, ICHANIKKATTU KALATHIL HOSUE, PATHIAKKARA AMSOM ERAVIMANGALAM DESOM.
BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
ADDL.DGP SRI.SURESH BABU THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH CRL.A.1481/2012 AND CRA(V).359/2013, THE COURT ON 18.9.2018 DELIVERED THE FOLLOWING:
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C.R.
JUDGMENT
Somarajan, J.
Against the judgment of conviction and order of sentence, dated 7.12.2012, in S.C.No.92 of 2009 on the file of the Court of Additional Sessions Judge (Adhoc) III, Manjeri, accused No.1 came up in Crl.A.No.1477 of 2012, accused Nos.2 and 3 came up in Crl.A.No.1481 of 2012 and the wife of the deceased came up in Crl.A. (V) No.359 of 2013.
with sad death in an incident happened by 8.45 p.m. on 11.4.2006 by which he had sustained several stab injuries from the hands of accused No.1. Accused Nos.2 and 3 facilitated the commission of offence by beating on PW1 with sticks. Though the deceased was removed to hospital, he was declared dead, on arrival. On the previous day, i.e. on 10.4.2006, in connection with painting of election symbol at Kunnappalli in Pathaikkara Village near to library, there was some
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altercation and scuffle between the sympathizers of United Democratic Front and Left Democratic Front. The immediate provocation for the alleged incident is stated to be the incident that happened on the previous day.
witness who had sustained injury in the very same incident. The incident happened on 11.4.2006 at about 8.45 p.m. near Puthuvathur parambu road junction. PW1 was actually waiting on the road side of Puthuvathur parambu road junction. At that time the deceased Subrahmannian came there in a bus by carrying a black plastic bag. While they were proceeding through Mukkilaplavu Junction, accused Nos.1 to 3 appeared with wooden sticks and unleashed attack on both the deceased and PW1. Accused No.1 beat on the left shoulder of the deceased with a tamarind stick. Accused No.2 beat on PW1 with a wooden stick. When the deceased and PW1 tried to escape, accused No.3 beat PW1. It is at that time, accused No.1 took a knife from his loin and inflicted a stab injury on the back of the deceased. PW1 intervened when accused No.1 again attempted to stab on the
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deceased. Thereon accused No.1 turned against PW1 and inflicted a stab injury on his left buttock. Accused No.2 hit on the right leg of PW1 by which he sustained a fracture on his leg and fell down. Accused No.3 also joined and beat him with a wooden stick. By that time, accused No.1 inflicted several injuries on the chest of the deceased. He had identified all the accused persons in the box. He is the person who had given Ext.P1 FIS. He had identified MO1 knife used by accused No.1, three sticks used by the accused persons which were identified as MO2 series. A chappel (left leg) of PW1 was identified as MO3 and another chappel (right leg) belonging to the deceased was identified as MO4. The oral evidence tendered by PW1, the injured witness, was challenged mainly on the reason that in the FIS there is only mentioning of one stab injury on the deceased and that the further version given at the time of his examination regarding the cause of other stab injuries can only be an embellishment and cannot be relied on. The decisions drawn in State of Maharashtra v. Ahmed Shaikh Babajan and Others [(2009)14 SCC 267] and Maqsoodan and Others v. State of U.P. [1983 KHC 421] were brought to the notice of this court. It is true that when there is
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disclosure of names of culprits known to the first informant, who had witnessed the alleged incident, it would be so vital for the effective and meaningful investigation. Necessarily, the non mentioning of names by the first informant eye witness with respect to the culprits known to him is relevant in judging the veracity of the prosecution case, though the First Information Report does not itself constitute a substantive evidence. In the instant case, the first informant had disclosed the names of all accused persons and their specific overt act, but disclosed only one stab injury by the accused No.1 on the deceased. The omission to state about the number of stab injuries sustained by the victim has to be appreciated in the light of circumstance prevailed at that time. At the time when the first informant, PW1, had given FIS, he had already sustained a stab injury and was undergoing treatment. The FIS is so specific with respect to the attack on the deceased by accused No.1 with the knife and the attack by the other accused towards PW1. So, the omission to mention about the number of stab injuries inflicted on the deceased by accused No.1 in the FIS is quite probable and not fatal to the prosecution. It is not at all necessary that the FIR should be the full
