State of Kerala v. Peter S/O Ulahannan, Stephen S/O Ulahannan, Johnny S/O Ulahannan and Mary @ Penni D/O Ulahannan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** **CRL.A NO. 1213 OF 2006** **AGAINST THE JUDGMENT DATED 26-06-2006 IN SC 31/2006 ADDITIONAL DISTRICT AND SESSIONS COURT FAST TRACK (AD-HOC)-II, KOTTAYAM** ## **APPELLANTS/ACCUSED 1 TO 4:** 1 PETER S/O.ULAHANNAN, KALARICKAL HOUSE, THIRUVELICKEL JUNCTION BHAGOM, PADINJATTINKARA, PULIYANNOOR VILLAGE. 2 STEPHEN, S/O. ULAHANNAN, KALARICKEL HOUSE, THIRUVELICKEL JUNCTION BHAGOM,, PADINJATTINKARA, PULIYANNOOR VILLAGE. 3 JOHNNY, S/O. ULAHANNAN, KALARICKEL HOUSE, THIRUVELICKEL JUNCTION BHAGOM, PADINJATTINKARA, PULIYANNOOR VILLAGE. 4 MARY @ PENNI, D/O. ULAHANNAN, KALARICKAL HOUSE, THIRUVELICKEL JUNCTION BHAGOM, PADINJATTINKARA, PULIYANNOOR VILLAGE. BY ADVS. SRI.K.A.JALEEL SRI.C.ANILKUMAR KALLESSERIL SRI.N.K.POULOSEKUTTY ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA (REP. BY THE CIRCLE INSPECTOR OF POLICE, PALA - CRIME NO.76/2004 OF KIDANGOOR POLICE STATION), REPRESENTED BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. SANGEETHARAJ, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. Appeal No.1213/2006 -2- ## **J U D G M E N T** This appeal has been filed challenging the conviction and sentence imposed on the appellants who are accused 1 to 4 in S.C. 31/2006 on the file of the Additional District and Sessions Judge Fast Track (Ad-hoc)-II, Kottayam in a prosecution alleging the commission of offences under Sections 450, 506 (ii) & 304 read with Section 34 of the Indian Penal Code. Pending this appeal, on 3003-2016, the 1[st] appellant died. Therefore this appeal is confined to the question as to whether the conviction and sentence imposed on appellants 2 to 4 (accused Nos. 2 to 4) is legal and proper. The appellants are hereinafter referred to according to the rank assigned to them in the array of accused. 2. The prosecution case, in brief, is that on 31-05-2004, at about 8.30 P.M, the accused who are brothers and sister had trespassed into the house of one Rajappan and that the 1[st] accused had inflicted a blow on the head of Rajappan with the blunt side of a chopper. Rajappan died the same day. However, according to the post mortem report, he died not on account of the injury caused but on account of the severity of heart disease. The incident unfolded in the following manner - at about 7.15 p.m on 31-05-2004, while Rajappan, his son Vinod (PW1), Vinod's wife Sheeba (PW2) and Rajappan’s wife were in their house, they heard a loud noise. Rajappan and Vinod went outside and found that a big rubber tree standing in the property of the accused had Crl. Appeal No.1213/2006 -3- fallen onto a bathroom situated behind their house. The 1st accused had also come there to see what had happened. There occurred a tussle between the 1[st] accused and Rajappan on account of Rajappan's demand that all rubber trees which may cause a threat to his house must be cut and removed. The 1st accused told PW1 that it is not the rubber trees but the neck of PW1 that he intends to cut. The first accused had caught hold of Rajappan by his neck and it is also alleged that at the intervention of Vinod (PW1) and a neighbour (NakulanPW3), the 1[st] accused went back to his house. Later by around 8.30 p.m the 1[st] accused together with his brothers - Stephen (the 2[nd] accused) and Johnny (the 3[rd] accused) and their sister Mary @ Penni (the 4th accused) again came to the house of Rajappan, armed with deadly weapons and started hurling obscenities against Rajappan and his family. It is alleged that the 1[st] accused jumped on to the sit out of the house of Rajappan with a chopper in his hand and while Rajappan had turned to go inside his house, the 1st accused hit him with the blunt side of the chopper causing an injury on the left upper part of his head and Rajappan fell down as a result of this blow. Though PW2 and his family members tried to revive Rajappan, he was unconscious and along with neighbours (PW’s 3 & 4) and one Kunjachan and one Boban PW2 had taken his father Rajappan to the hospital and then it was learnt that Rajappan was no more. A crime was registered. Though the crime was registered including Crl. Appeal No.1213/2006 -4- Section 302 IPC, instead of Section 304 IPC, the case was treated as one under Section 304 IPC following the post mortem report which showed that the cause of the death of Rajappan was heart disease. 