IMPORTANT POINT
Injuries combined effect of which might have caused death but which were not on vital parts do not attract section 302, IPC.

JUDGMENT

C.K. Thakker, J. —

1. Leave granted.

2. The present appeal is filed against the judgment and order of conviction recorded by the First Additional Sessions Judge, Pathanamthitta on January 09, 2002 in Sessions Case No. 48 of 1996 and confirmed by the High Court of Kerala on January 19, 2004 in Criminal Appeal No. 131 of 2002.

3. To appreciate the points raised by the appellant herein, few relevant facts may be stated.

4. It was the case of the prosecution that six accused in Sessions Case No. 48 of 1996, in prosecution of their common object to cause death of Balan on account of previous enmity formed themselves into an unlawful assembly on May 25, 1995 at about 1.30 p.m. near the Forest out post in Maniyar Nalumakku and committed an offence of rioting. They were armed with deadly weapons like sword, stick, chopper, crackers, etc. and caused injuries to Balan and also to PW 2 Uthaman. Balan was taken to Medical College Hospital, Kottayam on the same day at about 5.30 p.m. where he was declared dead. All the accused were, therefore, charged for commission of offences punishable under Sections 143, 148, 323 and 302 read with Section 149, Indian Penal Code, 1860 (IPC). They were also charged under Sections 3 and 5 of the Explosive Substances Act, 1908. The Judicial Magistrate, Ranni committed the case under Section 209 of the Code of Criminal Procedure, 1973 since the case was exclusively triable by a Court of Session.

5. In support of the case, prosecution examined 18 witnesses. Certain witnesses who had seen the incident and were examined by the prosecution did not support the prosecution case and were treated ‘hostile’. On the basis of other evidence including the evidence of injured witnesses as also referring to the evidence of (‘hostile’) witnesses coupled with the evidence of PW 3 Rahmathulla Rawther, Forest Guard, who was an independent witness, the trial Court recorded a finding that the incident in question did take place in which Balan was killed. The trial Court, after appreciating the evidence on record held that it was proved that accused Nos. 1, 2, 4 and 6 shared common intention to commit murder of deceased Balan and hence they were liable to be convicted for an offence punishable under Section 302 read with Section 34, IPC. It also held that accused Nos. 1-4 were liable to be convicted under Section 147, IPC. Similarly, accused Nos. 5 and 6 were liable to be convicted under Section 148, IPC. Accordingly, punishments were imposed on them.

6. Being aggrieved by the order of conviction and sentence, all the accused approached the High Court. The High Court again considered the evidence on record and held that conviction and sentence recorded by the trial Court against accused Nos. 2-6 could not be said to be legal and in accordance with law. They were, therefore, ordered to be acquitted of all the charges. So far as accused No. 1 (appellant herein) is concerned, it held that conviction recorded by the trial Court against him for an offence punishable under Section 302, IPC was well-founded and was accordingly confirmed.

7. 0It is against the said order of conviction recorded by the High Court that the appellant has approached this Court.

8. On December 10, 2007, this Court issued notice limited to the nature of offence. The Registry was directed to place the matter for final hearing and accordingly, the matter has been placed before us.

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

10. The learned counsel for the appellant contended that the order of conviction and sentence recorded against the appellant was contrary to law and against the evidence on record. He submitted that when the High Court acquitted accused Nos. 2-6 disbelieving the evidence of prosecution witnesses, no conviction could have been recorded against the appellant herein on the basis of the same evidence and benefit of doubt ought to have been given to appellant also by acquitting him. Alternatively, it was submitted that when accused Nos.