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text of the alleged incident. It should be understood with reference to the background under which it was given, also the mental condition of the first informant besides his relationship with the victim. The mental condition of the first informant at the time when the statement was given is a relevant aspect to be considered while testing the probative value of the FIR and omissions, if any. (See Madhusoodan and others v. State of U.P. (AIR 1983 SC 126= 1983 KHC 421 ). The contradictions which were marked as Exts.D1, D1(a) and D1(b) are not on the basis of the first statement given by PW1, the FIS. The very nature of Ext.D1, D1(a) and D1(b) being portion of the statement recorded under Section 161 Cr.P.C. by the CI of Police (Investigating Officer) subsequent to the FIS itself casts a doubt on the circumstance under which the same was recorded. Exts.D1, D1(a) and D1(b) suggest a case deviating from FIS given at the earliest opportunity to the extent that the deceased and PW1 snatched the wooden stick from accused Nos.1 and 2 and retaliated and it is at that time accused No.1 took the knife from his loin and inflicted stab injuries on the deceased. No such case was advanced by PW1 in the FIS, the statement given at the first opportunity, or any of the witnesses examined by the
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prosecution. Ext.D1, D1(a) and D1(b) were marked as part of the subsequent statement alleged to have been given by PW1 under S.161 Cr.P.C. A second statement taken from PW1, the first informant, that too advancing an inconsistent version subsequent to the first information casts a doubt as to what actually prompted the investigating officer to record such a subsequent statement especially in a case of this nature alleged to have been committed due to political enmity. PW1 in the box had totally denied Exts.D1, D1(a) and D1(b) contradictions being portions of a second statement recorded under S.161 Cr.P.C. by the CI of Police subsequent to the earlier version in the FIS given by the very same witness. On the other hand, he had sticked on to the FIS given, rejecting Exts.D1, D1(a) and D1(b). In fact, Exts.D1, D1(a) and D1(b) being parts of a second statement recorded under S.161 Cr.P.C., quite contrary and inconsistent with the earlier version in the FIS, cannot be used to discard the oral evidence of PW1 or the genuineness of the FIS given by him except for contradicting the second statement recorded under Section 161 Cr.P.C. The inconsistency sought to be incorporated under the guise of a second statement recorded under Section 161 Cr.P.C., thus defeated by
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the same witness in the box, otherwise it would definitely operate against the probative value of both the First Information Report and the FIR registered consequent to it. The very fact that he was also an injured in the incident and had undergone treatment in connection with the injury sustained by him would amply show his presence in the place of occurrence. His testimony is found to be reliable and inspires confidence as he had narrated the sequence of incident with the specific overt act of each accused. All of them are known to him and as such the non-conduct of a test identification parade is not fatal to the prosecution. All the accused persons and the deceased are local workers of two rival political parties known to each other. He had undergone a very lengthy cross examination and nothing was brought out to discredit his evidence except the contradictions stated above. He had specified each and every overt act of accused No.1 who had inflicted several stab injuries on the deceased with its precision to the possible extent of an incident of like character. He had also received injuries. The specific overt act of accused Nos.2 and 3 was also spoken by him in its sequences.
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PW2 would prove the complicity of accused No.1 who had inflicted several stab injuries on the deceased. PW2 had identified the knife which was carried on by accused No.1 after the commission of offence.
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cannot be taken as an incriminating factor as the source of the human blood, even according to the prosecution, is not confined to the injuries sustained by the deceased as the very same weapon, MO1 knife, was used for inflicting injury on PW1 in the same incident and the blood group of PW1 still remains in darkness. Hence it was submitted that the recovery of MO1 weapon based on the disclosure statement cannot be brought under the purview of Section 27 of the Evidence Act. Secondly on the reason that the knife was, even according to the prosecution, thrown away by the accused while escaping from the place of occurrence and no definite place of concealment was either confessed or brought out during his alleged disclosure and thirdly on the reason that the weapon was recovered from an open place and that it was not lying concealed.
