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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.HARIPRASAD, M.R.ANITHA, JJ.
Rajesh S/o.Unnikrishnan Nair – Appellant
Versus
State Of Kerala – Respondent
Death Sentence Ref. No.1 of 2017, Crl.A.No.1161 of 2016
Decided on : 17-09-2020
Indian Penal Code, 1860-Sections 143, 147, 148, 149, 323, 324, 302 and 212 ;; The Arms Act, 1959- Section 27;; The Code of Criminal Procedure, 1973- Section 173(2)- Liability for constructive criminality, i.e., liability for an offence not committed by the person charged- The appellant, if proved to be a member of an unlawful assembly formed with the common object of committing offences, could be held liable for the criminal actions of other members of the assembly, it becomes obligatory on his part to challenge the evidence adduced against any member of the assembly, whether dead or alive
Statement of facts:
Six accused persons were charge sheeted by the Assistant Commissioner of Police, Cantonment Police Station, Thiruvananthapuram for offences punishable under Sections 143, 147, 148, 149, 323, 324, 302 and 212 of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959 - The incident which resulted in the registration of crime happened on 11.07.2008. After completing the investigation, a final report under Section 173(2) of the Code of Criminal Procedure, 1973 was filed on 27.01.2009 before the Magistrate having jurisdiction--On the date of framing a charge by the learned Additional Sessions Judge on 30.05.2016, the 1st accused was no more- After trial, the 2nd accused alone was found guilty of offences punishable under Sections 323, 324 and 302 IPC read with Section 34 IPC and Section 27 of the Arms Act read with Section 34 IPC and others were acquitted. Hence this appeal at his instance.
Finding of the court:
Convictions of the appellant under Section 323, 324 and 302 read with Section 34 IPC and Section 27(1) of the Arms Act read with Section 34 IPC are confirmed. Except the death penalty and period of default sentence imposed on the appellant, all other sentences and fine are confirmed. His death penalty is commuted.
Result: Appeal is partly allowed.
JUDGMENT :
Hariprasad, J.
Factual and legal questions arising in this Criminal appeal and Death Sentence Reference are intrinsically interconnected. Hence we heard them together.
2. Six accused persons were charge sheeted by the Assistant Commissioner of Police, Cantonment Police Station, Thiruvananthapuram for offences punishable under Sections 143, 147, 148, 149, 323, 324, 302 and 212 of the Indian Penal Code, 1860 (in short, “IPC”) and Section 27 of the Arms Act, 1959 (in short, “Arms Act”). The incident which resulted in the registration of crime happened on 11.07.2008. After completing the investigation, a final report under Section 173(2) of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) was filed on 27.01.2009 before the Magistrate having jurisdiction. Later, the case was committed to the Sessions Court. It is an admitted fact that the 1st accused was killed on 01.06.2009. Evidently, on the date of framing a charge by the learned Additional Sessions Judge on 30.05.2016, the 1st accused was no more. Needless to mention, accusations in the final report levelled against him stood abated. After trial, the 2nd accused alone was found guilty of offences punishable under Sections 323, 324 and 302 IPC read with Section 34 IPC and Section 27 of the Arms Act read with Section 34 IPC and others were acquitted. Hence this appeal at his instance.
3. Learned Additional Sessions Judge after hearing both sides framed a charge in the following terms:
And in the same transaction, in prosecution of your common object of such assembly, voluntarily caused grievous hurt to Ramachandran (C.W.1) by attacking with a 'sword' and caused simple hurt to C.W.5 and C.W.7 by beating with hands and there by committed offences punishable u/ss 323, 324, r/w 149 of IPC.
And in the same transaction, in prosecution of your common object of such assembly you, 2nd accused along with the 1st accused chased C.W.5 & C.W.7 who took to their heels on seeing the attack on C.W.1, and on doing so, had seen, deceased Santhosh Kumar coming to the house of C.W.1 hearing the commotion, and you the 2nd accused pointed out the deceased as the person you are searching for and asked the first accused to kill him and then the 1st accused stabbed him on his abdomen with the sword and you, A-2 cutting on his head twice with the 'Rambo knife' causing fatal injuries and he succumbed to the injuries and you, the 3rd & 4th accused joined them with the knowledge that they are likely to commit murder of the said Santhosh Kumar and thereby committed offences punishable u/s 302 r/w 149 of IPC.
That you, the 2nd accused used a sharp edged deadly weapon named 'Rambo knife' which was possessed by you without any license and thereby committed offence punishable u/s 27 of Arms Act.
These offences are committed within my cognizance. AND I hereby direct that you be tried by this court on the said charges."
Thereafter, considering the prosecution evidence, consisting of oral testimony of 38 witnesses, 98 documents and 12 material objects, the learned Additional Sessions Judge found the 2nd accused guilty of the offences mentioned above. After hearing him on sentence, the learned trial Judge found that he deserves no mercy and, therefore, he is sentenced, under Section 302 read with Section 34 IPC, to be hanged by neck till he is dead and imposed a fine of Rs.2,00,000/-too. For other offences, various terms of imprisonment and fine
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