3. Following an investigation of the case, a charge sheet was filed before the Judicial First Class Magistrate Court, Ettumanoor from where it was committed to the Sessions Court and then made over to Additional District and Sessions Judge Fast Track (Ad-hoc) -II, Kottayam for the purposes of trial and disposal. Charges were framed by that court under Sections 450, 506 (Part-ii) and 304 read with Section 34 of IPC. On the accused pleading not guilty, the prosecution led evidence by examining PWs 1 to 13 marking Ext.P1 to P7 documents and identifying M.Os 1 to 3. On the closure of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all incriminating material appearing against them and stated that they were innocent and that the case has been falsely foisted upon them. Finding no reason to acquit the accused at that stage, the accused were called upon to enter defence evidence. However, no defence evidence was tendered. On an appreciation of the evidence and after hearing the Prosecutor and the counsel for the accused, the trial court convicted all the accused under Sections 450, 506 (ii) and 304 read with Section 34 of IPC. After hearing the accused on the question of sentence, the trial court convicted the 1[st] accused to undergo rigorous imprisonment for 7 Crl. Appeal No.1213/2006 -5- years under Section 304 IPC and accused 2 to 4 to rigorous imprisonment for 5 years for the same offence. For the offences under Sections 450 and 506 (ii) of the IPC all the accused were sentenced to undergo rigorous imprisonment for 2 years and 6 months each. The substantive sentences were directed to run concurrently. Set off as permissible in law was granted to A1 & A4. 4. I have heard Sri. K.A. Jaleel, learned counsel appearing for the appellants and Sri. Sangeeth Raj, learned Public Prosecutor appearing for the prosecution. 5. The learned counsel appearing for the appellant would submit that even if the entire prosecution case was accepted as true, appellants 2 to 4 could not have been convicted as the evidence is consistent in that the injury on the deceased Rajappan was caused only by the 1[st] accused. He submits that the deceased Rajappan was earlier an employee of the accused. He contends that though the police came to Rajappan's house at around 10 p.m. and recorded a statement from PW2 (wife of PW1) the crime was registered on the basis of a cooked up First Information Statement given by PW1 in order to establish the prosecution case. He submits that the recovery of MO1, the chopper allegedly used to inflict injury on Rajappan was only on 11-07-2005 and further that the evidence of the investigating officer and that of the independent mahazer witness who is stated to have witnessed the recovery of M.O.1 would show that Crl. Appeal No.1213/2006 -6- the 1[st] accused had not pointed out the place where M.O1 was allegedly hidden. It is submitted that going by principles laid down in _**Golden Satheesan @ Satheesan and others v. State of Kerala;** 2012 KHC 25_ the absence of any statement of the accused No.1 or accused No. 4 that they had concealed the material objects the court should not lightly infer a recovery under Section 27 of the Evidence Act. It is also submitted that there is no recovery of any material object from accused Nos. 2 & 3, though it is alleged that they too were armed with choppers. He submits that a reference to the charge sheet will show that several notes had been prepared by the investigating officer and that those notes were conveniently suppressed from the court and submits that going by the decisions in _**Baliram Tikaram Marathe and others v. Emperor** ; AIR 1948 Nagpur 1_ and _**In re Natarajan**_ ; _AIR 1967 Madras 426,_ the failure of the prosecution to place those notes on record has caused serious prejudice to the accused in as much as those notes could have been used for the purposes of contradicting the evidence tendered by the prosecution witnesses. He places reliance on the judgment of the Supreme Court in _**Bhagwan Sahai and another v. State of Rajasthan** ; 2016 KHC 6408_ to contend that once the court comes to a conclusion that the prosecution has suppressed the correct genesis and origin of the occurrence the accused will be entitled to the benefit of doubt. He also refers to _**Biju v. State of Kerala;** 2012 (4) KHC 370_ and Crl. Appeal No.1213/2006 -7contends that the prosecution evidence creates suspicion or shadow of doubt on the genesis of the prosecution case. In particular, it is pointed out that the evidence tendered by PWs 1, 2 & 3, in this case, suffer from serious contradictions and therefore there is a shadow of doubt regarding the genesis of the prosecution case. He relies on the judgment of Allahabad High Court in _**Gajey Singh and another v. State of U.P;** 2001 KHC 2411_ to contend that where the prosecution witness had made several vital and important developments at the trial different from the version as was seen from the statement given at the stage of the investigation, it could be said that the prosecution had suppressed the genesis and origin of the incident. He has placed reliance on the judgment of the Supreme Court in _**Uday Singh v. State of Madhya Pradesh;** AIR 2017 SC 393_ to contend that where no specific overt act had been alleged accused 2, 3 & 4, their conviction cannot be sustained. He submits with reference to the judgment of the Supreme Court in _**Prem Narain v. State of Madhya Pradesh;** 2007 (15) SCC 485_ that where different versions had been given in First Information Statement and in the version before the court the accused persons were entitled to be acquitted. He states that in the facts of the present case while the First Information Statement given by PW1 refers to the place of incident as the sit out, in the box PW1 stated that his father had been attacked inside the room and that according to PW2 it was not Crl. Appeal No.1213/2006 -8- neither in the sit out or inside the house but in the compound that her father-inlaw had been attacked. With reference to the judgment of the Division Bench in Madhya Pradesh High Court in _**Raghuveer Singh and others v. State of Madhya Pradesh;** 2018 KHC 5144_ he contends that though the inquest refers to the fact that the deceased Rajappan was bleeding, no attempt was made by the prosecution to send the material objects for scientific examination regarding the blood group of the deceased and to match it with bloodstains, if any, on M.O1 which was allegedly used to attack the deceased. He also submits that the clothes worn by the deceased Rajappan were also not sent for such examination. He also points out that the prosecution also failed to establish the existence of bloodstains inside the house which again is fatal to the prosecution case. He relies on the judgment of the Supreme Court in _**State of Rajasthan v. Babu Meena;** 2013 KHC 4127_ and that of the Gauhati High Court in _**Hanu Baistav v. State of Assam;** 2013 KHC 2147_ to contend that there are 3 categories of witnesses. The 1st category of witnesses are those who are wholly reliable, the 2nd category of witnesses are those who are wholly unreliable and the 3rd category of witnesses are those who are neither wholly reliable nor wholly unreliable. He submits that while the evidence of witnesses falling in the first two categories poses no challenge to the Court either to accept or reject their evidence, in respect of witnesses falling under third category, while the court Crl. Appeal No.1213/2006 -9- may not reject their evidence outright, some form of corroboration is required for the purpose of accepting their evidence. He submits that the witnesses in this case whose testimonies have been relied upon by the trial court to convict the accused fall within the third category and there is absolutely no corroboration of any sort which makes conviction unsustainable. He submits with reference to the Division Bench decision of this court in _**Chandrasekharan Adithiripad v. State of Kerala;** 1987 KHC 1581_ that when the true picture of the incident has not been established by the prosecution and there is clear suppression of materials by the prosecution, the accused was entitled to the benefit of doubt. He also submits that the charge, in this case, describes the place of occurrence to be the sit out while the entire prosecution evidence tends to indicate that the incident occurred inside the house. He, therefore, submits that in the totality of the facts and circumstances the conviction of the accused in this case cannot be sustained. The learned counsel for the appellant also submits that there is no evidence, in this case, to convict the accused either under Section 450 or 506 (ii) of the Indian Penal Code. It is also submitted that there is no proper identification of the accused in the dock. Reliance in this regard is based on the Division Bench of this Court in _**Vayalali Girishan vs. State of Kerala**_ ; 2016 (2) KLT SN 2. Crl. Appeal No.1213/2006 -10- 6. The learned Public Prosecutor on the other hand submits that this is a case where accused nos.2, 3 and 4 have been convicted with the aid of Section 34 of the Indian Penal Code. He states that the manner in which the provisions of Section 34 of the Indian Penal Code will operate is clear from the decision of the Privy Council in _**Barendra Kumar