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the sequence of incident would reveal that there is only possibility of having the blood of the deceased on MO1 knife. The oral evidence tendered by PW1 and PW2, the two eye witnesses, would show that MO1 knife was used for inflicting a stab injury on the back of head of the deceased at first. Then, it was used for inflicting a stab injury on the buttock of PW1. The very same weapon was again used for inflicting several stab injuries on the deceased one after another. When a material object/weapon used for inflicting injuries on several persons is found to be stained with human blood of one of the injured would make it an incriminating object only on satisfying the probability or possibility of having the blood stain of the said injured on the weapon when tested with the sequence of user of the weapon for inflicting injuries to various persons and the gravity and number of injuries so inflicted. In the instant case, MO1 knife was used lastly for inflicting injuries on the deceased. The injuries sustained by the victim are very serious and comes to more than 8 incised wounds. But injuries sustained by PW1 by the user of MO1 is only a single incised wound on his buttock. This would show that the possibility of having blood stain of the deceased in MO1 knife is so high rather than that of PW1. The presence of human blood of the same group of the deceased in MO1
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knife would bring the weapon within the sweep of an incriminating object and hence the recovery would fall under Section 27 of the Evidence Act.
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and had drawn Ext.P14 wound certificate. The following injuries were noted:
2. Diffuse contusion on the dorsom of the right foot.
3. Tenderness over right 4th and 5th metatarsals. X ray revealed fracture of back of fourth metatarsal bone.”
The opinion given by the Doctor that the injury No.1 could be caused with a weapon like MO1 knife further gives corroboration to the oral testimony of both PW1 and PW2.
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knife or weapon and not participated in the assault against the victim is not decisive, regarding the existence of a prior concert for the commission of offence.
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the knife kept by accused No.1 on his loin. The object of Section 34 IPC had been laid down by the Apex Court in Girija Shankar v. State of U.P. (AIR 2004 SC 1808) in reference to the earlier decision on the point in Bharwad Mepa Dana and another v. The State of Bombay (AIR 1960 SC 289). The Apex Court in Lallan Rai and others v. State of Bihar ((2003) 1 SCC 268: AIR 2003 SC 333), relying upon the dictum laid down in Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) and in Mohan Singh v. 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”. The Apex Court in Kashmira Singh v. 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 appellant/accused was tried along with two others for an offence punishable under Section 302 read with Section 34 IPC. The appellant/accused and one of his coaccused caught hold on the deceased and the third one took a knife from his pocket and gave one single blow to the deceased at the neck. The fact that the accused who inflicted the stab injury was carrying
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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. The very same principle was again applied in Kuldip Singh and another v. State of Punjab (1994 Cri.L.J. 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 deceased. Referring the abovesaid decisions, a Division Bench of this Court (in which we are the members) had laid down the legal position in Madhu v. State of Kerala (2017 (5) KHC 83 (DB): ILR 2017 (4) Ker. 861:2017 (4) KLT SN 28: 2017 (2) KLD 718) that the liability can be apportioned amongst the co-accused and would be permissible with the aid of S.34 IPC.
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evidence of common intention and it has to be inferred from the facts and circumstances of each case. The Apex Court in Suresh v. State of
U.P. [(2001) 3 SCC 673] in paragraph 44 observed thus:
“To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (I) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.”
Haryana [(1999) 3 SCC 102] the Apex Court has reiterated the earlier position settled by various decisions, in para 10 thus:
“Even at the cost of repetition it has to be emphasized that for proving the common intention it is necessary either to have direct proof or prior concert or proof of circumstances which necessarily lead to that
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inference and “incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis”. Common intention, arising at any time prior to the criminal act, as contemplated under Section 34 of the Code, can thus be proved by circumstantial evidence.”
