The court clarified that common intention under Section 34 IPC requires clear evidence of prearranged plans, leading to the first accused's conviction for culpable homicide under Section 304 while acquitting the second accused of murder.

JUDGMENT :

Jobin Sebastian, J.

The accused in S.C.No.8/2013 on the file of the Additional Sessions Court-V, Kottayam, have preferred this appeal challenging the judgment of conviction and the order of sentence passed against them for the offences punishable under Sections 324 and 302 r/w 34 of the Indian Penal Code.

2. The case of the prosecution in brief is as follows:

The 1st accused is the son of the 2nd accused and both of them were harbouring animosity towards one Shaji, the deceased in this case. Owing to the said animosity, on 10.08.2011 at 9.30 p.m., on the panchayat road in front of the house of CW4 at Thonippara, the 1st accused, with an intention to kill Shaji, struck him on his abdomen with a stick. Due to the blow when Shaji fell down, the 1st accused repeatedly beat Shaji using the said stick and stamped him. Upon seeing the same, when CW2, the wife of Shaji, intervened to rescue her husband, the 1st accused beat on her head with the stick, thereby causing hurt. In the meantime, the 2nd accused, the 1st accused’s father, who rushed to the scene, grabbed the stick from the hands of the 1st accused and beat Shaji on his head repeatedly, uttering that he would kill him, while Shaji lay on the ground. Both the accused then together caught hold on both the hands of Shaji and dragged him through a mud road that originates from the panchayat road and leads towards the house of the accused and further assaulted him. Due to the severity of the injuries sustained, Shaji succumbed to the same. Hence, the accused are alleged to have committed the offences punishable under Sections 324 and 302 r/w 34 IPC.

3. Upon completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-II, Kanjirappalli. Being satisfied that the case is one triable exclusively by a Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Kottayam, under Section 209 of Cr.P.C. The learned Sessions Judge, having taken cognizance, made over the case for trial and disposal to the Additional Sessions Court-V, Kottayam. On the appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for offences punishable under Sections 324 and 302 r/w 34 of IPC. When the charge was read over and explained to the accused, both of them pleaded not guilty and claimed to be tried.

4. During the trial, from the side of the prosecution, PW1 to PW15 were examined and marked Exts.P1 to P20. MO1 to MO12 were exhibited and identified. After the completion of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C., during which they denied all the incriminating materials brought out in evidence against them. Thereafter, both sides were heard under Section 232 of Cr.P.C., and since it was not a fit case to acquit the accused under the said provision, both the accused were directed to enter on their defence and to adduce any evidence that they may have in support thereof. Thereupon, from the side of the accused, DW1 to DW4 were examined and marked Exts.D1 to D5. Thereafter, both sides were heard in detail, and finally, the learned Additional Sessions Judge found both the accused guilty of the offence punishable under Section 302 r/w 34 of IPC, and they were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- each. I