Ghosh v. Emperor;** AIR 1925 PC 1_ . He submits that even if a particular accused had only remained in the proximity of the place where the incident occurred, he or she would be found culpable if the prosecution is able to prove the existence of common intent. Regarding the contention that the statement given by PW2 to the police prior to the statement given by PW1 was suppressed and the statement of PW1 was used as First Information Statement he submits that the evidence, in this case, does not reveal that an earlier statement had been recorded from PW2. He submits that if the defence had a case that there was an earlier statement recorded from PW2, the least that was required was to cross-examine the Investigating Officer on that point. He submits that there is a total failure on the part of the defence to question the Investigating Officer on this point and therefore the submission borders on probabilities. With reference to the evidence of PW10, he submits that the recovery though effected on 11.07.2005 was clearly a recovery under Section 27 of the Evidence Act and that no defect can be pointed out regarding such recovery. He submits that the decisions relied upon the learned counsel for Crl. Appeal No.1213/2006 -11- the appellant to the effect that there was an improper recovery are not applicable in the facts of the present case. Regarding the contention that several notes have been prepared which were suppressed from the court and the defence, it is the submission of the learned Public Prosecutor that there was no question put to the Investigating Officer regarding the existence or otherwise of the notes and therefore the fact that certain notes have been mentioned in the final report, cannot be a ground to hold that the defence was prejudiced in any manner by not supplying copies of those notes. He submits that the facts in _**Baliram Tikaram Marathe**_ (supra) and _**In re Natarajan**_ (supra), on which the reliance is placed by the learned counsel appearing for the appellant are completely different and the principles laid down in those decisions do not apply in the facts of this case. Regarding the contention that the prosecution suppressed the correct genesis and origin of the incident, he submits that the evidence of Pws 1, 2 and 3 are consistent regarding the incident and it cannot be argued that there is any suppression. He submits that there is no merit in the contention that the prosecution witnesses had improved their case in the box. . He submits that this is not a case, where there is any material difference in the version given in the First Information Statement and the evidence tendered by PW1 in the box. There is no contradiction of the nature explained in _**Tahsildar Singh and another v. The State Of Uttar Pradesh;** AIR 1959 SC 1012_ Crl. Appeal No.1213/2006 -12- warranting this Court to conclude that the evidence of PW1 is unreliable. Regarding the contention based on the inquest report, it is submitted that the inquest report by itself is not evidence though the entries therein can be used to contradict a witness. Reliance is placed on the judgment of the Supreme Court in _**Brahm Swaroop v. State of U.P.;** (2011) 6 SCC 288_ for this purpose. It is also contended that the case diary is not evidence in view of the provisions contained in Section 172 of the Code of Criminal Procedure. He also states that the contention raised on the basis of the judgment of the Supreme Court in _**Babu Meena**_ (supra) that of the Gauhati High Court in _**Hanu Baistav**_ (supra) regarding the categories of witnesses in a criminal case do not apply here as the prosecution witnesses, in this case, is wholly reliable and their evidence cannot be discarded. He also submits that the accused is not entitled to any benefit of doubt as the prosecution has succeeded in establishing the guilt of the accused beyond all reasonable doubt. It is also submitted that the evidence, in this case, is sufficient to convict them under Section 450 and also under Section 506 (ii) of the Indian Penal Code. 7. I have considered the contentions raised. The evidence of PW1, who is an eyewitness and the son of the deceased Rajappan is clear and cogent. He has given evidence regarding the rubber tree standing on the property of the accused falling into the backyard of his house, the ensuing quarrel between the Crl. Appeal No.1213/2006 -13- deceased Rajappan and the 1[st] accused Peter (now deceased), the request to the 1[st] accused Peter to cut and remove all rubber trees which were likely to fall in a similar fashion and the response of the 