Manoj @ Manu S/o Kumaran Thampi v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939** **CRL.A.No. 37 of 2013** **AGAINST THE ORDER/JUDGMENT IN SC 55/2012 of II ADDL.S.C.,THIRUVANANTHAPURAM DATED 26-11-2012** **APPELLANT/ACCUSED NO.3** **MANOJ @ MANU S/O KUMARAN THAMPI, THEJAS VEEDU, KARA/74, TC.6/293 KARIMANKULAM, VATTIYOORKAVU VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SMT.M.M.DEEPA SRI.P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **R1 BY SR. PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2018, ALONG WITH CRL.APPEAL NOS. 38 AND 160/2013,THE COURT ON 19-02-2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & ANNIE JOHN, JJ.** ======================== Crl.Appeal Nos.37, 38 and 160/2013 ======================= Dated this, the 19[th] day of February, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals are filed by accused 1 to 3 in SC No.55/2012 by which all the accused were convicted and sentenced to undergo imprisonment for life for offence u/s 302, r/w S.34 of I.P.C. The first accused is sentenced to pay a fine of `50,000/- and accused 2 and 3 `25,000/- each. On failure to pay fine amount, the accused were to suffer simple imprisonment for four months. The accused are also found guilty and sentenced to undergo imprisonment for one month for the offence u/s 341 of I.P.C. which was to run concurrently along with the sentence for the offence u/s 302. 2. The prosecution allege that the accused with the common intention of committing murder of Rajesh Krishnan (deceased) obstructed him while he was driving his motorcycle. The accused persons also came in another motorcycle driven by the 3[rd] Crl.Appeal Nos.37, 38 and 160/2013 -:2:- accused, accused 1 and 2 being pillion riders. The accused demanded money from the victim. When he refused to pay the money, it is alleged that the accused caused grievous hurt to the victim. Accused 1 and 2 kicked down the victim from his motorbike. The 3[rd] accused slapped him on his face. The 2[nd] accused fisted him on his back and the first accused stabbed him on his stomach with a knife causing fatal injury. Thereafter, accused 2 and 3 lifted the motor cycle of the victim and it was forcefully thrown to the ground. The victim himself proceeded in an autorickshaw to the hospital and on the way, it had a break down. Somebody called an ambulance and he was taken to the Medical College hospital. Before he reached the hospital, he died. 3. To prove the prosecution case, they examined PW1 to PW31 and marked Exts.P1 to P37. MO1 to MO20 were the material objects which were identified. 4. The Court below having placed reliance upon the evidence of an eye witness PW2 came to a finding that the prosecution had proved beyond reasonable doubt the crime of murder. The evidence of PW2 was corroborated by the scientific Crl.Appeal Nos.37, 38 and 160/2013 -:3:- evidence viz., the blood stained clothes of the accused and the blood stains in MO3 knife, which was the murder weapon. MO3 knife was recovered based on a disclosure statement of the first accused. The Doctor who conducted postmortem reported that the single injury in the abdomen of the deceased was the cause of death. It is also found that though first accused alone had inflicted a stab injury on the deceased, which was the cause of death, accused 2 and 3 had the common intention of committing the murder and therefore they are also responsible for the crime and found to be guilty. 5. Learned senior counsel appearing for the appellants, accused 1 and 3, argued that there is substantial infirmity in the evidence adduced by the prosecution. Most of the witnesses had turned hostile and the prosecution was able to adduce evidence of a sole eye witness which is not corroborated by any other proven fact. It is argued that there is delay in registering the First Information Report, the third accused has not been properly identified and the prosecution could not conduct any Test Identification Parade. As far as the third accused is concerned, Crl.Appeal Nos.37, 38 and 160/2013 -:4:- PW2 had no previous acquaintance with him and he could not mention any identifying features. He was shown by the police in the police station and therefore the identification of the third accused itself is not proved. He placed reliance upon judgment of the Apex Court in _**Mohanlal Gangaram Gehani v. State of Maharashtra**_ (AIR 1982 SC 839). In that case, the Apex Court observed that when the witness admits that he did not know the accused before the occurrence and when the accused was shown to him by the police at the police station, in the absence of conducting a Test Identification Parade to test the power of identification of the witness, evidence of such witness becomes absolutely valueless on the question of identification before Court and in which event the appellant is entitled for acquittal. He also relied upon another judgment in _**Ganpat Singh and Others v. State of Rajasthan**_ [(1997) 11 SCC 565] wherein a similar view was taken by the Apex Court. 