Absence of common intention to kill limits murder convictions under S.302 IPC, shifting liability to lesser charges under S.325 IPC.

1Accused 1 to 3 in Sessions Case No. 77 of 1981 of the Court of Session, Trichur are the appellants in this Criminal Appeal. The Court of Session convicted accused Nos. 1 and 2 under S.302 I.P.C. and under S.302 read with S.34 I.P.C. and sentenced them to undergo life imprisonment. All the accused were also convicted for the offence under S.448 I.P.C. and under S.448 read with S.34 I.P.C. Accused Nos. 1 and 2 were awarded life imprisonment for the offence under S.302 I.P.C. All the accused were awarded simple imprisonment for 3 months for the offence under S.448 I.P.C. read with S.34 I.P.C. There was also a direction that as far as accused 1 and 2 concerned the sentences awarded under S.448 I.P.C. will run concurrently with the life imprisonment.

2 The prosecution case in short is as follows: On the night of 17-3-1981 at about 9.30 p.m. the deceased Jose and PWs 1, 4, 5, 6 and 7, the other members of the household were offering prayers. They were living at a place called Pattithadam at Pazhanji. The deceased Jose was sitting on a bench on the front verandah of the house and offering prayers while the others were inside the house. While they were praying, 7 people came there and they beat Jose. Jose cried aloud. Then PW 1 Seemon, his brother, and PWs 5 and 7, his father and mother respectively came out. The accused persons beat Jose with bamboo sticks on forehead, head and arms. The other four who came along with the accused beat PWs 5 and 7 and PW 1 with bamboo sticks when they tried to resist the attack on the deceased. PW 5 sustained an injury on the right scapula while PW 7 sustained an injury on the right hand. Accused and the other persons who accompanied them then left the place.

3 The deceased and the other injured were taken in a taxi to the Kunnamkulam Government Hospital. PW 1 went to the Kunnamkulam Police Station the same night and gave Ext. P1, First Information Statement before PW 14, the Sub Inspector of Police at 11-15 p.m. Crime No. 62 of 1981 was registered against the 3 accused and 4 other persons.

4 Jose succumbed to his injuries on 18-3-1981. On the basis of Ext. P14 report filed by PW 14 S.302 I.P.C. also was incorporated in Crime No. 62 of 1981. Investigation was taken up by PW 15, the Circle Inspector of Police. He conducted the inquest on the dead body of Jose at the Hospital and Ext. P13 is the inquest report. PW 2 conducted the post mortem and Ext. P2 is the certificate. On completing the investigation the charge sheet was filed before the Judicial Magistrate of the First Class, Kunnamkulam who committed the case to the Court of Session, Trichur.

5 Before the Court of Session Exts. P1 to P18 were marked and PWs 1 to 15 were examined on the side of the prosecution while on the defence side Exts. D1 to D18 were marked. Exts. C1 to C4 were marked as Court Exhibits and CWs 1 and 2 were examined as court witnesses. MOs I to III are the material objects produced. Ext. P3 is the wound certificate of the deceased Jose issued by PW 2 while Exts. P4 and P5 are the wound certificates of PWs 7 and 5 respectively issued by PW 2. Ext. P9 is the mahazar for recovery of MO I while Ext. P10 is the mahazar for the recovery of MO II.

6 The court of session came to the conclusion that Jose died because of the injuries inflicted on him and that the cause of death was shock and haemorrhage because of the injuries caused and the injuries can be caused by beating with hard object like the bamboo sticks. The court of session further came to the conclusion that accused 1 and 2 were individually and collectively responsible for causing the death of Jose and that they were hence guilty of the offence punishable under S.302 I.P.C. and under S.302 I.P.C. read with S.34 I.P.C. They were also found responsible for house trespass punishable under S.448 I.P.C. As far as accused 3 is concerned, the court came to the conclusion that since no overt act has been alleged against him in the charge sheet he cannot be held responsible for the off