1[st] accused (now deceased) who said "മരമലല്ലടടാ നനിറന്‍റ തലയടാണ് വവെടട്ടുന്നത". He has also given the evidence that thereafter by about 8:30 p.m., the 1[st] accused had again come back with accused 2, 3 and 4 (his brothers and sister) and they hurled obscenities and that accused 2, 3 and 4 called out to the 1[st] accused to kill the deceased Rajappan. He has also described how the 1[st] accused Peter had hit Rajappan on the left top portion of his head with the blunt portion of the chopper that he was carrying. He has also given evidence that his father fell face down into the room following the attack. He has also given evidence that the 2[nd] and 3[rd] accused were also having choppers in their hand and that the 4[th] accused was carrying a torch and a stick. He has stated that there was sufficient light from a Kerosene lamp and also electric light from the house of one Kunjachan and further that there was sufficient moonlight on the day of the incident which helped him to clearly identify the accused. He stated that he and his family members tried to revive Rajappan and had sprinkled water on the face of the Rajappan. He stated that with the help of neighbours including PWs 3 and 4, he had taken his father to the hospital from where he learnt that his father had died. He, however, admitted that his father was a heart patient. The cross-examination has failed to Crl. Appeal No.1213/2006 -14- bring out any different version than the one given during Chief Examination. He denied the suggestion that his father had folded his Lungi and jumped out of his house to attack the accused and had suffered the injury on account of a fall. Various suggestions put by the defence counsel to PW1 did not elicit any response contradicting the evidence given during the Chief Examination. PW1 marked Ext.P1 – F.I. Statement and also identified MO1 – the chopper used by the 1[st] accused, MO2 – being the torch used by the 4[th] accused and MO3 being the stick used by the 4[th] accused. PW2 is the wife of PW1. Her evidence is also consistent with the evidence tendered by PW1. Though the learned counsel for the appellant submits with reference to the statement made by the PW2 during the cross-examination that her father-in-law had fallen down in the backyard of their house at the place where the rubber tree had fallen, a reading of the entire evidence tendered by PW2 suggests that she was referring only to the place where the rubber tree had fallen and has not stated that her father-in-law had fallen down in the backyard of her house. Regarding the incidents that took place immediately after the incident, the evidence of the neighbours namely PW3 (Nakulan) and PW4 (Sasi) are consistent. Though it is suggested with reference to the evidence of PW3 that there was a scuffle between the 1[st] accused at one side and the deceased and the PW1 on the other at 7:15 p.m, that does not in any manner indicate that the 2[nd] incident (which took place at 8:30 P.M) did Crl. Appeal No.1213/2006 -15- not take place in the manner alleged. The evidence of PW4, the doctor who conducted the _post-mortem_ examination, is consistent in that the wound on the head of the deceased would have been caused by the blunt side of MO1 chopper. Though he indicated that a similar injury can be caused by the head hitting on a blunt object, the place where the injury was occasioned to the deceased Rajappan does not suggest that the said injury was on account of his head hitting any blunt object. PW13 was specifically questioned regarding the existence of any blunt object including any small table, which could have resulted in the injury to Rajappan, had his head come in contact with the same while falling. PW13 has specifically stated that he had examined the small table lying near the place where Rajappan had fallen down and could not detect the presence of any blood or tissue, which would suggest that Rajappan had hit his head on the said table while falling down. A reading of the evidence of PW10 and Ext.P7 Mahazar does not indicate that the recovery was not proper. The fact that the recovery of MO1 was only on 11.07.2005 does not by itself create any doubt regarding the recovery. The law laid down in _**Baliram Tikaram Marathe**_ (supra) and _**Natarajan**_ (supra) regarding notes taken down at the time of investigation is of no avail to the appellants since the fact situation in those cases are completely different. In _**Baliram Tikaram Marathe**_ (supra), the notes in question were recorded in writing, which is evident from the Crl. Appeal No.1213/2006 -16- deposition of PW14 in that case and it was in those circumstances that the Court came to the conclusion that the destruction of those notes was fatal to the prosecution case. Similarly, in _**Natarajan**_ (supra), it was held that, _**“2.