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a knife in his loin and the same was used for inflicting a stab injury on the victim and that is evident from the fact that PW1 had received a stab injury from accused No.1 when he confronted with him against attack on the victim by using MO1 knife. It is at that time accused Nos.2 and 3 attacked PW1. In other words, by that time it was noticed by both the accused Nos.2 and 3 that accused No.1 had started attacking the deceased with MO1 knife and had given a stab injury on him, besides inflicting another stab injury on PW1. Though there was no evidence to show a prior concert for the commission of offence of homicide at the initial stage, the sequence of respective overt act by the accused persons that too after the employment of a dangerous weapon like MO1 knife by accused No.1 by giving stab injury on the deceased and the participation of accused Nos.2 and 3 in warding off the interference of PW1 would be an indication that they were actually facilitating the commission of offence of homicide by accused No.1. This has to be read along with the fact that all of them approached the deceased and PW1 with wooden sticks at the initial stage which would otherwise satisfy a prior concert, but not for the commission of graver offence of homicide. The subsequent development by taking MO1
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knife by accused No.1 and causing a stab injury on the deceased, which was noticed by accused Nos.2 and 3 and their further conduct in joining with accused No.1, by preventing PW1, who confronted with accused No.1, by beating on him with wooden sticks, would satisfy a concert, though not much prior to the incident, developed during the course of alleged incident. The act of accused Nos.2 and 3 really amounts to facilitating the stabbing over and again on the deceased by accused No.1 with MO1 knife. The basic requirement which constitutes S.34 is the existence of common intention which implies acting in concert and existence of a pre-arranged plan/preconcert or sharing of a common intention. The requirement is that it should be antecedent to the act committed. What would be the legal position if there was a development during the course of commission of offence constituting sharing of a common intention to do certain acts or sharing the intention to cause a particular effect on the deceased, though it was not initially intended, requires consideration. The Apex Court in Resideo Pande v. State of U.P. (AIR 1955 SC 334) and in Khacharu Singh v. State of U.P. (AIR 1956 SC 546) had laid down the legal position that common intention may develop at the
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spot and held that:
“ 'Common intention' under Section 34 presupposes a prior concert, that is a prior meeting of the minds, but such pre-concert can develop on the spot and without any long interval of time between it and the doing of the act commonly intended. ”
“It is undeniable that common intention can develop during the course of an occurrence, but there has to be cogent material on the basis of which the court can arrive at that finding and hold an accused vicariously liable for the act of the other accused by invoking S.34 of the Indian Penal Code.”
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It is further held in that decision thus:
“For conviction of an accused for a specific act of violence by force of Section 34 there must be direct evidence of his actual participation in that particular act of violence. Where the particular act of violence was the direct result of firing by a particular accused and the common intention of the assembly was not to commit that particular act and there was no evidence to show that common intention to commit that particular act had developed during the occurrence, conviction of the other accused for the act actually committed was not proper, especially when the other accused forming part of the unlawful assembly were absolved of that charge on the ground of no evidence to connect them with the act was available.”
v. State of Haryana [(1969) 3 SCC 717], the legal position was again
reiterated that: “To prove common intention it is not necessary to establish a preconcerted plan and that the common intention may develop on the spot.” Again in Ram Tahal v. State of U.P. [(1972) 1
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SCC 136:1972 SCC (Cri) 80: AIR 1972 SC 254: 1972 Cri LJ 227] the following observations were made:
“A common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or other relevant circumstances of the case. This reference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention.
The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. The pre-arranged plan may develop on the spot during the course of the commission of the offence, but the crucial circumstance is that the said plan must precede the act constituting the
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offence. If that be so, before a court can convict a person under S.302 or 304 read with S.34 of the IPC, it should come to a definite conclusion that the said person had a prior concert with one or some more persons, named or unnamed for committing the offence.”
(emphasis supplied)
“ Where the deceased was murdered by one of the two accused with a gandasa at 10.30 P.M., while he was sleeping on a cot in his own Mandal, while the other accused, his brother without taking part in the assault stood by with a spear in his hand so as to overcome any outside interference with the attainment of their project and both of the accused ran away together after the murder, it was held that these facts had a sufficient bearing on the existence of common intention to murder. ”
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“Question is whether it is obligatory on the part of the prosecution to establish commission of an overt act to press into service Section 34 of the Penal Code. It is no doubt true that the court likes to know about an overt act to decide whether the person concerned had shared the common intention in question. Question is whether an overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch as this section gets attracted when 'a criminal act is done by several persons in furtherance of the common intention of all'. What has to be, therefore, established by the prosecution is that all the persons concerned had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.”
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407] held as follows:
“Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.”
22. In a recent decision in Sudip Kr. Sen alias Biltu v. State of
West Bengal and others (AIR 2016 SC 310) the legal position was again laid down as follows:
“S.34 embodies the principle of joint liability in the doing of a criminal act and essence of that liability is the existence of common intention. Common intention implies
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acting in concert and existence of a pre-arranged plan which is to be proved/inferred either from the conduct of the accused persons or from attendant circumstances. To invoke S.34 it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- (I) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. Common intention implies pre- arranged plan. Under S.34 a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The essence of liability under S.34 is conscious mind of persons participating in the criminal action to bring about a particular result. The question whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.”
