Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 725 OF 2012
PALAKOM ABDUL RAHIMAN …Appellant(s)
VERSUS
THE STATION HOUSE OFFICER
BADIADKA POLICE STATION,
KERALA & ANR. .…Respondent(s)
WITH
CRIMINAL APPEAL NO(s). 727 OF 2012
J U D G M E N T
Rastogi, J.
th
1. The present appeals arise out of the judgment dated 16
November, 2007 passed by the High Court of Kerala in Criminal
Appeals convicting the accused appellants(accused no. 1 and
accused no. 3) for offence under Section 302 read with Section 34
IPC and also under Section 324 IPC and sentenced to undergo
Signature Not Verified
rigorous imprisonment for life.
Digitally signed by
DEEPAK SINGH
Date: 2019.04.09
14:13:49 IST
Reason:
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2. The accused persons faced trial for double murder of a
father and son (Assainar & Abdul Rahiman) and causing grievous
injuries to PW2 Mohammed, son of deceased Assainar. That in
all, 11 persons were initially chargesheeted including appellants
for offence punishable under Section 143, 148, 323, 324, 325
and 302 IPC read with Section 149 IPC. There was separate
charge against accused nos. 1 and 3 for offence under Section
302 read with Section 34 IPC yet alternate charge against
accused no. 3 under Section 302 IPC.
3. After analysing the evidence, learned trial Court convicted
accused nos. 1 and 3 along with other accused persons for
offence under Section 143, 148, 323, 324 read with Section 149
IPC and for 302 read with Section 149 IPC and sentenced them
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to rigorous imprisonment for life vide judgment dated 31 July,
2006. Accused nos. 1, 2 & 3 preferred joint appeal against the
impugned judgment of the learned trial Court and the High Court
of Kerala after due appraisal of the evidence on record, found all
the three accused guilty and convicted them under Section 302
read with Section 34 IPC and sentenced to undergo rigorous
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imprisonment for life vide impugned judgment dated 16
November, 2007.
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4. Accused no. 2 died at the later stage and accused nos. 1
and 3 have preferred their appeals to this Court against the
impugned judgment.
5. To unfold the case of the prosecution, the incident alleged to
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have occurred around 2.15 p.m. on 5 December, 1995 in front
of the Madrassa building situated in the premises of Bardar
Masjid, Belincha, Kumbadage village. The fateful day being
Friday, almost all the male members of Jamayath had assembled
for prayer. PW2 Mohammed reached at the mosque around
11.30 a.m. and was entrusted with the duty to bring the new
Katheeb Mohammed Musliyar. The Katheeb had given a letter
with amorous overtones to one Mimuna. On the basis of the
majority opinion, the masjid committee terminated the services of
earlier Katheeb of the mosque. At 1.45 p.m., the prayer speech
was over. There was a dispute between the committee members
who were in favour of the removal of earlier Katheeb and those
who opposed. Just after the prayer, new Katheeb made a brief
religious discourse. Afterwards, people began dispersing. PW2
requested them to remain there and decide whether the new
Katheeb was fit or not. Inspite of the request made, some people
left the place and around 40 persons including the accused
3
remained in the mosque. PW1 made a declaration that the
action of the old Katheeb was not proper. At that time, accused
no. 1 and accused no. 3(appellants herein) along with other
persons were standing in a group. PW1 again said that the old
Katheeb was not terminated in accordance with his personal
wish but as decided by the committee. Seeing that situation was
getting tense, PW1’s brother caught PW1 and escorted him to
the door and both went out. Behind them PW2 and his father
and brother came out of the mosque. Behind PW2 and others,
the accused persons also came out in a group. PW2’s father and
younger brother hurried along the front courtyard of the
madrassa to reach the road abutting on the eastern boundary of
the compound. Accused no. 2 who was just approaching the
courtyard of the madrassa suddenly exhorted raising his voice
“There they go! Why simply watch? Go and stab.” Immediately
accused no. 1 dashed at PW2’s father Assainar and stabbed him
right on his back with the dagger. Assainaron receipt of the stab
swayed on his unsteady steps and finally fell down. Seeing the
incident, PW2’s brother Abdul Rahiman came running to the
spot and threw a stone at accused no. 1. It struck him on his
chest. When Abdul Rahiman reached near, accused no. 1
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stabbed him also on the left side of his neck. Seeing this, PW2
hugged accused no. 1 from behind. Seeing that accused no. 1
was in the grips of PW2, accused no. 3 dashed to the spot with a
dagger stabbed Abdul Rahiman on his hand. Abdul Rahiman fell
down. Accused no. 2 came running to the spot and he with the
dagger in his hand stabbed PW2 on his back. In the fateful
incident, the Assainar and Abdul Rahiman, father and brother of
PW2 and PW4 who were the ocular witnesses of the incident
succumbed to the injuries.