6. He also argued that the Court below completely erred in arriving at a conclusion that the first accused had committed the crime. The argument is two fold. One is that evidence is lacking to Crl.Appeal Nos.37, 38 and 160/2013 -:5:- convict the first accused and assuming that there is evidence, the offence will come only under 304 Part II. It is pointed out that PW24, the Doctor who conducted postmortem had not stated that the injury on the deceased was likely to cause death in the ordinary course. There was only one stab injury. In the absence of any evidence that the said injury was sufficient in the ordinary course to cause death, the accused could not have been punished u/s 302 I.P.C. Learned counsel placed reliance upon judgment of a Division Bench of this Court in _**Ouseph v. State of Kerala**_ (1983 KLT SN 69) in order to emphasise the point that it is for the prosecution to prove that the injury sustained by the victim is sufficient in the ordinary course of nature to cause death. The report of the Doctor by itself is not a substantive piece of evidence and only the oral testimony can be treated as evidence, which is lacking in the deposition of PW24. 7. Yet another argument raised was that the prosecution was attempting to prove the character of the accused by picturising them as goondas for which PWs 6 to 11 were examined which is inadmissible in evidence u/s 54 of the Crl.Appeal Nos.37, 38 and 160/2013 -:6:- Evidence Act. However, all those witnesses had turned hostile. He placed reliance upon judgment in _**Ram Lakhan Singh and Others v. State of U.P.**_ [1977 KHC 627 (SC)] to emphasise the argument based on S.54 of the Evidence Act. Learned senior counsel further argued that the evidence of PW25, the Sub Inspector of Police who registered the FIR would show that despite the fact that he received information about the incident at 6.30 p.m, and he had gone to the site and came back at about 7.45 p.m, still, the FIR is prepared only when PW1 had come and given a statement at 8.30 p.m. It is submitted that delay in preparing First Information Report has been deprecated by this Court and reported in _**Raju v. State of Kerala**_ (2018 (1) KLD 80). Delay in filing FIR will result in substantial manipulations to be incorporated in the FI statement and therefore the prosecution case can even be thrown out on that ground. 8. Finally it was argued by the learned senior counsel that, at any rate, there is no material to indicate that there was a common intention among the accused to commit murder. The reason for commission of the offence is not spoken to by any Crl.Appeal Nos.37, 38 and 160/2013 -:7:- witnesses. That apart, in the 313 questioning, none of the incriminating circumstances had been put to the accused enabling them to explain the matter. It is submitted that the only overt act committed by accused 2 and 3 according to the prosecution was the third accused slapping the deceased and the second accused hitting him on his back. There is no other injury on the body of the victim as per the postmortem certificate and as per the evidence of Doctor who conducted postmortem. Merely for the reason that all of them together came in a motor bike and the victim fell down while he was in his bike does not indicate that 3[rd] accused also had the common intention to inflict any stab injury on the deceased. Even according to PW2, it was the first accused who had stabbed the deceased. It cannot be said that the other accused had any common intention to commit the said act of murder. Accused 2 and 3 do not have any weapon with them and there is no such case for the prosecution as well. He also relied upon the judgment of the Apex Court reported in _**State of U.P. v. Jamshed and another**_ [1994 Suppl (1) SCC 610] and _**Ajay Sharma v. State of Rajasthan**_ [(1999) 1 SCC Crl.Appeal Nos.37, 38 and 160/2013 -:8:- 174]. In _**Jamshed**_ (supra), the Apex Court held that in an incident where one person causes a fatal injury by firing with a countrymade pistol and the other accused caused only a simple injury with a sharp edged weapon, which did not contribute in any manner to the death of victim, it was not safe to convict the person who had caused only a simple injury u/s 302 read with S.34 I.P.C. as he cannot be held to have shared the common intention to commit murder. At best, he could be convicted only for his individual act namely u/s 324. In _**Ajay Sharma**_ (supra) also, the Apex Court held that in an instance where one of the accused caught hold of the deceased and called upon the other accused to strike him, the other accused immediately took out a kirpan from under his stockings and inflicted two-three blows resulting in the instantaneous death of the deceased, the intention of