(emphasis supplied)
148), it was held that :
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“In a trial for an offence of murder under clause thirdly of S.300 read with S.34, I.P.C., it is always a question of facts whether the accused shared a particular knowledge or intent. One has to look for a common intention, that is to say, some prior concert and what that common intention is. That there should be an appreciable passage of time between the formation of the intent and the act is not necessary for common intention may be formed at any time. Then one must look for the requisite ingredient that the injuries which were intended to be caused were sufficient to cause death in the ordinary course of nature. Next one must see if the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death. When all these circumstances are established and death was in fact, caused by injuries which were intended to be caused and which were sufficient in the ordinary course of nature to cause death, the resulting offence of each participant would be murder.”
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had inflicted a stab injury on the buttock of PW1, so as to overcome his interference. Thereon accused Nos.2 and 3 turned against PW1 with wooden sticks while accused No.1 engaged in indiscriminate attack on the deceased by stabbing on his body over and again with MO1 knife. All these accused persons came to the place of occurrence together armed with wooden sticks. The fact that they came together armed with wooden sticks would clearly show their intention to attack the deceased to the extent possible by the user of wooden sticks. Even if it is assumed that they were not having the knowledge regarding the knife kept by the accused at the initial stage, it came to their notice at the time the accused inflicted the first stab injury on the deceased and PW1. It is not at all necessary that all the accused should participate in the assault against the deceased. [See Chaman and another v. State of Uttaranchal (AIR 2009 SC 1036)] . An act which could not have been done by one of the accused alone without the assistance of other accused persons at least by mere presence and when it was obtained for the commission of offence, the liability under S.34 can be fastened against each of the accused irrespective of whether they had participated in the assault against the
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deceased or not. The Apex Court had the occasion to consider the said question in Nand Kishore v. State of M.P. (AIR 2011 SC 2775) wherein accused all unarmed went to deceased to demand money. However, the other two co-accused got together and went to the extent of stabbing the deceased over and again at most vital parts of the body, puncturing both heart and lung as well as pelting stones at him even when he fell on ground. Vicarious liability under Section 34 IPC was applied on the following reasoning:-
“While dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any pre-determined plan to commit such an offence. This will always depend on the facts and circumstances of the case, like in the present case Mahavir, all alone and unarmed went to demand money from Mahesh but Mahesh, Dinesh and Nand Kishore got together outside their house and as is evident from the statement of the witnesses, they not only became aggressive but also committed a crime and went to the extent of stabbing him over and over again at most vital parts of the body puncturing both the heart and the lung as well as pelting stones at him even when he fell on the ground. But for their participation and a clear frame of
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 34 ::
mind to kill the deceased, Dinesh probably would not have been able to kill Mahavir. The role attributable to each one of them, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the deceased Mahavir. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and giving such serious blows and injuries with active participation shows a common intention to murder the deceased. In these circumstances, the conclusions arrived at by the trial Court and the High Court would not call for any interference.”
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 35 ::
contusion on back of buttock. Ext.P5 wound certificate pertaining to accused No.2 shows two injures, contusion on the back of buttock and conjunctiva of right eye. Ext.P6 wound certificate does not show any injury sustained by accused No.3. According to PW5, the Doctor who attended the accused, the injuries could be possible by beating with sticks. This would probabilise a case of counter attack by the deceased and PW1 against the accused persons. In that event, retaliation by accused Nos.2 and 3 against PW1 is also probable. It was submitted that it is not proper to reverse the order of acquittal by the appellate court as the same is standing on a different footing from that of an appeal against conviction, unless there is substantial and compelling reasons warranting interference. Further, the existence of another probability for accused Nos.2 and 3 in participating in the occurrence rather than a prior concert would relieve them from the constructive liability under Section 34 IPC.
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 36 ::
Section 378 provides for getting a leave to an appeal to the High Court under sub section (1) or (2), the legislative intend, conferring rights on an accused as that of a free citizen by giving a definite value to the judgment of acquittal, is well clear and evident. Jurisdiction, thus vested with the Appellate Court, though not limited, governed by the principles laid down in Sheo Swarup v. King Emperor (1934 SCC Online PC 42) as under:
“Sects. 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this,
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 37 ::
however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.”
“ The foregoing discussion yields the following results:(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons” are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 38 ::
also express those reasons in its judgment, which lead it to hold that the acquittal was not justified”.