6. On 6.12.1997 at 10 AM, PW21 Doctor attached to the
Taluk Headquarters Hospital, Kasargod, conducted postmortem
over the dead body of Assainar with the following injuries:
“1.An incised wound over inter scapular region, right side,
close to mid line, 4 X 1 X 4 cm.
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2. Beneath the first injury ribs 5 and 6 ribs were found
fractured.
3.Injury nos. 1 extended to heart and there was an incised
wound measuring 1.5 X 0.5 X 1 cm to the heart. The
instrument with which the victim was stabbed had entered the
heart.
PW21 Doctor opinioned that the victim died of bleeding
from heart and because of the fracture of the ribs. The
injuries noticed by her was the result of a single stab.”
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7. On 6.12.1997 from 10.45 AM onwards, PW21 Doctor
conducted post mortem examination over the dead body of Abdul
Rahiman and noticed the following antimortem injures:
“1. An incised wound, oblique, 4 cm X 1 cm X 3.5 cm over the
left supra clavicular region.
2. An incised wound measuring 3 cm X 2.5 cm X 4 cm over the
left scapular region.
3. An abrasion measuring 3 cm X 1 cm X 0.5 cm on the right
side of forehead.
It was seen that injury no. 1 resulted in the total severance of
the left carotid artery. Injury no. 2 reached the left lung.
There was a through and through injury over the apex of the
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left lung. There was fracture on 3 and 4 ribs posteriorly,
just lateral to the mind clavicular line. It was also the
continuation of the second incised wound referred above. PW
21 opinioned that the injuries nos. 1 and 2 were caused by two
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separate stabs. The 3 injury(aberration) could be the result
of fall on the ground. Injury no. 1 was sufficient in the
ordinary course of nature to cause death. It is extremely
difficult to arrest bleeding when the carotid artery is injured.
Exhibit P16 is the relevant post mortem certificate.”
8. The prosecution in support of its case recorded the
statements of PW1 to PW25 and also placed on record Exhibits
P1 to P38 with material objects MO1 to MO14 and both
accused no. 1 and accused no. 3 in their statement recorded
under Section 313 CrPC took the stand that no such incident
had taken place as alleged by the prosecution.
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9. The learned trial Court and also the High Court has