the appellant/accused was only to strike him and he did not have an intention to commit murder. In that circumstance, it was held that the conviction of the said accused u/s 302 r/w 34 was not sustainable. He was only liable to be convicted u/s 324 I.P.C r/w 110 I.P.C. Crl.Appeal Nos.37, 38 and 160/2013 -:9:- 9. Yet another judgment relied upon is _**Sunita Sharma v. State of Delhi**_ [(2016) 15 SCC 551]. That was also a case in which the Apex Court observed that the act of stabbing by the accused leading to death while the other accused was holding the deceased does not appear to be premeditated or to have been committed in concert. That was a case in which the accused were husband and wife. They caught hold of a boy who was the brother of a person who eve-teased their daughter. The mother of the girl who is an accused, caught hold of the hair of the deceased and held him back and hit him on his head with an iron musli while her husband inflicted a chhuri-blow on the front portion of the body. Apex Court found that the prosecution story that the lady could hold back a 25 year old person by clinging to his hair with one arm and holding a musli (a sharp-edged blunt iron weapon) and using the same on the deceased with the other hand cannot be believed and is doubtful and therefore, held that the common intention as required u/s 34 I.P.C. to commit the offence of murder with her husband does not appear to have been established beyond reasonable doubt. Crl.Appeal Nos.37, 38 and 160/2013 -:10:- 10. Learned counsel Sri.Renjith B.Marar appearing for the 2[nd] accused while concurring with the arguments raised on behalf of accused 1 and 3 contended that the only overt act he had committed even according to the prosecution was only fisting the deceased on his back. In fact, no injuries were noticed. He did not have the common intention to commit murder. The fact that immediately after the stabbing, they left the place also indicates that they never wanted to stab the deceased and there was no such premeditation or common intention. The first accused was having a knife in his waist which he suddenly took and stabbed the deceased. The said incident by itself proves the fact that there is no common intention and therefore the 2[nd] accused was entitled for an acquittal. 11. On the other hand, learned Public Prosecutor submits that the Court below had considered the entire case in the proper perspective. The Court below had properly analysed the evidence adduced in the case and had relied upon the oral testimony of eye witness and other attending circumstances to find the guilt of the accused. It is submitted that the accused had committed a very Crl.Appeal Nos.37, 38 and 160/2013 -:11:- heinous crime and an young man who was riding in his motor bike was stopped in between and stabbed to death. All the three accused were travelling in the same motor bike. It is submitted that, on the very same day, they had attacked several other persons and therefore their conduct prior to the commission of the crime itself was relevant u/s 8 of the Evidence Act and the prosecution was only attempting to prove their prior conduct by examining PW6 to PW11. Unfortunately, all those witnesses turned hostile to the prosecution. It is submitted that without much reason, an young person was stabbed to death. The prosecution had established beyond reasonable doubt the involvement of all the accused. The fact that they came together, they kicked down the deceased from his motor bike, accused 2 and 3 hit him and the first accused stabbed him with a knife was the incident which has been proved. Thereafter, two of them took the motorbike and threw it to the ground. This itself shows the vengeance of all the accused against the deceased and when the Court below had not committed any error in appreciating the evidence involved in the case, in the absence of any perversity, Crl.Appeal Nos.37, 38 and 160/2013 ## -:12:- this Court need not interfere with the judgment. 12. Learned Public Prosecutor also placed reliance upon the judgment of the Apex Court in _**Goudappa and others v. State of Karnataka**_ (AIR 2013 SC 1595). The judgment has been relied upon to prove as to how the common intention among the accused has to be considered. Paragraph 16 is relevant, which reads as under:- _**“16** . xxxxxx Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the Indian Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Indian Penal Code thus lays down a principle of joint criminal liability which_ Crl.Appeal Nos.37, 38 and 160/2013 ## -:13:- _is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act share, that common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature and injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.”