Partly allowed

K.M.Ibray @Abdulla Ibrayi @ Bhai v. State of Kerala

Kerala HC19 Jun 2019CRL.A/282/2015

Case brief

AI extract

What is this about?

Conviction appeal by the first accused, who was found guilty of conspiracy, house trespass, robbery, attempt to murder and murder of a woman and of grievous hurt to her son in the course of a robbery. The court confirmed the convictions for conspiracy, robbery and house trespass but set aside the murder conviction, holding the offence fell under Section 304 Part II IPC, and replaced the Section 30

What did the court decide?

Convictions under Sections 120B, 397 and 449 IPC maintained; conviction under Section 302 IPC set aside and altered to Section 304 Part II IPC with rigorous imprisonment for ten years; conviction unde

K.M.Ibray @Abdulla Ibrayi @ Bhai Vs State of… — Murder and Culpable Homicide | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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WEDNESDAY, THE 19TH DAY OF JUNE, 2019/29TH JYAISHTA, 1941

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CRL.A.No.282 of 2015

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[AGAINST THE JUDGMENT IN CP 21/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, MANANTHAVADY DATED 15-06-2009

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AGAINST THE ORDER/JUDGMENT IN SC 154/2009 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KALPETTA DATED 21-02-2015

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CRIME NO.11/2007 OF Padinjarethara Police Station, Wayanad]

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APPELLANT/1ST ACCUSED:

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K.M.IBRAY @ABDULLA IBRAYI @ BHAI AGED 38 YEARS S/O. MOIDU, KUTHINI HOUSE, CHENNALODE.

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BY ADV. SRI.GEORGE MATHEWS

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA

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STATION HOUSE OFFICER, PADINHARATHARA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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BY SPL.PUBLIC PROSECUTOR SMT.S.AMBIKA DEVI.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

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10.06.2019, THE COURT ON 19.06.2019 DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE & N.ANIL KUMAR, JJ.

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Dated this the 19^th day of June, 2019

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JUDGMENT

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N.Anil Kumar, J:

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Appellant is the 1^st accused in S.C.No.154/2009 on the files of the Additional Sessions Court-I, Kalpetta, Wayanad. The appellant/first accused has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and sentenced to undergo imprisonment for life and also to pay a fine of Rs.30,000/-, in default to undergo rigorous imprisonment for one year more. Besides, the appellant has been found guilty of the offences punishable under Sections 120B, 449, 397, 307 and 302 read with Section 34 of IPC for which he has been separately sentenced to undergo rigorous imprisonment for three years for the offence under Section 120B of IPC, rigorous imprisonment for three years and also to pay a fine of Rs.10,000/-, in default to undergo imprisonment for six months for the offence under Section 449 of IPC, rigorous imprisonment for seven years for the offence under Section 397 IPC, rigorous imprisonment for seven years and also to pay a fine of Rs.10,000/- in default to undergo imprisonment for six months more for the offence under Section 307 IPC respectively. The above substantive

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sentences were ordered to run concurrently with a direction to pay the entire fine amount, if realised, to PW2, who is the son of the deceased as compensation. Feeling aggrieved, the present appeal has been filed.

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Facts, shorn of unnecessary details, as unfolded by the prosecution are mentioned hereinbelow:-

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On 31.1.2007 at 12 o' clock in the night, the appellant/1^st accused, who was a party to a criminal conspiracy to commit robbery and murder along with the 2^nd accused, committed house trespass by trespassing into the temporary shed where the deceased Asya and her son PW2 had been residing and in furtherance of their conspiracy, the accused hit deceased Asya and PW2 on their head with a handle of pickaxe and the 2^nd accused hit them with MO6 iron bar on their head, and thereby causing hurt to deceased Asya and PW2. It is further alleged that the accused 1 and 2 committed robbery and appropriated a sum of Rs.4,000/- and gold ornaments worth Rs.14,000/- from the above shed. Asya succumbed to the injuries sustained to her.