confirmed the guilt of both the accused persons (accused no. 1
and accused no. 3)(appellants herein). The learned trial Court
convicted the accused appellants for the offence under Section
302 read with Section 149 IPC and also under Section 143, 148,
323, 324 read with Section 149 IPC. On appeal being preferred
by accused appellants, the High Court found both of them guilty
for the offence punishable under Section 302 read with Section
34 IPC and also under Section 324 IPC.
10. Learned counsel for the accused no. 3(Palakom Abdul
Rahiman) submits that prosecution solely rested on the theory
that the offences were committed by the unlawful assembly in
prosecution of the common object of the unlawful assembly, and
once the theory of unlawful assembly did not find favour, the
accused at least could not have been convicted with the aid of
Section 34 especially when the prosecution story was that he
came into action subsequent to the alleged overt acts by other
accused persons. Learned counsel further submits that the
finding which has been recorded by the High Court that “we are
of the opinion that accused nos. 1, 2 and 3 are guilty of offence
under Section 302 read with Section 34 IPC as they shared
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common intention to do away with the Assainar and Abdul
Rahiman. Their overt acts also proved by witnesses” is erroneous
and there was no corresponding injury in the postmortem report
which was alleged to have been inflicted by him which proved
that the allegation against him was false and he was falsely
implicated by the prosecution and submits that in the light of the
principles laid down by this Court in Suresh & Anr. Vs. State
2001(3) SCC 673, his conviction with the aid of Section
of U.P.
34 was not sustainable and there was no occasion for common
intention as the only overt act alleged against him was causing a
stab injury on the deceased Abdul Rahiman, which was proved to
be false by the medical evidence. When the prosecution has
failed to explain the injuries on accused nos. 1, 2 and 7 which in
turn did not prove that the incident occurred not as narrated by
the prosecution and there was deliberate attempt on the part of
the prosecution to distort the course of events.
11. Learned counsel for accused no. 1(G. Moideenkutty)
submits that the charge against accused nos. 1 and 3, i.e. charge
under Section 302 read with Section 149 IPC stood concluded
with the finding of the learned trial Court that “accused no. 1 and
accused no. 3 were not propelled into action by any common
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intention to murder Assainar and Abdul Rahiman. The murders
were committed with the common object of the unlawful
assembly. Therefore, the offence under Section 302 read with
Section 34 IPC is not established against accused no. 1 and
accused no. 3” and, since the same was not challenged before the
High Court by the State, Section 34 IPC was no more available.
After the finding has been recorded by the High Court holding
that there was no unlawful assembly, at least the accused
appellants could not have been convicted under Section 302 with
the aid of Section 34 IPC.
12. Learned counsel further submits that even if the case of the
prosecution is taken on its face value, it may fall within the
exception of Section 300 IPC and may not travel beyond Section
304 Part I IPC and both the accused persons have undergone a
sentence of 9 years deserves the indulgence of this Court.
13. Per contra, learned counsel for the State submits that from
the evidence adduced by the prosecution and the attending
circumstances of the case, the prosecution has been able to prove
the common intention of the accused appellants in the
commission of crime and the High Court has rightly convicted
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both the accused persons under Section 302 with the aid of
Section 34 IPC.
14. We have considered the rival contentions and perused the
impugned judgment and the material placed on record.
15. At the outset, it may be noticed that both accused nos. 1
and 3 (appellants herein) were chargesheeted for offences under
Section 302 read with Section 149 IPC and there was also a
separate charge against both of them under Section 302 read
with Section 34 and yet another separate charge against accused
no. 3 under Section 302 IPC apart from offences punishable
under Section 143, 148, 323, 324, 325 IPC. After analysing the
evidence on record, the learned trial Court convicted both the
accused appellants for offence under Section 302 read with
Section 149 IPC but on reappraisal of the evidence on record, the
High Court confirmed their guilt but convicted both of them
under Section 302 read with Section 34 IPC.
16. On going through the evidence of PW1, though he was
declared hostile, the motive is proved. He had signed Exhibit P1
(F.I. statement) confirming that his statement was correctly
recorded. He had stated that the incident started when the
accused party questioned regarding the termination of Katheeb.
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Therefore, the genesis of the incident as well as the motive was
proved by PW1. The alleged incident occurred around 2.15 p.m.
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on 5 December, 1995 and statement of PW1 was recorded at
3.00 p.m. and immediately the FIR came to be registered.
According to him, the accused persons who questioned the
termination of services of Katheeb, were having weapons(dagger)
with them.