“The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 CrPC has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts.
Under the scheme of CrPC, acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 39 ::
taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law.
If we analyse the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
There are no jurisdictional limitations on the power of the appellate court but it is to be exercised with some circumspection. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher court would examine the matter as a court of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the appellate court may even proceed to record the judgment of guilt to meet the ends of justice, if it is really called for.”
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 40 ::
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 41 ::
finding of the Sessions Court simply on the reason that another view is also possible on evidence against the accused person. What is required is the exclusive nature of the inference that can be drawn without leaving any other hypothesis regarding prior concert irrespective of whether it was developed either at the time or during the course of occurrence or prior to that. In the given circumstance, it is not proper to draw an inference that the attack against PW1 by accused Nos.2 and 3 is solely for the purpose of facilitating the homicidal death of the victim in the hands of accused No.1 and as such it is not proper to fasten liability under S.34 of IPC against accused Nos.2 and 3 for the commission of offence of homicide. They are responsible for the specific overt act against PW1 causing injuries and fracture to the leg of PW1 and it would satisfy the ingredients which constitute the offence punishable under Ss.326 and 324 IPC.
against accused No.1 being lesser sentence does not call for any interference by this Court.
Crl.Appeal No.1477 of 2012, Crl.A.No.1481 of 2012 & Crl.A.(V) No.359 of 2013
:: 42 ::
In the result, all the appeals are dismissed.
Sd/
A.M.SHAFFIQUE
JUDGE
Sd/
P.SOMARAJAN
JUDGE
ahz/
3 issues framed by the court
Did the evidence warrant interference with the first accused's murder conviction?
Could the other accused be held liable for murder through common intention despite an alternative explanation for their participation?
Could recovery of a discarded knife from an open place fall within Section 27 of the Evidence Act?
Colour shows how this judgement treated each authority
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(AIR 2004 SC 1808) · Who else cites this
Lallan Rai and others v. State of BiharRelied on¶84
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Kashmira Singh v. State of PunjabExplained¶84
(AIR 1994 SC 1651: 1994 CrLJ 1974) · Who else cites this
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(1994 Cri.L.J. 2201) · Who else cites this
Madhu v. State of KeralaRelied on¶87
(2017 (5) KHC 83 (DB): ILR 2017 (4) Ker. 861:2017 (4) KLT SN 28: 2017 (2) KLD 718) · Who else cites this
Suresh v. State of U.P.Relied on¶92
[(2001) 3 SCC 673] · Who else cites this
Jai Bhagwan v. State of HaryanaRelied on¶95
[(1999) 3 SCC 102] · Who else cites this
Resideo Pande v. State of U.P.Relied on¶106
(AIR 1955 SC 334) · Who else cites this
Khacharu Singh v. State of U.P.Relied on¶106
(AIR 1956 SC 546) · Who else cites this
Sheoram Sing v. State of U.P.Relied on¶111
(AIR 1972 SC 2555) · Who else cites this
Harwant Singh v. State of HaryanaRelied on¶118
[(1969) 3 SCC 717] · Who else cites this
Ram Tahal v. State of U.P.Relied on¶122
AIR 1972 SC 254 · Who else cites this
Lalai alias Dindoo and another v. State of U.P.Relied on¶129
(AIR 1974 SC 2118) · Who else cites this
Krishnan v. State of KeralaRelied on¶133
[(1996) 10 SCC 508] · Who else cites this
Sudip Kr. Sen alias Biltu v. State of West Bengal and othersRelied on¶141
(AIR 2016 SC 310) · Who else cites this
Chaman and another v. State of UttaranchalRelied on¶155
(AIR 2009 SC 1036) · Who else cites this
Nand Kishore v. State of M.P.Relied on¶158
(AIR 2011 SC 2775) · Who else cites this
Sheo Swarup v. King EmperorApplied¶170
(1934 SCC Online PC 42) · Who else cites this
Sanwat Singh v. State of RajasthanApplied¶175
(AIR 1961 SC 715) · Who else cites this
Govindaraju v. StateApplied¶180
[(2012) 4 SCC 722] · Who else cites this
7 provisions across 3 enactments
KUNHIMUHAMMED @ KUNHEETHU
STATE OF KERALA
A.M.SHAFFIQUE
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
