State of Kerala v. Suresh Babu @ Babu; Soman; and 4th accused

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 CRL.A.No. 881 of 2004() ----------------------SC.157/1992 of 1[st] ADDL. SESSIONS COURT, THRISSUR .................... APPELLANT: COMPLAINANT ---------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (C.I.OF POLICE, IRINJALAKUDA CRIME NO.80/91 OF THE CHERPU POLICE STATION) BY PUBLIC PROSECUTOR SHRI S.U.NAZAR RESPONDENTS: ACCUSED NOS.1, 3 & 4 --------------------------------- 1. SURESH BABU @ BABU, S/O. KALARIKKAL VEETTIL SANKUNNI, RESIDING AT VENGINISSERI DESOM AND VILLAGE. 2. SANTHOSH S/O. KALARIKKAL VEETTIL SANKUNNI, RESIDING AT VENGINISSERI DESOM AND VILLAGE. 3. SOMAN S/O. KALARIKKAL VEETTIL SANKUNNI, RESIDING AT VENGINISSERI DESOM AND VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.A.NO.6520/03 IN CRL.A.881/04 DISMISSED 9.7.08 SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- M.C.HARI RANI, JUDGE. ## **K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------CRL.APPEAL No.881 OF 2004** **----------------------------------------------------DATED THIS THE 9[th] DAY OF JULY, 2008** ## **J U D G M E N T** Balakrishnan Nair, J. The State through the Public Prosecutor has filed this appeal challenging the judgment of the learned 1[st] Additional Sessions Judge ,Thrissur in S.C.157/92 to the extent accused Nos.1, 3 and 4 are acquitted of the offence under section 302 IPC. 2. The brief facts of the case are the following. The deceased Muraleedharan had five sisters. One of his sisters Smt.Rathi was in the family house of the deceased on 25.5.1991. The second accused who is residing in the neighbouring house went to the house of the deceased stealthily under the cover of the night. He opened the window and tried to outrage the modesty of Smt.Rathi. She identified the person who made the said attempt as the second accused. She conveyed the said fact to her brothers. 3. On 31.5.1991, immediately after sun set, the deceased met the 4[th] respondent on the roadside in front of the house of the latter. The deceased enquired about the 2[nd] respondent to the 4[th] respondent. The 4[th] respondent said, he will call the 2[nd] accused who is in the house. Later, all the brothers, accused Nos.1 to 4 came to the CRL.A.881/04 2 deceased. Except the 4[th] respondent, all others were holding their hands behind their back. The 1[st] accused was carrying an iron road, the 2[nd] accused was carrying a knife and the 3[rd] accused was carrying a chopper. The 2[nd] accused came menacingly close to the deceased who pushed the said accused away. Immediately, the 1st accused who was standing behind the 2[nd] accused came forward and hit the deceased on his stomach using the iron road. The 2[nd] accused stabbed the deceased on his chest. On seeing this, one of the friends of the deceased Muraleedharan came forward to help him. The 3[rd ] accused waived the chopper in his hand to prevent other people from coming to the deceased. 4. After the accused left the scene, the friends of Muraleedharan took him to the Medical College Hospital, Thrissur where he was pronounced dead. First information regarding the incident was lodged by PW1. The Circle Inspector of Police Irinjalakuda conducted the inquest, questioned the witnesses, arrested the accused, completed the investigation and laid the charge before the Judicial Second Class Magistrate Court-II, Thrissur. The learned Magistrate committed the case for trial by the Sessions Judge. The learned Sessions Judge in turn made over the same to the 1[st] Addl.Sessions Judge. The accused pleaded not guilty to the charges CRL.A.881/04 3 framed against them. PWs 1 to 12 were examined from the side of the prosecution and Exhibits P1 to P13 were marked. MOs 1 to 5 were produced. During the examination of the witnesses, Exhibits D1 to D7 which were the contradictions in the deposition of the witnesses with reference to their statement under section 161 Cr.P.C. before the police were also marked from the defence side. The accused were questioned under section 313 Cr.P.C.. No witness from the side of the defence was examined. The case has got a chequered history which need not be detailed here as the same is not relevant. Suffice it to say that the learned First Addl.Sessions Judge by judgment dated 29.11.01 which is impugned in this appeal convicted the 2[nd] accused for the offence under section 302 IPC and sentenced him to undergo imprisonment for life. The 1[st] accused was found guilty of the offence under section 324 IPC and he was sentenced to pay a fine of Rs.5,000/- and in default to suffer imprisonment for six months. We are told that the 1[st] and 2[nd] accused have filed Crl.Appeal before this Court challenging the conviction and sentence imposed on them. The said appeal was dismissed by this Court by judgment dated 6.6.03. The SLP attempted against that judgment was dismissed by the Apex Court by order dated 24.11.2003. 5. One of the brothers of the deceased have preferred CRL.A.881/04 4 Crl.R.P.No.382/2000 dissatisfied with the acquittal of some of the accused and also by the sentence imposed on the accused who were convicted. But later, the State has come forward and filed this appeal praying that the order of acquittal of Accused Nos.1, 3 and 4 may be set aside and they may be convicted for the offence under section 302 IPC. 6. We heard the learned Public Prosecutor Mr.S.U.Nazar for the State. We also heard the submissions of learned counsel Mr.Grashious Kuriakose who appeared in the connected criminal revision petition. In view of the filing of the appeal, the said revision has become redundant. But, the learned counsel addressed his arguments in support of the grounds taken in appeal by the State. We also heard learned counsel Mr.Vijayabhanu, who appeared for the respondents in this appeal as well as in the criminal revision petition. 