17. Coming to the evidence of PW2, the ocular witness, who
suffered serious injuries and Exhibit P8is his wound certificate
which was proved by PW9 the Doctor. Exhibit P8 wound
certificate shows the following injuries:
1. Contused swelling in between the eye brows
measure 2” X 2”.
2. Incised wound 2” X 1/2 “ X 3” bleeding over the
backinterscapular area.
3. Swelling over the Rt. Angle of mandible present.
4. Bleeding from the mouthAbrasions over the
lower lip. Loose Rt. Lower incisor +2.
5. Bleeding from the nose seen.
CT scan shows Rt. Frontol lobe contusion with
thin sundural Haematome.
Exploration of chest stab at the (L)
interscapular area donewound 2” X ½” X 3
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deepobliquely cutting the deeper muscle but
not entering the plural cavityBleeders
contused & closed in layers.
18. From the evidence of the prosecution, it can easily be
discerned that the accused persons including accused nos. 1 and
3 and the complainant party including deceased persons and
PW2 and PW4 alongwith others came to the mosque and after
the prayer was over, a clash occurred regarding the dispute of
removal of Katheeb. All the persons including accused nos. 1
and 3 who were standing in the mosque, after the prayer was
over, started questioning PW1 regarding the removal of earlier
Katheeb. Both the deceased Assainar and Abdul Rahiman were
supporting the action in removing the earlier Katheeb and when
they were about to leave the mosque, accused no. 2 exhorted to
stab which was heard by PW2 and PW4. According to PW2,
accused no. 2 called out and stated, “there they go! Why simply
watch? Go and stab” and at this spur of moment, common
intention was developed and accused no. 1 and accused no. 3
who were having daggers with them, stabbed deceased Assainar
and Abdul Rahiman.
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19. A careful analysis and appraisal of the evidence on record
establish the presence of accused no. 1 and accused no. 3 at the
time of occurrence with sharp edged weapon(dagger) with
accused no. 2 who was also armed with sharp edged weapon,
and had shared common intention with accused no. 2 of causing
bodily injuries to the deceased Assainar and Abdul Rahiman
which were sufficient in the ordinary course of nature to cause
death of the deceased.
20. The true purport of Section 34 IPC is that if two or more
persons intentionally do an act jointly, the position of law is just
the same as if each of them have done it individually. The
process of law is intended to meet a situation in which it may be
difficult to distinguish between acts of individual members of a
party who act in furtherance of the common intention as held by
this Court in Chinta Pulla Reddy and others Vs. State of
1993 Supp(3) SCC 134 and
Andhra Pradesh Girija Shankar
Vs. State of U.P. 2004(3) SCC 793.
21. The application of principles enunciated in Section 34 IPC,
when an accused is convicted under Section 302 read with
Section 34 IPC, in law means that the accused is liable for the act
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which caused death of the deceased in the same manner as if it
was done by him alone. As was observed by this Court in
(supra), Section 34 is
Chinta Pulla Reddy and others case
applicable even if no injury has been caused by the particular
accused himself. Applicability of Section 34 has been considered
by this Court in Girija Shankar’s case (supra) as follows:
“ Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The section is
only a rule of evidence and does not create a
substantive offence. The distinctive feature of the
section is the element of participation in action. The
liability of one person for an offence committed by
another in the course of criminal act perpetrated by
several persons arises under Section 34 if such
criminal act is done in furtherance of a common
intention of the persons who join in committing the
crime. Direct proof of common intention is seldom
available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
In order to bring home the charge of common
intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan
or meeting of minds of all the accused persons to
commit the offence for which they are charged with the
aid of Section 34, be it prearranged or on the spur of
the moment; but it must necessarily be before the
commission of the crime. The true concept of the
section is that if two or more persons intentionally do
an act jointly, the position in law is just the same as if
each of them has done it individually by himself. As
observed in Ashok Kumar v. State of Punjab (1977) 1
SCC 746, the existence of a common intention
amongst the participants in a crime is the essential
element for application of this section. It is not
necessary that the acts of the several persons charged
with commission of an offence jointly must be the
same or identically similar. The acts may be different
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in character, but must have been actuated by one and
the same common intention in order to attract the
provision.”