** Section 161(3) of the Cr PC says that the police officer may reduce into writing any statement made to him in the course of an examination under the section, and if he does so he shall make a separate record of the statements of each such person whose statement he records. Section 173(4) of the Cr PC as amended by Act 26 of 1956, requires the officer in charge of the police station to furnish to the accused inter alia a copy of the statements recorded under sub-sec. (3) of Section 161 of the Cr PC, of all persons whom the prosecution proposes to examine as its witnesses. The question therefore is whether the statement prepared at the police station is the statement which was reduced into writing or only the earlier notes which were jotted down._ _The question may have to be answered with regard to the circumstances of each case, and so far as this case is concerned, it does not appear that the notes which were jotted down would themselves have been intelligible to another person. They might been just enough to enable the Sub Inspector to remember the essential particulars. S. 161(3) does not seem to prevent the Sub Inspector from making just a few jottings for refreshing his own memory. So far as this case is concerned, I feel no difficulty in holding that the statements which were reduced into writing at the police station immediately after the Sub Inspector reached there, are the statements relevant for the purpose of S. 161(3). It has also to be emphasised that the material circumstances had been brought out in the mahazar which was prepared at the scene of occurrence itself.”_ Crl. Appeal No.1213/2006 -17- The fact situation in the decision reported _**Pullukuri Kotaya v. Emperor;** AIR 1947 PC 67_ to which reference was made in the judgment of the Madras High Court is also different from the facts and circumstances in this case. That apart as rightly pointed out by the learned Public Prosecutor, no questions have been put to the Investigating Officer regarding the existence or otherwise of the Notes referred to in the final report. Therefore, nothing turns on the fact that the final report mentions that certain Notes were made by the police officers during the course of the investigation and that such notes were not supplied to the accused. The principle laid down in _**Golden Satheesan**_ (supra) regarding recovery is also not helpful to the accused in the facts of the present case as that judgment itself proceeds on the basis that authorship of concealment is not a _sine qua non_ for the admissibility of the statement under Section 27 of the Evidence Act. I am also not inclined to hold that this is a case, where the prosecution has suppressed any material facts and that the evidence was so unreliable that it required independent corroboration by other witnesses. The evidence of the eyewitnesses in this case namely, PWs 1 and 2 cannot be disbelieved on account of the minor inconsistencies in them. On the whole, their evidence is completely believable regarding the incident. The contention that there was no proper identification in the dock also cannot be accepted as in the facts of the present case, PW1 and the accused persons were neighbours and Crl. Appeal No.1213/2006 -18- very well known to each other. PW1 has referred to the accused 2, 3 and 4 by name while tendering evidence. This, in my opinion, is sufficient identification of the accused in the dock. The contention that there is a complete contradiction regarding the place of occurrence going by the statements in Ext.P1, F.I.Statement and the evidence tendered by PWs 1 and 2, also cannot be accepted in the light of the fact that a reading of Ext.P1 and the evidence tendered by PWs 1 and 2 shows that they are firm and consistent regarding the place of occurrence. The contention based on the judgment of the Madhya Pradesh High Court in _**Raghuveer Singh**_ (supra) regarding the failure to send MO1 and the clothes worn by the deceased Rajappan for identification of the blood group also does not appeal to me on account of the fact that the principle laid down, in that case, is that if the accused is to be convicted for the offence on the basis of bloodstains, then the grouping of the blood is essential. This is obviously not the case here. The contention of the learned counsel for the appellant that the prosecution has failed to give a true picture of the incident also does not appeal to this court. 