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Ext.P1 First Information Statement was given by PW1. PW1 is none other than the co-brother of deceased Asya. On the strength of Ext.P1, PW24 registered Ext.P1(a) FIR for the offences punishable under Sections 449, 307 and 302 of IPC initially. PW29, who was the Circle of Inspector of Police, Vythiri, commenced investigation on 1.2.2007 and

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prepared Ext.P9 scene mahazar. PW29 recovered MO17 broken mirror, MO18 to MO20 blood stained shirt, pant and skirt respectively. That apart, he also recovered MO16 spade, MO15 chopper and MO5 watch from the scene of occurrence. He collected blood stains from the soil and took into custody of the same as per Ext.P9. Around 3.30 p.m. on the very same day, he prepared Ext.P2 Inquest Report at the hospital in the presence of the witnesses. By verifying the dead body of the deceased, PW29 seized MO21 studs, MO22 green pearl chain, MO23 chord, MO24 anklet, and 2 pieces of hairs as per Ext.P2.

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The 2^nd accused was arrested on 06.02.2007 from the Padinharathara Town as per Ext.P12 arrest memo. His body search was conducted and seized an amount of Rs.400/- (MO25 series), Ext.P14 receipt evidencing pledging of gold ornaments, MO8 cigarette lighter etc. as per Ext.P13 seizure mahazar. A1 was arrested as per Ext.P36 arrest memo from Chennalode. A1 and A2 were brought to Vythiri Police Station. On being questioned, A2 stated that he had thrown away MO6 iron bar at Mukrikulam and if he was taken there, he would show the same. Pursuant to Ext.P4(a) confession statement as stated above, PW29 proceeded to Mukrikulam as led by the accused No.2 and recovered MO6 from Mukrikulam where it was allegedly thrown away after the occurrence. PW29 recovered MO6 in the presence of PW3, the local Panchayat

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member. PW3 stated that he was present at the time when MO6 iron bar was recovered. A1 further gave a confession statement to the effect that he had kept MO2, MO3 and MO12 in the wooden chest and that he would show the same if he was taken to that house. Accordingly, PW29 reached the place as led by the accused and recovered MO2, MO3 and MO12, which were kept in MO4 box as per Ext.P16 seizure mahazar. PW29 effected recovery in the presence of witnesses pursuant to Ext.P16(a) confession statement given by the first accused in accordance with Section 27 of the Evidence Act. PW29 also recovered MO2 to MO4 and MO12 in the presence of PW12. That apart, PW29 recorded confession statement of the 2^nd accused. As per Ext.P18(a) confession statement given by the 2^nd accused, PW29 reached at Thamarachalil Bankers at Kalpetta as led by the 2^nd accused and recovered MO1 necklace which was pledged with PW13. PW13 was running a financial institution during the relevant time at Kalpetta. Ext.P17 is the computer slip produced by PW13. PW29 seized MO1 as per Ext.P18 seizure mahazar. As indicated earlier, PW29 adduced evidence to show that when he searched the body of accused No.2, he had seized MO7 purse and Ext.P14 receipt issued by Thamarachalil Bankers for pledging MO1 as per Ext.P13 seizure mahazar. This has been confirmed by PW13, who identified Ext.P14, which was issued from his office. PW13 testified that PW29 brought accused No.2 to his office from

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where the above documents and MO1 were seized under Ext.P18 seizure mahazar. Subsequently, accused Nos.1 and 2 were produced before the jurisdictional Magistrate and thereupon, they were remanded to judicial custody.

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PW29 questioned the witnesses, completed the investigation in this case and laid the charge sheet before the Judicial First Class Magistrate Court-II, Mananthavady where the case was taken on file as C.P.No.21/2009 and committed the case to the Sessions Court, Kalpetta as S.C.No.154/2009 on 7.7.2009 after complying with the usual formalities.

