Prathap & Anr vs State Of Kerala

Prathap & Anr. ... Appellants

VERSUS

State of Kerala ...Respondent

JUDGMENT

SURINDER SINGH NIJJAR, J.

1. These two appeals have been filed against the

common judgment of the High Court of Kerala

at Ernakulam dated 28.6.2004 in Criminal Appeal

No. 432 of 2003 and Criminal Appeal No. 873 of

2003 whereby the High Court dismissed the appeal

filed by the appellants herein by confirming the

judgment of the trial court convicting and

sentencing them under Section 302 and 149

of the Indian Penal Code. By the same judgment,

1 their conviction under Section 120 (B) was set

aside.

2. The appellants along with eight other persons were

tried by the Sessions Court, Kollam, in Sessions

case no. 564/1999 for the offences punishable

under Section 114, 143, 147, 148, 120(B) & 302

read with Section 149 of Indian Penal Code. It was

the case of the prosecution that the deceased

Kochukuttan and Murali (CW-11) had assaulted the

appellants on 19.5.1997 "at 9.00 p.m. at a place

at Chaithram Restaurant" run by the appellant

Devakumar @ Jayakumar. Seeking revenge, the

two appellants, Rajeev (A3) and Venu (A4)

assembled at Chaithram Restaurant at Veliyam

junction on 20.6.1997 at 7.45 p.m. and hatched a

conspiracy to murder Kochukuttan. On 24.6.1997,

all the ten accused in furtherance of a common

object, armed with deadly weapons such as swords,

iron rods, chopper, knife and stick etc. came to

Chaithram Restaurant in a jeep KL-2B/9938.

2 The jeep, which belonged to CW-16, was driven by

Venu (A4). All the accused came out of the jeep at a

place in front of the restaurant. Accused Prathap

(hereinafter referred to as A1) and Rajeev

(hereinafter referred to as A3) were in the front

whereas Padmachandran (A5) to Deepu (A10)

followed behind them. They came to a place in front

of Harishree Bakers on the Eastern side of

Kottarakkara Oyoor Public Road at Veliyam

junction at about 7.45 p.m. At that time, the

deceased was talking to PW-1 Hareendranathan.

A3, Rajeev, called Kochukuttan by saying

"Kochukuttan Come here". Thereafter, appellant no.

1 Prathap (A1) assaulted the deceased with his

sword and caused an injury on his head. At the

same time, appellant no. 2 (A2) shouted "cut

this man". He was also armed with a sword and

made a cut with the same on the side of the chest of

the deceased. As a result of the injuries,

Kochukuttan fell down on the road on the side of

3 the verandah of Harishree Bakers. Thereafter,

Padmachandran (hereinafter referred to as A5),

Arjunan (hereinafter referred to as A6), Siddikishan

(hereinafter referred to as A7), Saji @

Sajith(hereinafter referred to as A8),

Rajesh(hereinafter referred to as A9) and

Deepu(hereinafter referred to as A10) are alleged to

have inflicted various injuries with their weapons

such as iron rods, chopper, sword, knife and stick.

After causing mortal injuries to Kochukuttan, the

assailants left the place in the same jeep in which

they had arrived. The deceased was moved to the

hospital initially in a car driven by CW-14.

However, the lights of the car developed some

problem and the deceased was transferred to the

jeep driven by CW-15. Kochukuttan succumbed to

the injuries at 8.10 p.m. on 24.6.1997. Upon

completion of the investigation, the ten accused

were put on trial. The prosecution cited PW-1, PW-

2. PW-4 and PW-5 to PW-10 as eye-witnesses. It is

4 noticed by the High Court that PW-6 to PW-10 were

declared hostile as they did not fully support the

prosecution story. PW-3 was examined mainly to

prove the criminal conspiracy which had been

hatched at the hotel of Chaithram owned by A2,

appellant in Criminal Appeal No. 873 of 2003 in the

High Court. The trial court convicted A1, A2, A5,

A6 and A7 under Section 302 of IPC and

sentenced them to imprisonment for life and fine of

Rs. 20,000/- each, in default to undergo R.I. for a

period of 6 months. A1, A2, A5, A6 and A7 were

also convicted under Section 149 and sentenced to

R.I. for 1 year each. A1, A2 and A4 were also

convicted of the offence under Section 120B IPC and

sentenced to R.I. for 5 years each. Accused A3 and

A8 to A10 were acquitted.