_ 13. To counter the argument that the offence would only come under S.304 Part II of I.P.C., learned Public Prosecutor placed reliance upon the landmark judgment in _**Virsa Singh v. State of Punjab**_ (AIR 1958 SC 465). It was held that to bring a case u/s 300, “thirdly”, the prosecution has to establish the following facts:- (1) it must establish, quite objectively, that a bodily injury is present (2) the nature of injury must be proved (3) Crl.Appeal Nos.37, 38 and 160/2013 -:14:- it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was inflicted. It is held that if all these three elements are proved to be present, the enquiry has to proceed further and it must be proved that the injury of the type described which is made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. It is further held that the said part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. The Apex Court further held that once those four elements are established by the prosecution, the offence is murder u/s 300 “thirdly” and it does not matter that there was no intention to cause death and it does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature. It does not even matter that there is no knowledge that an act of that kind is likely to cause death. It is further held that no one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not Crl.Appeal Nos.37, 38 and 160/2013 -:15:- guilty of murder. If they inflict injuries of that kind, they must face the consequences and they can only escape if it can be shown or reasonably deduced that the injury was accidental or otherwise unintentional. 14. Having regard to the aforesaid arguments, primarily it has to be considered whether the prosecution has proved the offence against the accused beyond reasonable doubt. The First Information Statement was given by PW1 who has no direct knowledge about the incident. Ext.P1 is the FI statement given by PW1 at 8.15 p.m on 31/5/2011. It was recorded by PW25 and Ext.P1(a) is the FIR. FIR was registered on 31/5/2011 at 8.15 hrs on the basis of statement of PW1. The incident happened at 6.00 p.m on the said day. PW25 states that on the date when he registered the FIR, he came to know about the incident at 6.00 p.m. He knew that about 3 persons had inflicted injury on a person. He reached the scene of occurrence at 6.30. He posted two constables for scene guard. He enquired as to what happened to the injured and he got information that he was taken in an ambulance to Medical College hospital. But he died thereafter. He Crl.Appeal Nos.37, 38 and 160/2013 -:16:- knew about it when he was in the scene itself. But he does not remember the exact time. He came back to the station at 7.45. It is stated that the FIR was registered based on the FI statement given by PW1. When a pointed question was put to him that being a grave offence he was bound to register the case and conduct investigation immediately, his answer was that though he was bound to register the case, being a grave crime, it has to be investigated by the Circle Inspector. He also admits that in the FIR only the name of the first accused is mentioned and as far as the others are concerned, PW1 could not give any details. 15. It is settled law that registering of First Information Report in a cognizable offence is very important in a criminal investigation. In _**Lalita kumari v. Government of Uttar Pradesh**_ (AIR 2014 SC 187), the Apex Court had occasion to consider the registration of FIRs. It was held that the Code of Criminal Procedure contemplates two kinds of FIRs. The duly signed FIR u/s 154(1) is by the informant to the concerned police officer at the police station. The second kind of FIR could be which is registered by the Police officer on any information received or Crl.Appeal Nos.37, 38 and 160/2013 -:17:- other than by way of an informant u/s 157(1) and even the said information has to be duly recorded and has to be sent to the Magistrate forthwith. The purpose of sending a report to the concerned Magistrate is to keep the Magistrate informed of the investigation of a cognizable offence so that the Magistrate may be able to control the investigation and if required, to issue appropriate directions. However, it is settled law that mere delay in despatch of FIR itself is not a ground to throw away the prosecution case in its entirety. The delay in registering the First Information Report gives rise to an attempt of manipulation of the factual situation. That is the sole reason for the statute indicating that an FIR has to be registered immediately. 16. In the case on hand, the Station House Officer ought to have registered FIR immediately on receipt of the information in terms of S.157(1) of Cr.P.C., rather than waiting for a statement by PW1. At any rate, the question to be considered is whether delay in registering the FIR had caused any prejudice to the accused. 17. Therefore, before arriving at a final decision regarding Crl.Appeal Nos.37, 38 and 160/2013 -:18:- delay in registering the FIR, it is worthwhile to scan the evidence adduced by the prosecution. 