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The learned Sessions Judge took cognizance of the offences punishable under Sections 120B, 449, 397, 307 and 302 read with Section 34 of IPC against A1 and A2.

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Accused Nos.1 and 2 were in judicial custody from 7.2.2007 to 20.6.2007. They were released on bail on 20.6.2007. First accused was in judicial custody from 21.2.2015 onwards.

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Both the accused entered appearance before the Sessions Court through the counsel of their choice. After hearing both sides, charge was framed against accused Nos.1 and 2 for the offences punishable under Sections 120B, 449, 397, 307 and 302 read with Section 34 of IPC. Both the accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case.

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Pending trial of the case, accused No.2 Muhammed Musthafa @ Musthafa had absconded. Case against him was split up as S.C.No.266/2014. The Sessions Court decided to proceed the case against the 1^st accused (hereinafter referred to as 'the accused'). The prosecution altogether examined PW1 to PW30 on prosecution side and marked Ext.P1 to Ext.P46 and material objects as MO1 to MO30 series.

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After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances, appearing against him in the evidence for the prosecution. The accused, when questioned under Section 313 of the Cr.P.C., denied the entire prosecution case and filed a statement contending that on 4.2.2007, after the death of Asya, he had attended the marriage ceremony of his neighbour's daughter and on that day, there was an altercation between PW3 K.Mammootty and himself for the simple reason that the request made by Asya for allocation of a house to Asya through the Panchayat Scheme was turned down due to political enmity. According to him, PW29 took him into custody and implicated in this case as desired by PW3. PW3 was the Ward member of the Pandinharathara during the relevant time. He was an attestor to Ext.P2 inquest report, Exts.P3.P4 and P5 mahazars.

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The learned Sessions Judge, who conducted the trial, did not deem fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce evidence, which he might have in support thereof. On the side of the accused, no defence evidence was adduced. Exts.D1, D2(a) to D2(d) and D3 are the case diary contradictions proved in this case.

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After conclusion of the trial, the learned Sessions Judge as per judgment dated 21.2.2015 found the accused guilty for the offences punishable under Sections 120B, 449, 397, 307 and 302 read with Section 34 of IPC and sentenced him as stated in paragraph No.1 of this judgment supra. The appellant assails the conviction and sentence passed by the trial court in this appeal.

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Challenging the appreciation of evidence and findings recorded by the learned trial judge, learned Senior Counsel Sri.Gracious Kuriakose appearing on behalf of the appellant highlighted various points, which were wrongly relied on by the trial court, for basing its judgment of conviction and sentence. According to the learned Senior Counsel for the appellant, the accused was not present at the scene and date of occurrence. It is further contended that the injury caused on the deceased was not sufficient to cause death of the deceased. The alleged recoveries made by PW29 in accordance with Section 27 of the Evidence Act lack in material particulars,

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it has been contended. PW2 an eye witness to the occurrence is stated to be unreliable. According to the prosecution, there are no connecting links to connect the accused with the crime alleged.

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On the other hand, the learned Public Prosecutor appearing on behalf of the State submitted that the allegations of house trespass, robbery and murder are proved based on cogent and convincing evidence. Learned Public Prosecutor submits that evidence tendered by PWs.1 to 3 are reliable and nothing is brought out in cross examination to discredit the evidence tendered by them. It is further submitted that recovery of material objects was effected in accordance with the scheme of the Evidence Act and the entire facts and circumstances inter alia would show that the offences are proved beyond reasonable shadow of doubt. Heavy reliance is also placed on the medical certificates and postmortem certificate issued.

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A large number of witnesses (30 in all) had been examined by the prosecution in support of its case and over 46 documents were marked. That apart, MOs.1 to 30 were also produced. For this appeal, it would be suffice to notice the relevant evidence of eye witnesses and the recovery effected by the investigating officer in accordance with Section 27 of the Evidence Act. Ext.P2 Inquest Report, Ext.P34 Postmortem Certificate issued by PW27, Exts.P31 to 33 wound certificates, Exts.P44 to

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P46 Chemical Examination Reports and the material objects recovered pursuant to the information furnished by the accused persons also require a specific notice.