3. The two appellants herein challenged the aforesaid

judgment by filing Criminal Appeal No. 873 of 2003

and 432 of 2003 before the High Court. The other

5 accused persons filed Criminal Appeal No.

319/2003, 400/2004, 422/2003, 479/2003. State

of Kerala preferred Criminal Appeal No. 901/2003

against the acquittal of 5 accused persons. All the

appeals were heard together by the High Court and

decided by a common judgment dated

28.6.2004. The appeals filed by the two appellants

herein against the conviction and sentence under

Section 302 IPC read with Section 149 of the IPC

were dismissed. However, the conviction of these

two appellants under Section 120(B) was set aside.

The appeals filed by the State against the acquittal

of A3 and A8 to A10 were also dismissed. At the

same time, the appeals filed by accused no. 4, 5, 6

and 7 were allowed and their conviction as well as

the sentence was set aside. These two appeals have

been filed by the two appellants against the

judgment of the High Court rendered in Criminal

Appeal No. 873 and 432 of 2003.

6

4. We have heard the learned counsel for the parties.

5. The submissions made by the learned counsel for

the appellants before the High Court have been

reiterated before this Court. Learned counsel

appearing for the appellants, Mr. C.N. Sreekumar,

has submitted that the presence of the eye-

witnesses is doubtful. Even if the alleged eye-

witnesses were present, their evidence cannot be

relied upon as it would have been impossible to

identify the assailants as the scene of occurrence

was not a well lit place. Assault which led to the

death of Kochukuttan is alleged to have taken place

at about 7.45 P.M. At the relevant time, there was

load shedding of electricity in Kerala. On the date

of the incident, the load shedding commenced at

about 7.30. P.M. Therefore, it would not have been

possible to identify the appellants. It would also not

have been possible for the eye-witnesses to notice

the weapons which were allegedly used by all

7 members of the unlawful assembly. Learned

counsel further submitted that the eye-witnesses

have failed to state categorically as to which injury

was caused by which appellant and with which

weapon. The learned counsel submitted that the

eye-witnesses account is highly suspicious.

Attacking the evidence of PW1, the learned counsel

has submitted that the witness is the brother-in-law

of the deceased. He has been deliberately

introduced by the prosecution. If he was an actual

witness to the incident, he would have tried to save

his brother-in-law and would have certainly

received some injuries. Apart from this, when the

deceased was being moved to the hospital, this

witness did not accompany the deceased in the

same car. According to the learned counsel, the

evidence of PW2, suffers from the same infirmities.

Learned counsel further submitted that the High

Court having acquitted all the accused from the

charge of criminal conspiracy, there was hardly any

8 evidence of unlawful assembly or common object.

Therefore, a conviction under Section 302 IPC

cannot be recorded on the basis of such evidence.

At best, the appellants could have been convicted

under Section 304 IPC. In support of the

submissions, learned counsel has relied on three

judgments of this Court, viz.,

(1) Siri Kishan and Others Vs. State of Haryana,

(2009) 12 SCC 757

(2) Mummidi Hemadri and Others Vs. State of

Andhra Pradesh, (2007) 13 SCC 496

(3) Chanda and Others Vs. State of U.P. and

Another, (2004) 5 SCC 141

6. Learned counsel further submitted that in any

event, the evidence of the eye-witnesses cannot be

believed as there was no identification parade held

by the investigating officer to identify the accused

persons, who have actually committed the offence.

It is further submitted by the learned counsel that

9 the identification of the appellants in the Court is of

no consequence as the appellants along with the

other co-accused had been shown to the witnesses

in the police station. Their weapons were also

shown to the witnesses. As a result of these

infirmities, the co-accused of the appellants have

been acquitted. Therefore, on the principle of

parity, the appellants also deserved the benefit of

doubt. According to the learned counsel, apart from

the unsatisfactory identification of the appellants,

the case of the prosecution has not been supported

by PW6 to PW10, who were having shops in the

neighbourhood at the junction where the assault

had taken place. Therefore, it was submitted that

the very genesis of the assault has not been proved.