18. As already indicated, PW1 is the uncle of deceased Rajesh. He received information from the brother of Rajesh regarding the injury sustained by Rajesh and that he was taken to Medical College hospital. He along with his younger son proceeded to Medical College hospital. It was about 7.00 p.m. Doctor informed that Rajesh had died. He went inside and saw that Rajesh had a stab injury in his abdomen and there was blood in the wound. His body was moved to the mortuary. Thereafter, he had gone to the police station and gave Ext.P1 FI statement. 19. PW2 is the eye witness to the incident. He is a daily worker. According to him, the incident happened on 31/5/2011. When he was about to reach a place by name Maruthamcode, he saw a person coming in a motor bike from the side of Keltron. Three persons were coming from the side of Maruthamcode in a motorbike. The said three persons cornered the person who was alone in his bike. They were having a talk. In the meantime, two persons got down from the bike and pushed down the other Crl.Appeal Nos.37, 38 and 160/2013 -:19:- person who came along with his bike. The person who fell down was the person who got killed. He stood up and out of the three persons, a person who was of medium height slapped the deceased on his face. A person who was not having much height hit him on his back. Deceased cried aloud. Immediately, the tallest among the three took a knife from his waist and stabbed him on his stomach. He stated that he could identify the persons and he identified the person who had stabbed as first accused, the person who slapped him on his face as the third accused and the person who hit him on his back as the second accused. The person who suffered injury was crying aloud to help him, holding on to his stomach. An autorickshaw came from the side of Keltron and it slowed down. The injured got into the autorickshaw and proceeded towards Maruthamcode. He further deposed that persons who were not tall as the other one lifted the motorbike of the injured and threw it hard onto the ground. Thereafter, they got into a motorbike bearing No.BB 5519 and proceeded towards Keltron side. The auto in which the injured got in was seen near the waiting side of the bus stop. Injured was also inside the auto. Crl.Appeal Nos.37, 38 and 160/2013 -:20:- People assembled around. Somebody was calling for another vehicle. PW2 says that he thereafter went home. The incident happened at about 6.30 p.m. Next day morning, when he went to the road, he was told that the injured had died. He got information that on the same day, the accused were demanding money from the people in the locality and they were hitting those who did not give money with a helmet. He deposed that he could identify the dress and the knife. He identified MO1 jeans which the 3[rd] accused was wearing and MO2 T-shirt which the first accused was wearing. He also identified MO3, the knife. He had also given a statement before the Magistrate u/s 164 Cr.P.C which is marked as Ext.P3. Though PW2 was cross examined at length by the counsel appearing for the accused, nothing has been brought out to discredit the said witness. PW2 is a natural witness who had seen the incident and therefore his evidence assumes importance. He has clearly stated as to how the incident had happened. 20. PW4 is an autorickshaw driver. He deposed that on a particular day, the date of which he does not remember, a person Crl.Appeal Nos.37, 38 and 160/2013 -:21:- got into his autorickshaw at Maruthamcode junction. He got into the auto when he slowed down the vehicle to avoid a lorry which was coming from opposite direction. He informed that somebody had stabbed him and that he should be taken to the hospital. He suddenly turned the vehicle. When he turned the vehicle, it fell into a ditch and the engine went off. People in the locality told him that they would call an ambulance. Accordingly, 108 ambulance was called and he was taken in the said ambulance. When he entered the auto, blood was oozing. He produced the autorickshaw before the Nedumangad police station and it was released to him. He came to know that the person who got into his auto died. He also stated that the first accused is his distant relative. He does not enquire as to how the incident happened. In re examination he stated that the incident happened at about 6.30-7.00. 