8. The next question to be considered is whether in the absence of any specific overt act, accused 2, 3 and 4 can be convicted in the facts of this case. This question will depend on the question as to whether the prosecution has Crl. Appeal No.1213/2006 -19- succeeded in establishing a common intent. The evidence, in this case, suggests that there was an altercation between the 1st accused and the deceased Rajappan at about 7.15 P.M on 31-05-2004. It has also come out in evidence that later, the same day, by about 8.30 P.M the 1st accused had come there in the company of two of his brothers (Accused Nos. 2 & 3) and his sister (Accused No.4). Accused 1, 2 and 3 had choppers with them, while the 4th accused had a stick and a torch. The chopper carried by the 1st accused was subject matter of recovery under Section 27 of the Evidence Act. There is no recovery from accused 2 and 3. The 4th accused was carrying a stick and a torch which was also subject matter of recovery under Section 27 of the Evidence Act. Though the learned counsel for the appellant would attempt to show that they had come there with choppers only for the purpose of cutting and removing the fallen tree, the evidence in this case is consistent that before proceeding to do so, they had picked up a quarrel with Rajappan and that the 1st accused had hit Rajappan in the manner indicated already. The evidence that all the accused 2, 3 and 4 had called out to accused no.1 to kill Rajappan, is another fact, which indicates that all the accused had come to the house of Rajappan with the intention of causing some grievous hurt to him. The fact that there was no reason for them to attempt the cutting of the fallen rubber tree in the dead of the night also suggests that they had actually come there with the intention of accosting Crl. Appeal No.1213/2006 -20- Rajappan. Therefore the absence of any specific overt act will not absolve accused Nos. 2, 3 & 4. Considering the effect of Section 34 of the Indian Penal Code and referring to the judgment of the Privy Council in _**Barendra Kumar Ghosh**_ (supra), it was held in _**Birendra Das v. State of Assam**_ ; (2013) 12 SCC 236 _“16. ……….Both the accused persons were charged for the substantive offence under Section 302 IPC in aid of Section 34 of the Penal Code. The conditions precedent which are requisite to be satisfied to attract Section 34 of the Penal Code are that the act must have been done by more than one person and the said persons must have shared a common intention either by omission or commission in effectuating the crime. A separate act by each of the accused is not necessary._ _17. The Constitution Bench in Mohan Singh v. State of Punjab [AIR 1963 SC 174 : (1963) 1 Cri LJ 100] , while adverting to the concept of Section 34 IPC, has ruled thus: (AIR p. 180, para 13)_ _“13. … Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is_ Crl. Appeal No.1213/2006 -21- _constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.”_ _18. In Lallan Rai v. State of Bihar [(2003) 1 SCC 268 : 2003 SCC (Cri) 301] , relying upon the dictum laid down in Barendra Kumar Ghosh v. King Emperor [(1924-25) 52 IA 40 : AIR 1925 PC 1] and Mohan Singh [AIR 1963 SC 174 : (1963) 1 Cri LJ 100] , it has been ruled that: (Lallan Rai case [(2003) 1 SCC 268 : 2003 SCC (Cri) 301] , SCC p. 276, para 20)_ _“20. … the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to [achieve] a particular result.”_ _19. Recently, in Goudappa v. State of Karnataka [(2013) 3 SCC 675 : (2013) 2 SCC (Cri) 8] , the Court reiterated the principle stating that Section 34 of the Penal Code lays down a principle of joint liability in doing a criminal act and 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 has been further stated therein that the principle inherent in Section 34 of the Penal Code is only a rule of evidence, but does not create a substantive offence and, therefore, if the act is the result of a common intention, then every person would get the criminal act shared, and the common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Posing the question how to gather the common intention, the Court opined that the conduct of the accused soon before and after the occurrence, the determination and_ Crl. Appeal No.1213/2006 -22- _concern with which the crime was committed, the weapon carried by the accused and the nature of the injury caused by one or some of them are relevant. Emphasis has also been laid on the totality of the circumstances from which the common intention can be gathered.”