7. On the other hand, Mr. R. Sathish, learned counsel

appearing for the State of Kerala submitted that the

trial court as well as the High Court has given

concurrent findings. The evidence having been

10 appreciated twice, by the trial court as also the

High Court, does not leave any iota of doubt as to

the involvement of the appellants in the murder of

the deceased. He has submitted that the first

information report was registered on the basis of the

first information statement given by the brother-in-

law of the deceased, PW1 very soon after the

incident. The consistent story given by PW1 was

fully corroborated by the eye-witnesses account of

the PW2. The conspiracy has been duly proved by

the evidence of PW3. He has further submitted that

the submission of the learned counsel with regard

to the place of assault being not properly lit is

factually incorrect because the Veliyam junction

where the murder took place is a very busy place

and well lit throughout the night. Learned counsel

further submitted that the injuries which caused

the death of Kochukuttan have been specifically

pointed out by the medical evidence in the inquest

report as also in the postmortem report. Coming to

11 the evidence with regard to the identification of the

appellants, learned counsel submitted that any

infirmities in not holding the identification parade

would be totally irrelevant in case of the appellants

as they were previously well known to PW1 and

PW2. The evidence of PW1 and PW2 has been duly

corroborated by the evidence of other eye-witnesses

PW4 and PW5. So far as the submissions with

regard to the non-identification of the weapons and

the non-attribution of the particular injuries

to the appellants, learned counsel submitted that

their participation is such that they would not be

entitled to the benefit of the very limited exception

which is permissible to a by-stander in a charge

under Section 149 IPC. Learned counsel further

submitted that this is a clear case of enmity as the

deceased and CW-11 had attacked appellants on

the night before the murder. With regard to the

load shedding, learned counsel has submitted that

the entire assault incident took place within a span

12 of 3 to 4 minutes. It is alleged to have commenced

at 7.25 P.M. and would have been over by 7.28.

P.M. The load shedding if any does not commence

till after 7.30 p.m. Even otherwise, it is submitted

that on the fateful night of 24.6.1997, it was a

moonlight night, therefore, it would not be a case of

complete darkness at night.

8. We have given due consideration to the rival

submissions made by the learned counsel. The

High Court in the impugned judgment has clearly

observed that the identity of the deceased and the

place of occurrence etc. are not disputed in this

case. Postmortem of the dead body of Kochukuttan

was conducted by PW-18 at 11.40 a.m. on

25.6.1997. Ex. P17 is the postmortem

certificate which shows that there are 20 ante

mortem injuries. PW-16 has opined that the death

was due to injuries sustained to the chest and left

palm, that is, injuries No. 14 to 20 and death can

13 also be due to the cumulative effect of all the

injuries. Both the Courts have concluded that the

medical evidence is consistent with the eye-

witnesses account given by PW-1, PW-2, PW-4 and

PW-5. As noticed above, PW-6 to PW-10 although

cited as eye-witnesses were declared hostile and did

not support the prosecution.

9. The trial court formulated 5 points for

consideration, which are as follows:-

1) Whether the death of Kochukuttan was because of the injuries sustained in the occurrence?

2) Whether the accused persons had inflicted injuries on deceased?

3) Whether the accused persons A1 to A4 had conspired together to cause the murder of deceased Kochukuttan?

4) What offence, if any, accused persons had committed?

5) Regarding sentence?

14 On point no. 1, the trial court concluded on the

basis of the findings in the inquest report as follows:

"The inquest on the dead body of deceased was conducted by PW19, sub inspector on the morning on 25.6.1997 at the District Hospital on the direction given by the Circle Inspector, Kottarakara and Ext.P20 is the inquest report prepared by PW.19. In Ext.P20, PW.19 had noted the injuries found on the dead body. By Ext.P20, the cause of death is due to the injury sustained by beating, stabbing and cutting. In Ext.P20, it is stated that as per the information received, the injuries were inflicted on the deceased by A1, A2 and others due to their animosity against deceased Kochukuttan. Ext.P17 is the postmortem certificate prepared by PW16, doctor who has conducted the postmortem examination on the dead body of the deceased. In Ext.P17, 20 ante mortem injuries are noted on the body of the deceased and the cause of death stated in Ext.P17 `due to the injury sustained to the chest and left palm'."

10. In the post mortem report (Ex.P17), the following

injuries were noticed on the deceased:-

1) Incised wound 4.5x2 cm skin deep oblique reflecting a flap backwards on the left side of face, the upper outer and being 4 cm in front of ear.

2) Incised wound 5x1 cm bone deep obliquely placed on the left side of head the lower inner and being 9 cm outer to midline 6 cm.

Above eyebrow.

15

3) Abrasion 2x1 cm on the left side of forehead 2 cm outer to midline and 2 cm above eyebrow.