21. PW5 to PW12 had turned hostile. PW13 is an attestor to the inquest report Ext.P6. PW14 is a landlord of the building in which deceased was residing at the relevant time. PW15 is an attestor to Ext.P7 mahazar by which MO4 pant was seized. PW16 Crl.Appeal Nos.37, 38 and 160/2013 -:22:- is an attestor to Ext.P8 mahazar by which MO1 pant and MO2 T- shirt were recovered. PW17 is an attestor to Ext.P9 scene mahazar. PW18 is an attestor to Ext.P10 recovery mahazar. However, he denied the fact that Ext.P10 mahazar relates to recovery of vehicle KL-01-BB 5519 from the house of Usha, his sister. PW19 is a witness to Ext.P11 mahazar by which MO3 knife was recovered. He deposed that he saw the police party along with the first accused. First accused wast taken to the plantation of one Thankappan. First accused took a steel knife which was kept in between the dry leaves of a plantain. It was given to the police. He knew the first accused and he was identified. He also identified MO3 knife. PW20 is a witness to mahazar Ext.P12 by which the autorickshaw belonging to PW4 was verified by the police. PW23 is the Magistrate who recorded statement u/s 164 Cr.P.C of PW2, PW6 and PW8. PW24 is the Doctor who conducted postmortem and Ext.P16 is the report. Following were the antemortem injuries noted by the Doctor:- _“Incised penetrating wound 2.3x0.8 cm vertical on the left side of front of abdomen, the upper rounded end just to left of midline and 23.5 cm below collar_ Crl.Appeal Nos.37, 38 and 160/2013 ## -:23:- _bone. Its lower end sharply cut. The abdominal cavity was seen penetrated., the superior mesenteric vessels, and left renal vessels cleanly cut and back wall of aorta (1.3x0.3cm) punctured. Perirenal haematoma 3.7cm thick was seen around both kidneys. The wound was directed downwards, backwards and to the left for a total minimum depth of 6.9 cm. Small blood clots were seen sticking to the omentum. Peritoneal cavity contained 250 ml of fluid blood and 180 gm of clot._ _Brain was pale. Air passages congested and contained mucoid fluid. Lungs pale. Spleen shrunken. Stomach contained a handful of unidentifiable food particles having no unusual smell, mucosa normal. Urinary bladder empty, mucosa normal. All other internal organs were pale otherwise normal. ”_ According to her, the cause of death was due to penetrating injury sustained to the abdomen. She also opined that the injury sustained to the victim can be caused by MO3 knife. PW28 and PW29 are the Scientific Assistants who proved Exts.P19 and P19(a) reports. From Exts.P19 and P19(a), it is evident that MO3 knife, MO1, MO2 and MO4 dresses which the accused were wearing at the relevant time contained human blood. PW31 is the investigating officer who had completed the investigation and filed final report. Crl.Appeal Nos.37, 38 and 160/2013 -:24:- 22. From the evidence on record, it is rather clear that as far as the cause of death of the deceased is concerned, he suffered a stab injury. Though he was taken to the hospital, he died even before any treatment being given to him. The first question to be considered is regarding the cause of death. As already mentioned, the Doctor as PW24 has stated that the penetrating injury on the abdomen was the cause of death. Learned counsel for the appellants argued that there was no evidence to prove that the said injury was sufficient or likely to cause death and the Doctor has not stated so in his evidence. But it could be seen from the evidence of PW24 that she had clearly stated about the antemortem injuries. It was a penetrating wound of 2.3 cms vertical on the left side of the front of abdomen. The abdominal cavity was seen penetrated and the superior mesenteric vessels and left renal vessels were cleanly cut and the back wall of aorta was punctured. Perirenal haematoma 3.7 cm thick was seen around both the kidneys. The wound was directed downwards, backwards and to the left for a total minimum depth of 6.9 cm. The peritoneal cavity also contained 250 ml of fluid blood and 180 Crl.Appeal Nos.37, 38 and 160/2013 -:25:- gms of clot. When the Doctor opined that this penetrating injury sustained to the abdomen is the cause of death, there is no doubt to infer that such an injury is not likely to cause death. The fact that the injured died before he reached the hospital itself will prove the said fact that the said injury was likely to cause death. Nothing more is required. Therefore, there cannot be any doubt regarding the fact that the offence clearly comes under S.300 I.P.C. As already mentioned, in the judgment in _**Virsa Singh**_ (supra) which has been followed by the Apex Court in a large number of decisions, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or if it is done with the intention of causing such bodily injury as the offendor knows to be likely to cause death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and fourthly if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause Crl.Appeal Nos.37, 38 and 160/2013 -:26:- death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. In the case on hand, the argument raised was that Doctor's evidence does not indicate that the bodily injury caused to the victim is sufficient in the ordinary course of nature to cause death. As held in _**Virsa Singh**_ (supra), it is not for the accused to form an opinion that the bodily injury was