Point of Law : Mere participation in crime with others is not sufficient to attribute common intention to one of others involved in crime.

JUDGMENT :

These are appeals filed under Section 374(2) of the Code of Criminal Procedure. Third accused in S.C.No.1872 of 2004 on the file of the Additional Sessions Court, Fast Track III, Thiruvananthapuram (originally arrayed as the 4th accused) has preferred Crl.Appeal No.944 of 2006. Similarly, the second accused (who originally arrayed as the 3rd accused) in the above case has preferred Crl.Appeal No.812 of 2006. The respondent herein is the State of Kerala.

2. Heard the learned counsel for the appellants as well as the learned Public Prosecutor representing the State of Kerala.

3. Summary of the prosecution case shorn off unnecessary details is as under:-

The prosecution case is that on 15.03.2000 at about 3.30 p.m., 15 persons, after concealing deadly weapons like chopper, iron rod etc., reached at Priyadarshini hall at Fort, where abkari auction of toddy shops was conducted. Thereafter, the accused, after sharing common intention, wrongly restrained the defaco complainant and assaulted him by using chopper and iron rod with intention to do away the defaco complainant.

4. On the above allegation, FIR was registered by Fort Police as Crime No.91 of 2000 alleging commission of offences under Sections 324, 332 and 307 read with Section 34 of the Indian Penal and under Section 27 of the Arms Act. Thereafter, on investigation, police laid charge against accused Nos.1 to 4.

5. When the case was committed before the Sessions Court, the same was made over to Additional Sessions Court. Since the original second accused was absconding, the learned Sessions Judge tried original accused Nos.1, 3 and 4 arraying them as accused Nos.1 to 3 in the case. On completing legal formalities, charge for the said offences was framed and the learned Sessions Judge tried the matter. During trial, PW1 to PW12 examined and Exts.P1 to P12 marked on the side of the prosecution. MO1 to MO3 series were also marked.

6. Though the accused were given opportunities to adduce defence evidence, after questioning them under Section 313(1)(b) Cr.P.C., no defence evidence adduced.

7. The learned Sessions Judge appreciated the evidence and finally, found the accused Nos.1 to 3 committed offences under Section 324 and 332 read with Section 34 of IPC. Consequently, they were sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 324 read with Section 34 of IPC and rigorous imprisonment for one year for the offence punishable under Section 332 read with Section 34 of IPC.

8. While assailing the conviction and sentence imposed by the Sessions Court, the learned counsel for the appellants urged that no convincing evidence adduced by the prosecution to fasten criminal culpability upon the appellants and the evidence available does not suggest any complicity or overt acts on the part of the appellants to record conviction as done by the trial court. He urged that in the evidence of PW1, though overt acts against the first accused and the original second accused (who was absconding) were narrated in detail in page No.6, PW1's evidence against the appellants is confined to the effect that they had encouraged the overt acts of original first and second accused. But how the appellants encouraged first and second accused is not disclosed by PW1 in any manner. Apart from this, no overt acts specifically stated by PW1 against the appellants. He also submitted that PW2 another occurrence witness also not stated any overt acts specifically against the appellants.

9. PW4 and PW7, another two occurrence witnesses also turned hostile to the prosecution and they did not support the prosecution case in any manner. PW8 is the doctor, who supported treatment of PW1, who suffered injuries in consequence of the overt acts on the part of accused Nos.1 and 2.

10. On evaluating the evidence available, it could be gathered that the presence of the appellants at the place of occurrence alone is the evidence available against them in this case.

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