4) Incised wound 3.5 x 0.5 cm bone deep obliquely placed on the left side of back of head the lower inner and being 5 cm outer to midline and 18 cm above root of neck.

5) Incised punctured wound 3 x 1 x 9 cm.

Oblique on the right side of root of neck, the lower inner blunt and being 10 cm below right ear. The upper outer and was sharply cut. The wound was directed downwards, forwards and the left through the muscle plane.

6) Incised punctured wound 2.5x1x6.5 cm oblique on the right side of root of neck, its lower inner blunt end being 2 cm, above the injury No. 5. The upper outer end was sharply cut. The wound was directed downwards, forwards and the left through the muscle plane.

7) Abraded contusion 2 c 1.5x05 cm. On the front of right shoulder 2 cm inner to its tip.

8) Incised wound 1.8x0.5 skin deep obliquely placed on the right side of front of neck, the lower inner and being 5 cm outer to midline 2.5 cm. Above collar bone.

16

9) Lenior abrasion 7.5 cm. long oblique on the outer front and cuter aspect of right arm the lower inner and being 9 cm. above elbow.

10) Incised wound 7 x 02 x 10 oblique on the outer aspect of right arm the lower inner and being 9 cm above elbow.

11) Lacerated wound 0.8x0.8x1.5 cm on the outer aspect of right arm 0 cm above elbow.

12) Lacerated wound 1x1 cm bone deep on the outer aspect of right arm 2 cm above elbow.

Underneath the humerus was found fractured 4 cm above elbow.

13) Abrasion 1.5x1 cm. on the outer aspect of right elbow.

14) Incised wound 10x1.5x2 cm obliquely placed on the left palm the lower outer and was in the web space in between the middle and ring finger. Underneath the muscle tendon and vessels were found sharply cut.

15) Incised wound 2.5x05 cm skin deep on the back of left ring finger 4 cm. below its root.

16) Incised wound 8x3x3 cm horizontal on the back and outer aspect of left forearm, 9 cm below elbow, underneath the muscles, the radius bone was found cut and separated.

17) Incised wound 9x3.5 cm skin deep at its upper part and 3 cm deep at its lower part oblique with tailing upwards, on front of left

17 side of chest, the lower inner and being 3.5 cm outer to middle and 9.5 cm below the upper end of sternum.

18) Incised wound 11x1.5x0.5 cm oblique on the right side of back of trunk, the lower inner and being 11.5 cm outer to midline 4 cm below root of neck.

19) Incised wound 2.5x1 cm skin deep oblique on the back of right side of trunk, the lower inner end being 11.5 cm outer to midline 9 cm below root of neck.

20) Incised penetrating wound 2.5x1 cm obliquely placed on the back of left side of trunk, the lower inner sharply cut end was 5.5 cm outer to midline and 7 cm below root of neck. The outer end of the wound showed splitting of the skin. The chest cavity was scan penetrated through the Vth intercostal space, after cutting the upper border of the Vth rib. The upper lobe of the back aspect of the lung was scan punctured 2x05x4 cm. The left chest cavity contained 300 ml. of fluid blood. The track of the wound was directed downwards and forwards to the right. The total minimum depth of the wound was 14 cms."

18

11. The trial court also noticed that PW-16, the doctor,

who conducted the postmortem examination, stated

"that the death was due to the injuries sustained to

the chest and the left palm, that is, injuries no. 14

to 20". These injuries were caused by sharp cutting

weapons such as sword or chopper. Thus, the

inquest report (Ex.P20) and the postmortem report

(Ex.P17) would clearly show that Kochukuttan died

as a result of the injuries sustained in the fatal

assault by the appellants and the other co-

accused.

12. The trial court on the basis of evidence given by the

eye-witnesses concluded that the participation in

the assault by appellants herein is proved beyond

doubt. The conspiracy was held to be proved on the

basis of the evidence given by PW3. On the basis of

the findings, the trial court convicted the two

appellants along with the other co-accused as

noticed above.

19

13. The High Court on a re-examination of the entire

body of the evidence has also concluded that the

ocular evidence of PW1 cannot be discarded simply

on the ground that he is the brother-in-law of the

deceased. The High Court has also held that there

is clear evidence that both the appellants had

participated and formed an unlawful assembly with

a common object to commit the murder of the

deceased. The High Court, therefore, found that

there is clear evidence with regard to the appellants

having committed the offence under Section 149

IPC.