7. The learned Public Prosecutor took us through the depositions of the witnesses, the documents and other materials on record. He submitted that since the 4[th] accused came unarmed, he may not have shared any common intention to murder the deceased, but the other accused were having that common intention. That is why they came prepared to attack the deceased armed with lethal weapons. The learned Prosecutor pointed out that without any CRL.A.881/04 5 provocation accused 1 and 2 launched the attack on the deceased and the 3[rd] accused stood guard to avoid others coming to the aid of the victim. So, it can be safely presumed that accused Nos.1 to 3 shared the common intention of murdering the deceased. Therefore the court below should have convicted them also for the offence under section 302 IPC. The learned counsel Mr.Grashious Kuriakose supported the above submissions. He also pointed out that at any rate it should be held that accused have the common intention to cause grievous hurt to the deceased and therefore they are liable to be found guilty under section 304(1) of the IPC. The 4[th] accused could have pacified and sent away the deceased and he could have gone and told his brothers not to go out and create any problem. But he went inside and came out with three of his brothers, who were armed with deadly weapons to handle a single unarmed person. Therefore, the common intention of at least to inflict a grievous hurt to the deceased is manifest, though the fatal stab was made by the 2[nd] accused. The other accused should have been roped in view of section 34 of Indian Penal Code, it is submitted. The court below failed to appreciate this aspect and therefore the findings of the court below in this regard is perverse, suffers from manifest illegality and therefore this Court should reappreciate the evidence and find that the other accused who were let CRL.A.881/04 6 off were also guilty in view of section 34 IPC. 7. The learned Counsel Mr.P.Vijayabhanu who appeared for the respondents submitted that on the facts of this case, the view taken by the learned Sessions Judge is certainly a plausible view. It cannot be described as one which no man in his sense will take, and therefore perverse. The decision does not suffer from any manifest illegality and therefore this Court may not venture to interfere with the findings on evidence rendered by the trial court. The learned counsel also brought to our notice the well settled principles governing the exercise of power of this Court in reversing an acquittal. Reference was made to the decision of the Apex Court in **State of Goa v. Sanjay Tharakan. 2007(3) SCC 755.** Special reference was made to paragraphs 14 to 16 which are extracted below for reference. “14. By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the the appellate court, and while dealing with appeal against an order of acquittal this Court observed in Tota Singh v. State of Punjab as under:(SCC p.532, para 6.) “6. ........ The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated CRL.A.881/04 7 by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.” 15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat:(SCC p.229, para 7). “7. ....... This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons CRL.A.881/04 8 to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only- reappraise the evidence to arrive at its own conclusions.” and in State of Rajasthan v. Raja Ram: (SCC pp.186-87, para 7). “ There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.). The principle to be followed by the appellate court considering the CRL.A.881/04 9 appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat and Jaswant Singh v. State of Hayrana. 16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.” In the light of the above decision, the learned counsel submitted that this is not fit a case warranting interference by this Court invoking the CRL.A.881/04 10 power of this Court in an appeal against acquittal. 8. The learned Sessions Judge considered whether the other accused from whose side there was no overt act could be convicted, relying on section 34 of the IPC at paragraph 29 of the judgment under appeal. The said paragraph reads as follows: “ But, the prosecution has a case that the accused committed the act in furtherance of a common intention to cause death and commit murder. If it was done in furtherance of the common intention, the all would be constructively liable for everybody's act. Hence the question to be considered is whether the acts were done with the common intention. As I have already stated, A4 has not done any overt act. It is stated that he was simply present. Common intention pre-supposes prior concert. Prior concert can be inferred from attending circumstances. 