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PW27 Dr.Joseph.T.John, who was then working as Professor and Police Surgeon, Department of Forensic Medicine, Medical College, Calicut conducted the postmortem examination of the deceased Asya. According to PW27, he noted 13 antemortem injuries on the body of the deceased, details of which have been mentioned by him in Ext.P34. For the present, it is not necessary to note the details of each of the injuries sustained by the accused. The evidence of PW27 so far as injury No.13 is concerned, being vital, and it would require specific mention, which is stated as below:-

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“13)Area of scalp at, around and between injury numbers 6 and 7 contused reddish, circular, 4cm in diameter, 0.5 cm deep. Depressed comminuted fracture of right side of back of skull, over occipito prieto temporal area, 11x4-5x0.1-0.2cm, with upper inner corner, 4cm outer to Imbda at 3 “O” Clock position, with fissured linear transverse radiation from outer edge along squamous part of right temporal bone, forwards for 7 cm. Dura underneath torn correspondingly. Brain (1260g) oedematous with pressure grooves around cerebellar tonsils and unci and with fluid blood in ventricles. Bilateral reddish fluid subdual 0.1-0.2cm thick bleeding present. Reddish subarchanoid bleeding around occipital lobes and cerebelli.”

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Based on injuries 1 to 13 particularly with reference to injury No.13, PW.27 opined that the deceased died of head injury. On crossexamination, PW27 specifically stated that injury Nos.1 to 9 and 13 could

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be caused by MO.6 weapon. PW27 further noted depressed comminuted fracture on back of skull on the body of the deceased, which according to him, is capable of causing death.

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The fact that Asya met with homicidal death is undisputed. It is also not in dispute that her son PW2 sustained grievous injuries in the very same occurrence. PW2 stated before court that he was a student of 8^th standard on the date of occurrence. Around 8.30 p.m., on the fateful night, he and his mother Asya stayed on the same bed. The house, where they were residing on the relevant day, was a temporary shed made up of plastic sheets without any proper doors or windows. The doors are covered with clothes on either side. According to him, his mother was tired. Hence she slept early. While so, he was reading a children's magazine namely 'kalikudukka'. At that time, he could notice A1 and A2 were peeping into the room by removing the curtain on the door. He stated that he could identify the accused persons, who were residing in the very same locality in the kerosene lamp in front of him. He stated that he knew the accused persons prior to the date of occurrence and he could identify them very easily. However, according to him, he became frightened to notice their untimely presence at his residence. Out of fear, he covered his head with a bedsheet. In this connection, it is pertinent to note that PW2 was only 14 years old when the occurrence took place. According to him,

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a few minutes later, he heard the voice of A1 and A2 from the side of the cot. Immediately thereafter, PW2 removed the bedsheet slowly from his face and looked at them clearly. On seeing the act of PW2, A1 and A2 hit him with dangerous weapons. Immediately, he became unconscious. PW2's evidence clearly shows that he sustained grievous injury in the occurrence. PW2 deposed that he saw accused Nos.1 and 2 trespassing into his house on the date of occurrence around 8.30 p.m. in the night. Nothing was brought out in cross examination to show that he was having any previous enmity towards the accused 1 and 2. His evidence is natural and trustworthy. A boy of 14 years old is naturally frightened if he has an occasion to see intruders in the night and that too if the house has no proper doors and windows. His evidence would indicate that immediately after the occurrence, he received a blow all of a sudden and he was not in a position to make any sound to wake his mother up. The accused is an autorickshaw driver. PW2 knew the accused 1 and 2 right from his childhood. On evaluating his evidence, we are of the view that his evidence is reliable and trustworthy.