14. A perusal of the evidence of PW1 leaves no manner

of doubt about the entire sequence of events. He

has graphically recounted the arrival of the

assailants in the jeep. He even gave the sequence

and the order in which they had advanced towards

Kochukuttan. He has stated in categoric terms that

20 he had known the appellants herein for a number of

years. He had seen the others in the vicinity and at

the Veliyam junction. He has categorically stated

about the participation of both the appellants. He

has named both the appellants in the first

information statement. He has given a graphic

account of the injuries caused by both the

appellants. He has also narrated how the accused

went away in the jeep after inflicting mortal injuries

on the deceased. He also talks about the load

shedding which according to him commenced from

7.30 p.m. He further narrated that the car in which

the injured Kochukuttan was being taken had

developed electrical problem and that the deceased

had to be removed to a jeep. He has categorically

stated that by reason of enmity, A1 and A2 together

have murdered his brother-in-law. He identified the

weapons wielded by the appellants. He could also

recognize the apparels worn by the accused with

clear distinction. In his examination, he also stated

21 that the incident was clearly seen in the street light

and light of the nearby shops. He stated that at

that time, 3 bulbs were glowing over the shop where

the incident happened. There was also Mercury

Street light. The incident could be seen clearly. He

also stated that the vicious assault was the result of

instigation of A2. This witness was cross-examined

at length. In his cross-examination, he has

stated that deceased Kochukuttan was a Marxist

party worker. He reiterated that he has stated

before the police that A1 had taken a sword which

was concealed at the back of his waist and had

stabbed at the left side of the head of the deceased.

He also went on to say that A2 also stabbed

Kochukuttan on the left side of his chest pursuant

to which the deceased had fallen down to the road

from the cement thinna. Such deposition of

PW1 also gets strength from the seizure of

MOs Nos. 13 and 14, i.e., portion of blood stained

cement and portion of removed cement without

22 blood respectively. He also reiterated that he had

narrated the acts done by each and every accused.

He reiterated that he is able to identify all the

accused persons. In the cross-examination, he

seems to have further strengthened the case of the

prosecution. While answering the numerous

questions posed by the defence counsel, he

elaborated that there was previous enmity between

the deceased and the accused persons. So there

was clear motive for the appellants to assault the

deceased. He also stated that the police had not

recorded the version as he had narrated. He had

definitely told the police about the signs for

identification of the accused. He admitted that all

the accused were not the residents of the place of

occurrence. However, the appellants herein were

certainly local residents. He even went on to

narrate that the deceased told him about 2

weeks ago that the appellants had attempted to kill

him through hired people. He categorically states in

23 the cross-examination that the entire incident of

assault took 3 minutes. He also stated that the

deceased used to go to the junction quite regularly

by about 7.00 p.m. and he would usually go home

by 9 p.m.

15. In our opinion, the trial court as well as the High

Court correctly relied upon the unflinching,

coherent and consistent evidence given by PW1.

The evidence given by PW1 has been corroborated

by PW2 in every material particular. From the

above narration, it becomes apparent that the

submission with regard to the scene of crime not

being well lit is without any substance. Similarly,

the criticism with regard to the identification parade

not having been held is of no consequence. PW1

and PW2 have clearly stated that the appellants

herein were previously known to them. PW1

certainly even knew about the previous enmity

between the deceased and the appellants.

24

16. We see no reason at all to disbelieve the evidence of

the eye-witnesses. The weapons used by the appellants

and the injuries caused have been specifically mentioned

by PW1 and PW2. There were 20 ante mortem injuries on

the deceased. Recoveries of the swords used by them

were made at the instance of the appellants. Recoveries

of other weapons, clothes worn by the accused on the

day of the assault were also made at the instance of the

other accused. As stated above, medical evidence also

leads to the conclusion that the death has resulted from

the injuries caused by the appellants and the other

accused with their respective weapons. In view of the

proven facts, in this case as noticed by the trial court, the

High Court and by us above, it becomes evident that the

appellants had acted with a common object to eliminate

the deceased.