_ Therefore, I am not inclined to accept the contention of the learned counsel for the appellant that the absence of an overt act should result in the acquittal of accused 2, 3 and 4 as the provisions of Section 34 will apply and each of them are liable in equal measure with the 1st accused for the injury caused to Rajappan. 9. However, in the totality of the facts and circumstances of the case, I am not inclined to hold that the appellants/accused 2,3 & 4 can be convicted under Section 304 IPC for the reason that the evidence is such that it cannot be held that there was neither _‘intention to cause death’_ nor any knowledge that their act is _‘likely to cause death’_ of Rajappan. From the Post-mortem report (Ext.P2 ) it is clear that the injuries caused on account of the blow infected by the 1[st] accused with the blunt side of a chopper was not the cause of death of Rajappan. A reading of Ext.P2 report also suggests that the said blow did not cause any serious injury to the brain of the deceased Rajappan and that his skull was intact. Though there is evidence to show that the accused was well aware that the deceased Rajappan was a heart patient, it cannot be assumed that they Crl. Appeal No.1213/2006 -23- were aware that a blow of the nature infected by the 1[st] accused on Rajappan would have resulted in his death. Therefore, it cannot be said that there was either any intention to cause death or the knowledge that the injury in question is likely to cause death of the deceased Rajappan. The conviction of the appellants under Section 304 of the Indian Penal Code is therefore not sustainable. The appellants ought to have been convicted under Section 324 of the Indian Penal Code. Though the learned Public Prosecutor would suggest that at any rate the provisions of Section 326 of the Indian Penal Code are attracted, having found that the injury was not inflicted with the knowledge that it is likely to cause death for the purpose of Section 304, I am of the opinion that it would be improper to convict the appellants/accused under Section 326 as that provision also requires a knowledge that the hurt caused would be likely to cause death. In the light of my finding that the appellant/accused could not have been convicted under Section 304 of IPC, the appellant/accused cannot be convicted under Section 450 of IPC. However, I find that in the light of the evidence in this case, the appellants / accused 2, 3 &4 could be convicted of the offence under Section 452 of the IPC. reads as follows; _**452. House-trespass after preparation for hurt, assault or wrongful restraint** .—Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either_ Crl. Appeal No.1213/2006 -24- _description for a term which may extend to seven years, and shall also be liable to fine._ I am convinced that there is sufficient evidence in this case to convict the appellants/accused under Section 452 of the IPC in the place of offence under Section 450. The conviction under Section 506 (Part-II) is sustained as I have found that the appellants guilty under Section 452 IPC. In the light of my findings the sentence imposed has to be modified. 10. The learned counsel for the appellants submitted that the 2[nd] accused is now aged 55, the 3[rd] accused is now aged 62 and the 4[th] accused is now aged 67 and they suffer from various ailments and pleaded leniency in the matter of sentence. Taking into consideration the medical records of the accused 2, 3 & 4 which have been placed on record together with memo dated 30-092021 and taking into consideration of the entire facts and circumstances of the case the appellants are sentenced to undergo rigorous imprisonment for 12 months and to a fine of Rs.75,000/- each for the offence under Section 324 of the IPC. The accused 2, 3 & 4 are sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 452 of the IPC and to imprisonment rigorous imprisonment for a period of one year for the offence under Section 506 Part-II of the IPC. The substantive sentences shall run concurrently. In default of payment of the fine amount, the accused 2, 3 & 4 Crl. Appeal No.1213/2006 -25- shall undergo rigorous imprisonment for a further period of 6 months. The 4[th] appellant/4[th] accused shall be permitted set off under Section 428 Cr. P.C. On realization of the amount of fine, an amount of Rs.1,00,000/- shall be paid to the wife of deceased Rajappan and she is not alive to her legal heirs, as compensation under Section 357 (1) (b) of the Code of Criminal Procedure. This appeal will stand disposed of accordingly. Sd/- **GOPINATH P. JUDGE** ## **AMG**