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As indicated earlier, PW2 sustained grievous injuries in the occurrence. PW22 the Medical Officer of the Santhi Nursing Home, Padinharathara deposed that the deceased Asya and PW2 had been brought to his hospital for treatment. Since their condition was critical, they

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were referred to the Govt.Hospital, Mananthavadi, where PW25 the Medical Officer of Mananthavady Hospital examined Asya and PW2 noting the injuries. After examination, Asya was declared dead. PW27 conducted postmortem examination on the body of Asya whereas PW28 Medical Officer of the Medical College Hospital, Calicut treated PW2 and on completion of treatment, issued Ext.P35 discharge certificate. Ext.P35 would indicate that PW2 sustained fracture nasal bone, fracture ethmoid air cells, fracture bilateral parietal bones, fracture petrous temporal bone, fracture anterior and posteriolateral wall of both maxillary sinus, and fracture squamous temporal bone right. On going through Ext.P35, it is clear that grievous injuries were sustained by PW2. PW2 has no case that the accused inflicted injuries on him with such intention or knowledge that if the accused by that act caused death, the accused would be guilty of murder. The prosecution has failed to prove that there was an intentional preparatory action to murder the deceased which failed in its object. In this case, the prosecution has no such case. Going by the injury sustained to PW2, it is clear that the injuries are coming under the purview of Section 326 of IPC.

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19. PW5, who was a neighbour of deceased Asya, had occasion to first see the deceased and PW2 with bleeding injuries. The sequence of events would show that after hearing the hue and cry of PW5, PW4- her

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father also rushed to the spot, where he had seen Asya and PW2 with severe injuries. PW1, the co-brother of the deceased Asya, adduced evidence to show that Asya, who was residing in a shed with her son PW2, had saved money to build a house of their own. It was their dream in life. In fact, every arrangements had been made to put up a basement of the building for Asya. To prove that the deceased had money with her at her residence, prosecution examined PWs.8,9 and 16. PW16 adduced evidence to show that A2 had entrusted a sum of Rs.5,500/- with him. Immediately, after coming to know that A2 was arrested by the Police in connection with robbery and murder of deceased Asya, he went to the Police Station and entrusted the said amount to the Police Station. The Police recovered MO28 currency notes as per Ext.P6 seizure mahazar in the presence of PW3. PW3 is a signatory to Ext.P6 seizure mahazar. PW8 would testify that he had borrowed a sum of Rs.1500/- from the 2 nd accused and on the request of the Police, he produced MO29 series currency notes before the Police. The Police recovered MO29 series as per Ext.P8 mahazar wherein PW3 is a signatory. PW9, who borrowed an amount of Rs.500/- from A2 produced the same as per MO.30 series before the Police in the presence of PW3 as per Ext.P8 mahazar.

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20. Recovery of valuables owned by the deceased from the accused 1 and 2 is of great importance. MO2 series gold ear stud, MO3 gold ring,

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MO12 stud with hook which were kept by the accused No.1 and MO1 gold necklace, which was kept by accused No.2 respectively were recovered in accordance with Section 27 of the Evidence Act. The most important circumstances for the prosecution in the case are the disclosure statements of the accused and recovery of stolen property at the time of occurrence upon such statements. The admissibility of the statements made by the accused persons to PW29 is challenged mainly on two grounds. Firstly, factually no such statement was made. Secondly, the statement made was inadmissible in evidence and the alleged recovery was effected. On going through the evidence let in this case, we are satisfied that the prosecution adduced reliable evidence in accordance with the procedure provided under Section 27 of the Evidence Act. Section 114 of the Evidence Act provides that the court may presume the existence of any fact, which it thinks likely to have happened, regard being had to common course of natural events,human conduct, public and private business, in their relation to the facts of the particular case. Illustration(a) of Section 114 of the Evidence Act provides that a man, who is in possession of stolen goods soon after the theft, may be presumed by the court to be either the thief or the one who has received the goods, knowing them to be stolen, unless he can account for his possession. PW2, who is none other than the son of the deceased, had occasion to see the material