This Court delineated the circumstances in which

constructive liability can be fastened on the accused, in

25 the case of Bhagwan Singh Vs. State of M.P., (2002) 4

SCC 85, wherein it was observed:

"9. Common object, as contemplated by Section 149 of the Indian Penal Code, does not require prior concert or meeting of minds before the attack. Generally no direct evidence is available regarding the existence of common object which, in each case, has to be ascertained from the attending facts and circumstances. When a concerted attack is made on the victim by a large number of persons armed with deadly weapons, it is often difficult to determine the actual part played by each offender and easy to hold that such persons who attacked the victim had the common object for an offence which was known to be likely to be committed in prosecution of such an object. It is true that a mere innocent person, in an assembly of persons or being a bystander does not make such person a member of an unlawful assembly but where the persons forming the assembly are shown to be having identical interest in pursuance of which some of them come armed, others though not armed would, under the normal circumstances, be deemed to be the members of the unlawful assembly. In this case the accused persons have been proved to be on inimical terms with the complainant party. The enmity between the parties had been aggravated on account of litigation with respect to the dispute over the mango trees. Accused persons who came on the spot are shown to have come armed with deadly weapons. The facts and circumstances of the case unequivocally prove the existence of the common object of such persons forming the unlawful assembly who had come on the spot and attacked the complainant party in consequence of which three precious lives were lost. The High Court was, therefore, justified in holding that the accused persons, involved in the occurrence, had shared the common object."

(emphasis supplied)

The aforesaid proposition was further reiterated in the case of

26 Chanda Vs. State of U.P., (2004) 5 SCC 141:

"8. The pivotal question is applicability of Section 149 IPC. The said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section

149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141."

17. In the present case we are unable to accept the

submission that the appellants were perhaps unaware

that the murderous assault, intended to be committed by

them, would, in all probability, cause the death of

Kochukuttan. We have earlier noticed that both the trial

court as well as the High Court have considered the

specific injuries caused by the appellants with swords.

As noticed above, there were 20 ante mortem injuries on

the deceased. According to the opinion of the doctor, the

27 death was due to injuries caused on the chest and on the

left palm. It is further observed that the death could also

have resulted from the cumulative effect of all other

injuries. Therefore, there is no manner of doubt that

Kochukuttan died as a result of injures caused by the

appellants along with the other accused.

18. We also do not find any substance in the

submission of the Learned Counsel of the appellant that

since all the other co-accused have been acquitted; on

the ground of parity the appellants herein also deserve to

be acquitted. It is always open to a court to differentiate

the accused who had been acquitted from those who had

been convicted. Both the Courts below have applied the

aforesaid principle in distinguishing the case of the

appellants herein from those who have been acquitted.

To remove any doubt we may emphasize that the

appellants herein were known to be associates of the

deceased. They had previous social interaction. For some

time they had been having differences of opinion. This

28 had led to an assault by the deceased and his companion

Murali (CW11) on the appellants herein, namely, Prathap

(A1) and Devakumar (A2). Consequently the appellants

herein had wanted to settle the score with the deceased.

They had a clear motive. This apart, PW1 and PW2 not

only identified the appellants herein as assailants with

swords but also indicated the injuries inflicted by them

on the deceased. On the other hand the accused persons

who had been acquitted were not known to PW1 and

PW2. In fact PW1 in the evidence had categorically

admitted that the other accused were not from the

locality but were sometimes seen at the Veliyam

Junction.

19. In our opinion the Courts below rightly declined to

acquit the appellants on the principle of parity. The

power of the Courts to distinguish the cases of one or

more of the accused(s) from the other(s) is far too well

recognized to need reiteration. Still, we may notice the

principle as stated in the case of Gangadhar Behera

29 Vs. State of Orissa, (2002) 8 SCC 381 wherein this

Court observed as follows:

"Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons."

20. In our opinion the trial court as well as the

High Court rightly convicted the appellants as the facts

and circumstances of the case unequivocally prove the

existence of the common object of the appellants. They

had come looking for Kuchukuttan armed with deadly

weapons with the intention of causing grievous bodily

injuries. There was a preplanned attack. They located

him and caused serious injuries with swords, choppers

and other weapons, which led to his death. Thus they

were rightly convicted and sentenced for the offence

under Section 302/149 IPC.

30

21. We are also of the considered opinion that the

concurrent views taken by the trial court as also the High

Court cannot be said to be either clearly illegal or

manifestly erroneous and do not call for any interference

under Article 136 of the Constitution of India.

22. In view of the above, both the appeals are

dismissed.

..................................J. [B.Sudershan Reddy]

...................................J. [Surinder Singh Nijjar] NEW DELHI, AUGUST 27, 2010.

31