4[th] accused has not done anything. If the 4[th] accused had the intention to do anything to Murali, normally he would have talked with Murali violently before going to call the 2[nd] accused. Hence a prior concert with the 4[th] accused cannot be inferred. The only act imputed against A3 is waiving of the chopper for dissuading other to near the place. No other utterance or any conduct was there from his part. There is a mere statement that he waived the chopper. Hence I am inclined to give benefit of doubt to him as to the common intention to do anything on the victims. What remains is the acts of the 1[st] accused and 2[nd] accused. The case is that they were CRL.A.881/04 11 armed with weapons. They were holding a weapon each behind them. It looks that the 2[nd] accused was proceeding in front and 1[st] accused was behind him. The case is that 2[nd] accused hacked the victim with the iron road only on seeing the victim pushing back A2 while he was nearing him. It is stated that on pushing A1 went forward and hit at him. It looks that immediately on hitting the victim cried that he was not getting breath and PW2 had supported him with his hands. He hacked first because of the intention was to inflict further injuries and commit murder, it was possible for him to repeatedly assault him with the iron rod. But it looks that on hearing that the victim saying that he was not getting breath, he stopped his activities. It was 2[nd] accused who stabbed him. Hence it looks that he had no intention to commit murder and he committed the act only on seeing the victim pushing A2 back. Hence I find that the stab was made not in furtherance of the common intention of the four accused to cause the death of the victim. Hence the accused can be held guilty for their individual acts. If so, 2[nd] accused would be guilty of the offence punishable under Sec.302 IPC and the 1[st] accused only for the offence punishable under Sec.324 IPC.” To arrive at a finding whether the above view taken by the learned Sessions Judge is perverse or vitiated by manifest illegality, it will be appropriate to refer to the evidence on record. 10. PWs 1 to 3 and 5 who are the occurrence witnesses spoke CRL.A.881/04 12 about the incident. They are consistent in their version that the deceased and the 4[th] accused had a brief talk by the side of the road in front of the house of the latter. The deceased wanted the 4[th] accused to meet the second accused. The 4[th] accused went inside his house and came out with his three other brothers. It is common case that 4[th] accused came unarmed. If he had any common intention with the other accused, to murder or cause grievous hurt to the deceased, he would also have normally come armed with some weapons. He came unarmed and no overt act is alleged against him by the witnesses for the prosecution. So, the leaned Public Prosecutor in this case has rightly did not canvass for the conviction of the 4[th] accused. We find that there is nothing illegal or perverse about the acquittal of 4[th] accused. But the State and the brother of the deceased canvassed for the conviction of accused 1 and 3 for the offence under section 302 or at least for the offence under Section 304(1) IPC. From the evidence on record, it is clear that the accused 1 to 3 came armed. Probably they may have been expecting some problem from the part of the deceased as he has come in a drunken state to avenge the honour of his sister. Naturally, as a precautionary measure, they have come armed with weapons. As mentioned earlier, the 2[nd] accused came threateningly close to the deceased and the deceased pushed him CRL.A.881/04 13 away. On seeing this, the 1[st] accused who was standing behind the 2[nd] accused came forward and hit the deceased on his stomach with an iron rod. If the 1[st] accused shared the common intention with the 2[nd] accused to cause grievous hurt, the blow would have normally been dealt with on the head and not on the stomach. So, if it is held that he did not share the common intention of murdering the deceased or causing grievous hurt to him, the same cannot be said to be a perverse view. If that be so, he can be punished only for the overt act from his side and cannot be made constructively liable for the action of the 2[nd] accused. The said view taken by the learned Sessions Judge is certainly a plausible view. The evidence of the prosecution witnesses regarding the role of the 3rd accused is that on seeing the stabbing of the deceased by the 2nd accused, the friends of the deceased came running to the place of occurrence. To prevent them coming close to the accused, the 3[rd] accused waived the chopper in his hand. If the 3[rd] accused had any intention to cause grievous hurt or death of the Muraleedharan, he would have also participated in the attack on him. When the 1[st] and 2[nd] accused attacked, there was no attack from the part of the 3[rd] accused. Only, when the friends of the victim came forward, he tried to prevent them. Here also, if the trial court takes the view that 3[rd] accused did not share the common intention to cause CRL.A.881/04 14 death or grievous hurt to the deceased, the same cannot be described as a view which will not be taken by any man in his senses and therefore perverse. There is no patent illegality in taking that view. It can definitely be described as a plausible view on the facts, with which we cannot interfere in this jurisdiction. 10. We are of the view that the learned Sessions Judge has appreciated the evidence properly and has arrived at a reasonable finding on them. If the learned Sessions Judge has chosen to convict the accused according to the over act from their part and did not invoke section 34 on the ground that they did not share any common intention, the same is definitely a reasonable view on the facts. We are of the view that no ground has been made out warranting interference with the said view. The contentions of the learned Public Prosecutor and the learned counsel for the revision petitioner are devoid of any merit. In the result, the Crl.Appeal fails and it is dismissed. ## **K.BALAKRISHNAN NAIR,JUDGE.** ## **M.C.HARI RANI, JUDGE.** dsn