not sufficient in the ordinary course of nature to cause death whereas it is the evidence that should lead the Court to arrive at such a conclusion. The evidence in this case is that a person was stabbed on the road. He got into an autorickshaw which had a break down. Thereafter, people in the locality called an ambulance and he was taken to the hospital. By the time he reached the hospital, he was dead. The death had occurred a few hours after the stab. The victim was not in a position to speak anything. The organs in the peritoneal cavity and the blood vessels were cut. Such injuries in the normal circumstances are enough to cause death. When an injury penetrates into the vital parts of the body, definitely it becomes an act amounting to culpable homicide amounting to murder. Crl.Appeal Nos.37, 38 and 160/2013 -:27:- 23. When PW2's evidence is accepted, coupled with the recovery of MO3 knife and the fact that there were blood stains in MO3 knife as well as in the dress which accused 1 and 3 were wearing at the relevant time, proves the involvement of all the accused in the crime. 24. The next question to be considered is whether A2 and A3 can be roped in for the punishment u/s 302 I.P.C. invoking S.34 I.P.C. 25. The three ingredients which should guide the Court in determining whether an accused is liable to be convicted with the aid of S.34 are (i) that the criminal act is done by several persons (ii) such act is done with furtherance of common intention of all the accused and, in which event (iii) each of such persons becomes liable for that act in the same manner as if it were done by him alone. Therefore, the main ingredients which are required to be proved to invoke S.34 or to convict an accused with the aid of S.34 is proof of the fact that the said act is done in furtherance of the common intention of all. In other words, all the accused should have the intention to cause the injury to the victim which Crl.Appeal Nos.37, 38 and 160/2013 -:28:- in the ordinary course is likely to cause death. The Section of course does not envisage a separate act by all of the accused persons for becoming responsible for the ultimate criminal act as held in _**Syed Yousuf Hussain v. State of Andhra Pradesh**_ (AIR 2013 SC 1677). Of course, direct evidence on the formation of common intention may not be easily available and forthcoming. However, it is for the Courts to infer common intention based on the set of facts which had been proved in the case. The inference of common intention should be irresistible. In _**Badruddin v. State of UP**_ (AIR 1998 SC 3243), it was held that though establishing common intention is a difficult task for the prosecution, yet, however difficult it may be, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of all the assailants to commit the offence, be it either pre-arranged or on the spur of the moment, but it must necessarily be before the commission of crime. It was further held that if a direct evidence is not available, it has to be inferred from circumstantial evidence. In the case on hand, the assailants, three of them were travelling in a motor Crl.Appeal Nos.37, 38 and 160/2013 -:29:- bike. They come across the deceased on the road. They cornered him. The deceased had to stop his motor bike. PW2 says that there was some conversation between them. Suddenly two persons sitting in the bike of the assailants got down and pushed the accused along with his bike on to the road. The third accused only slapped him. Second accused hit him on his shoulder. Immediately first accused took a knife from his waist and inflicted a stab injury. He also mentioned that accused 2 and 3 took the motorbike and threw it down. Thereafter they immediately left the place. The deceased thereafter got into an autorickshaw and subsequently he died. Though the prosecution attempted to prove that the accused had committed various offences _en route_ , there is no evidence for the same. There is no evidence to prove any previous acquaintance or any transaction between the accused and the deceased. According to the prosecution, there was a demand for money, for which the deceased did not comply. When we look at the overt act made by accused 2 and 3, they had no intention to commit murder. They were not armed. There was no injury of any form inflicted by accused 2 and 3 on the victim. Crl.Appeal Nos.37, 38 and 160/2013 -:30:- Therefore, even if they had hit him, it was not hard enough to cause any form of injury or even bruises. The only injury seen is the stab injury which was a penetrating wound. Under what circumstances the first accused had committed the said act is not known. Whether accused 2 and 3 also entertained an intention to commit murder, cannot be discerned from the facts of the case. The fact that they were together with A1 by itself may not suffice to hold that they entertained a common intention. If so, the prosecution ought to have proved that they had some previous enmity with the deceased or a clear motive to commit murder. It might be an instance where after talking to the deceased, the first accused who had a weapon kept in his waist had stabbed him. That the first accused had the intention to stab him and cause such injury may not be contemplated by accused 2 and 3. 