SHAHUL HAMEED Vs. KERALA STATE

JUDGEMENT

(1.) Altogether 10 accused were charged for offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the Indian Penal Code for having committed the offence of attempt to murder and causing grievous hurt on PW.2. Accused 4 and 6 absconded. Therefore, only the rest of the accused faced the trial. All those faced trial had been convicted for the offences punishable under Sections 143, 147, 148, 324, 326 and 327 IPC and had been sentenced to undergo imprisonment for various terms ranging from one month to 10 years. Therefore, this appeal by the convicted accused.

(2.) It is submitted by the appellants that there was absolutely no evidence on record to be acted upon fasten guilt on the accused. Though the case of the prosecution was that all the accused did have weapon in their hands, even going by the version of PW.9, the investigating officer, three weapons M.Os.1 and 2 and an iron rod, alone were as per Ext.P3. Out of those three weapons, iron rod had never been produced in court. So, the recovery itself is doubtful. It is submitted that the recovery is, admittedly by the prosecution, based on the disclosure statement Ext.P3(a) given by the second accused. But, second accused had used only M.O.1 chopper. Therefore, the recovery of M.Os.1 and 2 choppers and the alleged recovery of iron and cannot be an incriminating circumstance against accused 1, 3 or anyone else. In the absence of recovery, there is no cogent evidence to fasten guilt. There are divergent versions as to the infliction of the injury by the first accused, when PWs.1, 2 and 5 deposed before the court below. According to PW.1- the occurrence witness, the first accused inflicted a cut injury on PW.2; where as PW.2 says that he had only beaten him. The weapon is also not mentioned. So the overt act from the hands of the first accused is not proved. The third accused is said to have used the iron rod. It has never been recovered nor produced before the court. So there was no incriminating circumstance against the third accused. The prosecution also did not have explanation with regard to the non- recovery or non-production of the iron rod said to be used by the accused. Even admittedly by PW.1, and 5, only four persons, accused 1to 4 came first. The others came later. Necessarily, the common object cannot be found against all of them to commit the offence, unless a prior meeting of mind is proved. So, in this case, there arises no question of any situation to fasten guilt on accused 5 to 10, as no overt act from their part has been spoken to either by PW.1 or the injured PW.2. Only PW.5 had spoken about accused 5 and 6, though not definitely. So, there is absolutely no reason to convict accused 5 to 10, the appellants submit. PW.4 doctor had stated that the injury could have been fatal, if not properly attended to in time. So this is not a case coming within the fold of Section 307 IPC.

(3.) It is submitted by the Public Prosecutor that the overt act on the part of accused 1, 2, 3 and 4 had been clearly spoken to by both PWs.1 and 2, the injured. The 4th accused did not face the trial. Even if the 4th accused did not face the trial. Even if the 4th accused is excluded for the time being, the over act in respect of others, viz.,. accused 1 to 3 had been spoken to by both PWs. 1 and 2. They have also spoken to about accused 5 to 10 coming to the scene of occurrence, after the 3rd accused uttered: "finish him". Therefore, a common intention to commit the offence is revealed. When a common object is revealed, all the accused are liable to be convicted, the Public Prosecutor submits. It is submitted that the recovery is so material and incriminating only in the absence of any direct evidence to the common of offence. In other words, if there is cogent and trustworthy evidence of the occurrence witnesses regarding the commission of offence and use of the weapons, the absence of recovery cannot affect the prosecution. Altogether, there were 9 injuries on the injured, two of them were bleeding. There were fractures as well. In such circumstances, it was a clear case of attempt to murder. So, there is no reason to interfere with the conviction or sentence, submits the public prosecutor.