22. It goes without saying that it would depend on facts of each
case as to whether Section 34 or Section 149 or both the
provisions are attracted. The nonapplicability of Section 149 IPC
is no bar in convicting the accused persons under Section 302
IPC read with Section 34 IPC provided there is evidence which
discloses commission of offence in furtherance of common
intention and this Court had an occasion to consider the scope of
Section 34 IPC and Section 149 IPC in
Birbal Choudhary alias
Mukhiya Jee Vs. State of Bihar 2018(12) SCC 440 as follows:
“There cannot be any quarrel about the law laid
down in the aforesaid judgments where subtle
distinction is drawn between Section 34 and Section
149 IPC which deal with “common intention” and
“common object” respectively. At the same time, it is
also clarified that it would depend on the facts of each
case as to whether Section 34 or Section 149 IPC or
both the provisions are attracted. It is also held that
nonapplicability of Section 149 IPC is no bar in
convicting the accused persons under Section 302 IPC
read with Section 34 IPC, if the evidence discloses
commission of offence in furtherance of common
intention of them all. From the facts of the present
case, we are satisfied that the courts below have rightly
concluded that there was a common intention in
committing the offence of kidnapping for ransom, by all
the convicted persons.”
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23. In our considered opinion, both the appellants(accused no.
1 and accused no. 3) shared the common intention with accused
no. 2 by causing bodily injuries to the deceased which were
sufficient in the ordinary course of nature to cause death of
Assainar and Abdul Rahiman. Section 34 is, therefore, clearly
attracted to the case of accused no. 1 and accused no. 3 even
though the injuries assigned to him(accused no.3) may not be on
the vital part of the body of the deceased, the conviction of
accused no. 1 and accused no. 3 for the offence under Section
302 read with Section 34 IPC is, therefore, well merited and the
sentence of rigorous imprisonment for life imposed upon them is
justified.
24. The submission of the learned counsel for the appellants
that once the common object has not been established then they
would not have been convicted with the aid of Section 34 IPC is
without substance for the reason that both the accused persons
were charged with Section 302 read with Section 149 IPC and
also under Section 302 read with Section 34 IPC in alternate. In
the present case, the prosecution has been able to establish the
common intention of the accused persons for their overt acts in
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commission of crime and they have been rightly held guilty for
offence under Section 302 read with Section 34 IPC.
25. The further submission of the learned counsel for the
appellants that even if the case of the prosecution is taken on its
face value, it may fall within the exception of Section 300 IPC and
may not travel beyond Section 304 Part I IPC is without
substance for the reason that prosecution has been able to
establish from the evidence on record beyond reasonable doubt
their common intention and their overt act in the commission of
crime. The act of either of the accused appellants would not fall
under any of the exceptions of Section 300 IPC as urged by the
learned counsel for the appellants.
26. From the analysis, we are satisfied that the appellants in
furtherance of common intention committed an act of murder of
deceased Assainar and Abdul Rahiman and the High Court under
the impugned judgment has rightly held both the appellants
guilty for offence under Section 302 read with Section 34 IPC.
27. Consequently, both the appeals fail and are accordingly
dismissed.
28. Since both the accused appellants (Palakom Abdul Rahiman
and G. Moideenkutty) are on bail, their bail bonds stand
17
cancelled. They are directed to surrender forthwith and serve the
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life sentence in terms of the impugned judgement dated 16
November, 2007 passed by the High Court.
29. Pending application(s), if any, stand disposed of.
…………………………J.
(A.M. KHANWILKAR)
…………………………J.
(AJAY RASTOGI)
NEW DELHI
April 09, 2019
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