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objects several times and he had identified the items before court. The fact that MOs.1 to 3 belonged to Asya is further proved by the oral evidence of PW1, who is her co-brother, PW7 her brother and PW26 the Salesman of the jewellery. After seizure of MOs.1 to 3, PW29 had shown the same to PW1. He went to the extent of identifying MO4 box where Mos.1 to 3 were kept. On cross-examination, he stated that prior to 5 to 6 months from the date of occurrence, he pledged MO.1 with M/s.Amin Gold Palace for his requirement as entrusted by deceased Asya. PW1 also identified MO4 box and MOs.1 to 3. PW26 adduced evidence to show that Asya purchased gold ornaments from Amin Gold Palace wherein he was working as Salesman on the date of purchase. From the evidence of PWs.1,2,7 and 26, it is clear that MOs.1 to 4 and 12 belonged to Asya.

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21. In Ganesh Lal v. State of Rajasthan [( 2002)1 SCC 731], the Supreme Court considered the case law on the subject relying on the strength of the presumption that the court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing, by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to the deceased may enable a presumption being raised against the accused that he is guilty, not only of the offence of theft or dacoity, but also of offences forming part of the same

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transaction. There can be no doubt that A1 and A2 came into possession of the incriminating articles soon after the crime. Under the circumstances, it appears that the recovery of the stolen articles from accused 1 and 2 would lead to a presumption that A1 and A2 had stolen the articles from the deceased.

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22. MO11 handle of pickaxe and MO6 iron bar were used by the accused to inflict injuries to the deceased Asya and PW2. MO11 was recovered by the investigating officer (PW29) pursuant to Ext.P16(a) confession statement given by the accused in accordance with Section 27

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of the Evidence Act. MO11 was recovered from the house bearing door No.IX/128. PW18, the Secretary of the Local Authority produced Ext.P20 ownership certificate stating that Building No.PP IX/128 belonged to the accused.

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23. So far as the offence under Section 397 IPC is concerned, it is brought out from the evidence of PW27 and PW28 that the accused used deadly weapon and attempted to cause death and grievous hurt to the deceased Asya and PW1. There can be no manner of doubt that it was the accused persons, who had committed the offence. It is proved that the accused No.2 used the said weapon to inflict the injuries, to the deceased Asya and PW2. PW28, the Medical Officer attached to the Medical College Hospital, Calicut, who examined PW2 and issued Ext.P35

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discharge certificate, also adduced evidence to show that PW2 sustained grievous injuries. We, therefore, find no difficulty in confirming the conviction of the accused under Section 397 of the IPC. Having regard to the fact that the said offence was committed on the deceased and PW2, to facilitate robbery, further examination is required to justify the imposition of life sentence for the offence under Section 302 of IPC and imprisonment for 7 years and to pay a fine of Rs.10,000/- and in default to undergo RI for 6 months for the offence punishable under Section 307 IPC. Legally, Section 307 of IPC and 302 IPC go hand in hand. In the former, the victim is alive and in the latter, the victim is no more.

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24. Dictionary wise and popular parlance wise, murder is the crime of intentionally killing a person. On the contrary, the offence of attempt to murder, which is given under section 307 of the IPC is invoked when a person's criminal intention, or knowledge of the highest degree of criminality equating to intention, is accompanied by an overt act, which when complete would have resulted in the death of a person, but did not, due to certain intervening circumstances which were not actually under the control or in consonance with the intention of the accused.

