KOCHU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner [first accused] has been convicted by the District Magistrate of Tellichery for an offence under S.332, IPC., and has been sentenced to rigorous imprisonment for 6 months. On appeal to the Sessions Judge of Tellicherry the conviction and sentence were confirmed. Along with him his wife and son were also prosecuted and the charge against them was under S.332 read with S.34, IPC.

(2.) On 9-3-62 Pw. 1 the Forest Guard was on patrol duty. He met the first accused with an unlicensed gun and arrested him. He was then being taken to the Forester. When they reached the house of the first accused he called out his wife and son and the wife armed with a billhook and the son armed with a stick rushed up. They threatened Pw. 1 and pushed him down and the first accused assaulted and beat him. Pw. 2 who was accompanying Pw. 1 witnessed the occurrence. The learned District Magistrate acquitted accused 2 and 3 but found the first accused guilty and convicted him of the offence under S.332, I. P. C.

(3.) In view of the concurrent findings of the courts below, learned counsel appearing for the petitioner rightly did not challenge the finding of fact. On the rulings in Krishna Govind Patil v. State of Maharashtra [ AIR 1963 SC 1413 ] the learned counsel contended that the conviction of the petitioner is clearly unsustainable. What is stated is that when accused 2 and 3 were acquitted as the evidence was not acceptable the effect of the finding is that they did not take part in the offence and so they did not conjointly act with the petitioner in committing the offence under S.332, IPC., and if that be so the petitioner also cannot be convicted. In the case cited, four persons were charged under S.302 read with S.34 IPC. for causing the murder of the deceased in furtherance of the common intention and all of them were also charged Separately for the substantive offence under S.302 IPC. The Trial Court on the evidence acquitted all the accused. The State preferred an appeal against the order of acquittal for the offence under S.302 read with S.34, IPC. but no appeal was preferred against the order of acquittal under S.302, IPC. The High Court confirmed the acquittal of accused 1, 3 and 4 but convicted the second accused of the offence under S.302 read with S.34 IPC. The conviction was set aside by the Supreme Court and their Lordships observed that the effect of acquittal of the three accused was that they did not conjointly act with the fourth accused in committing the murder and the fourth accused could not be convicted under S.302 read with S.34 IPC., for having committed the offence jointly with the acquitted persons.