SUPREME COURT OF INDIA

Before:- K.T. Thomas and R.P. Sethi, JJ.

Criminal Appeal Nos. 206-207 of 1991. D/d. 18.10.2000.

Pappu & Ors - Appellants

Versus

State of Kerala - Respondent

A. Indian Penal Code, 1860, Sections 34 and 302 - Common intention - Conviction of four accused under Sections 302 and 34 Indian Penal Code - Out of four accused, one inflicted injury on the back of deceased - Two others inflicted knife injuries - Fourth one not armed and was only having a torch - All that he did was flash the torch light when incident took place - He would have flashed the torch light to see the incident - Fourth accused could not be attributed as sharing common intention with others - Benefit of doubt given to him.

[Para 5]

B. Indian Penal Code, 1860, Sections 302 and 34 - Common intention - The injuries described in the post-mortem report tallying with the description of the occurrence given by the eye witnesses - The first three injuries were on the neck which cut some vital organs and those injuries really caused the death of the deceased - Conviction under Sections 302/34 passed by the Courts on the three assailants, who inflicted injuries upheld.

[Paras 3 and 4]

ORDER

Four persons were arrayed before Sessions Court for the murder of a man called Baby. The trial Court convicted all the four accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to imprisonment for life. A Division Bench of the High Court confirmed the conviction and sentence. Those four persons are the appellants before us. Prosecution case is that on 11.10.1986 at about 7.30 p.m. all the four appellants chased deceased Baby and first appellant Pappu inflicted a cut with a chopper on his back, second appellant, Thomas and third appellant, Sebastian inflicted cut injuries on the neck and chest with knives. Baby fell down and died on the spot. The role attributed to the fourth accused Devassykutty is that he flashed a torch light presumably to provide light to the other assailants to inflict the injuries.

2. The motive alleged for the said murder is that the daughter of first appellant, Pappu was raped by the deceased and she became pregnant and after the pregnancy was absorted, she had to join a nunnery.

3. The deceased Baby was treated by the prosecution itself as notorious person. The incident was witnessed by three persons (P.W.1 Jayson, P.W.2 Paul and P.W.3 George). It was P.W.1 who lodged the F.I.R. The testimony of those witnesses were considered in detail by the trial Court and the High Court found them acceptable. The injuries sustained by the deceased were described by the Doctor who conducted the post-mortem examination. The first three injuries were on the neck which cut some vital organs and those injuries really caused the death of the deceased. The fourth injury was on the abdomen which penetrated through the liver. The fifth and sixth injuries were not so serious as the other injuries.

4. The injuries described in the post-mortem report are consistent with the description of the occurrence given by the eye-witnesses. We do not find any cogent reason to disturb the finding rendered by the two Courts regarding the credibility of three eye-witnesses. Therefore the conviction passed by the Courts on the three assailants, who inflicted injuries, cannot be dissented from.

5. But the position of appellant No. 1 Devassykutty is different. Admittedly, he did not inflict any injury at all. Admittedly he was not armed with any weapon, muchless any lethal weapon. All that he possessed was a torch light and all that he did was flash the torch light when the incident took place. He would have flashed the torch light to see the incident in the same way as P.W.1 did. More than that cannot be inferred from the broad circumstances of this case. Of course an attempt was made by the prosecution to show that fourth accused Devassykutty had a grudge towards the deceased and therefore he too would have shared the common intention with the other assailants. But the evidence regarding the attributed grudge is too fragile for drawing an inference that fourth accused really entertained a common intention with other assailants. On the conspectus of the evidence, we entertain a reasonable doubt as to the complicity of the fourth accused Devassykutty in the murder of the deceased. The benefit of the said doubt must certainly go to him.

6. In the result, we confirm the conviction and sentence as against A.I- Pappu, A.2-Thomas, A.3-Sebastian but we allow the appeal of A.4-Devassykutty and set aside the conviction and sentence passed on him. We acquit him.

7. As the accused were released on bail by this Court by order dated 16.9.1991 we cancel the bail bond and direct the Additional Sessions Judge, N. Parur to take prompt steps for putting A.1-Pappu, A.2-Thomas and A.3 Sebastian back in jail for undergoing the remaining portion of the sentence.

8. These appeals are disposed of accordingly.

Orders accordingly.