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The contention next raised is that the appellant has no intention to cause death because he did not intend to cause bodily injuries on the deceased to murder. In other words, it is contended that the bodily injuries

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found on the deceased were not intentionally inflicted by the appellant. To consider as to whether the act was done with the intention of causing death, all the acts, utterances and circumstances are to be counted together. It is a fact that the prosecution established beyond doubt that the bodily injuries were present on the deceased. PW27 opined that injury No.13 is sufficient in the ordinary course of nature to cause death. There is nothing on record to show that MO1 handle of pickaxe was brought by the accused persons from somewhere with an intention to do away with PW2 or the deceased Asya. Merely because bodily injuries were present and

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the nature of injuries was sufficient to cause death of the deceased, we are of the view that the ingredients of the offences under Sections 302 and 307 are not proved by the prosecution. In addition to the bodily injury and the nature of injury, it is incumbent on the part of the prosecution to prove that the accused Nos.1 and 2 had an intention to inflict that particular injury or injuries to do away with the deceased. To put it differently, it is necessary to prove that the injury was not accidental or unintentional. From the evidence let in, it is clear that the intention of the accused 1 and 2 was to commit robbery. Having regard to the fact that the injury was inflicted on

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the deceased while committing robbery, the trial court is justified in imposing the sentence under Section 120B and 397 of IPC. With reference to Section 302 of IPC is concerned, there is no evidence to show

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that A1 and A2 had either express malice or implied malice to do away with the deceased Asya. The nature of the acts suggests that the death of the deceased was occasioned by injury No.13 and complications arising therefrom including head injury resulting in her death. The circumstances appearing against the accused require to be considered in the light of the evidence on record and the only logical inference which could be drawn is that the accused along with the absconding accused had no intention to cause death of the deceased or knowledge that the act of the accused 1 and 2 is likely to cause death. The intention of the accused persons in inflicting injuries on deceased Asya and PW2 was for the purpose of committing robbery. The accused 1 and 2 had no previous enmity towards the deceased Asya or PW2. In fact, they had an eye on cash and gold ornaments belonging to Asya. Inflicting grievous injury and attempting to cause death of the victims are part and parcel of Section 397 of IPC. On going through the provisions of Section 397 of IPC, it is self-explanatory in this regard. The offence under Section 397 is independent without the aid of Section 307 IPC. There is no evidence to show that the accused inflicted injuries on PW2 with an intention to murder Asya or PW2. The requisite knowledge that in view of the circumstances, such act may cause death also cannot be attributed to the accused. On analysing the entire facts and circumstances of the case, particularly with reference to the

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predominant intention of the accused to commit robbery, we are of the considered view that the accused cannot be held liable for murder for the

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simple reason that the accused had no intention to cause death or knowledge that such act may cause death. The trial court on well-founded reasons has rightly come to the conclusion that the accused along with the second accused conspired together, committed house trespass, grievous hurt to PW2 and robbery on the date of occurrence. However, in the absence of clear intention on the part of the accused to murder Asya, it is not just and proper to convict and sentence the accused for the offence under Section 302 of IPC. Judged by the above standards, we are of the view that the assault inflicted on deceased Asya would more appropriately attract the offence under Section 304 Part II of IPC. We are not persuaded to find out some way of treating the offence to be under Section 302 of IPC.

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26. In the light of the discussion made hereinabove, we partially allow the appeal filed by the appellant/accused. While maintaining the conviction under Section 120B, Section 397 IPC and Section 449 of IPC and the sentences imposed thereunder, the conviction under Section 302 of IPC is set aside and altered to one under Section 304 Part II of IPC and sentenced to undergo rigorous imprisonment for a period of ten years. The sentence for commission of offence under Section 307 IPC is set aside for

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the reasons stated supra and instead the accused is sentenced to undergo rigorous imprisonment for 7 years for the offence punishable under Section 326 IPC. All the sentences imposed shall run concurrently. The judgment

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of conviction and order of sentence passed by the trial court is modified to the above extent.

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The Criminal Appeal is partly allowed.

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Sd/-

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A.M.SHAFFIQUE, JUDGE

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sd/-

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N.ANIL KUMAR, JUDGE