26. The fact that the accused were goondas (for which there is no proof) by itself will not amount to the accused having a common intention to commit a crime of murder. S.38 of I.P.C. reads as under:- _“38. Persons concerned in criminal act may be guilty of different offences.—Where several persons are engaged_ Crl.Appeal Nos.37, 38 and 160/2013 ## -:31:- _or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Illustration A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty only of culpable homicide.”_ The provision indicates that persons engaged in commission of one act may be guilty of different offences owing to the difference in their intentions. In _**Bhaba Nanda v. State of Assam**_ [(1977) 4 SCC 396], three accused assaulted the deceased, but only two used their weapons in a determined manner which clearly showed the common intention to kill the deceased. The third accused had a _lathi_ , but he did not cause any injury to the victim. It was held that two were liable to be convicted under 302 r/w S.34 I.P.C. and third accused was only liable under Section 304 Part II read with S.38 I.P.C. as he did not have the intention to kill him. Similarly in _**Mano Dutt v. State of UP**_ [(2012) 4 SCC 79], three persons who were brothers including the deceased were chased by certain accused. One accused cried out that the brothers should not Crl.Appeal Nos.37, 38 and 160/2013 -:32:- escape and another accused B caught hold of the victim who on receiving blows from the other accused persons fell down and died. It was held that B did not share the common intention and applying the principle of law u/s 38 I.P.C., the case of B was separated from the other two accused and he was found guilty only u/s 304 Part II as he had intentionally joined in the commission of an act with the knowledge that the assault on the deceased was likely to result in his death. 27. The question to be considered is whether accused 2 and 3 had the intention to inflict a stab injury, which was likely to cause death on the deceased though they did not entertain an intention that the first accused may inflict an injury which may amount to culpable homicide amounting to murder. 28. The fact that all of them together cornered the deceased proves a common intention of assault. As rightly pointed out by learned counsel appearing for accused 2 and 3, accused 2 and 3 probably did not think that the act committed by first accused would amount to culpable homicide amounting to murder in which event, they become liable for punishment u/s 304 Part II. Crl.Appeal Nos.37, 38 and 160/2013 -:33:- 29. The facts being so, coming to the first question regarding delay in registering the FIR, we do not think that any serious prejudice had been caused to the accused on account of the Station House Officer not registering FIR u/s 157(1) of Cr.P.C. He had rushed to the scene, enquired about the matter and after he came back, PW1 came and a statement was recorded. It was promptly sent to the learned Magistrate next day morning which reached the Magistrate at 10.30 am. Therefore, there is no reason why any embellishments had occurred in the process in order to implicate the accused in a case which rests upon the evidence of eye witness which is corroborated by the scientific and medical evidence available in the case. When PW2's version stands creditworthy, the crime stands proved. It becomes a case of culpable homicide amounting to murder. But, looking at the evidence available in the case, the intention of accused 2 and 3 to have a common intention of committing murder cannot be discerned. They are liable for the offence u/s 304 Part II. Taking into account all these facts, these appeals are disposed of as under:- Crl.Appeal Nos.37, 38 and 160/2013 -:34:- (i) The conviction and sentence of the first accused/appellant in Crl.Appeal No.160/13 u/s 302 I.P.C. is hereby confirmed. (ii) Conviction and sentence of accused 2 and 3, appellants in Crl.Appeal Nos.37 and 38/2013 u/s 302 I.P.C. is set aside. A2 and A3 are convicted and sentenced for the offence u/s 304 Part II. As they are already suffering imprisonment since the date of custody, i.e., A2 from 26/6/2011 and A3 from 5/6/2011, the period of imprisonment including the pre-trial detention shall be sufficient punishment for the said crime and A2 and A3 shall be released from prison forthwith, if their presence is not required in any other case. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **ANNIE JOHN, JUDGE** Rp //True Copy// PS to Judge