Criminal Appeal Nos. 1198-1199 of 2005 (decided August 27, 2010) - Prathap & Anr. v. State of Kerala - Coram: B. Sudershan Reddy and Surinder Singh Nijjar, JJ.; judgment delivered by Surinder Singh Nijjar, J. - Penal Code ss. 302, 149, 120-B; Constitution of India, Article 136 - Murder: after the deceased Kochukuttan and Murali (CW-11) had assaulted the appellants Prathap (A1) and Devakumar @ Jayakumar (A2), a conspiracy was hatched at Chaithram Restaurant and, on 24.6.1997, ten accused came by jeep to Veliyam junction armed with swords, iron rods, choppers, knife and stick; A1 cut the deceased's head, A2 his chest, and the other accused inflicted further injuries; the deceased succumbed at 8.10 p.m. The Sessions Court, Kollam (Sessions Case No. 564/1999) convicted A1, A2, A5-A7 under Section 302 IPC (life imprisonment and fine of Rs. 20,000/- each) and under Section 149, and A1, A2 and A4 under Section 120-B; the High Court of Kerala at Ernakulam (common judgment dated 28.6.2004 in Criminal Appeal Nos. 432 and 873 of 2003) upheld the appellants' conviction under Section 302/149 but set aside the 120-B conviction, upheld the acquittal of A3 and A8-A10 and acquitted A4-A7. Held, dismissing the appeals: (i) PW1's evidence, corroborated by PW2 in every material particular, was unflinching, coherent and consistent; the load-shedding/darkness objection and the absence of an identification parade were of no consequence as the appellants were previously known to the witnesses; (ii) recoveries of the swords at the appellants' instance and the medical evidence (20 ante-mortem injuries; death due to chest and left-palm injuries 14-20 or the cumulative effect of all injuries) showed death resulted from the injuries caused by the accused and that they acted with a common object to eliminate the deceased - constructive liability under Section 149 IPC (Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 and Chanda v. State of U.P., (2004) 5 SCC 141, relied on); (iii) parity rejected - it is open to a court to differentiate convicted accused from acquitted co-accused, the appellants having clear motive and specific attribution while the acquitted accused were unknown to PW1 and PW2 (Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, referred); (iv) the concurrent findings were neither clearly illegal nor manifestly erroneous; no interference under Article 136. Siri Kishan (2009) 12 SCC 757 and Mummidi Hemadri (2007) 13 SCC 496 were cited by the appellants' counsel.
