SHAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellants, accused 1 to 4, along with two others faced trial for the offences punishable under S.143, 147, 148, 342, 449 and 302 of the Indian Penal Code, read with S.149 thereof. Accused 5 and 6 Were acquitted and the appellants were found guilty, convicted and sentenced to undergo rigorous imprisonment for six months under S.143, for one year under S.148, for another term of six months under S.342, again for two years under S.449 and to undergo life imprisonment and to pay a fine of Rs. 10,000 with a default sentence under S.302 read with S.149 I.P.C. This is under challenge in this appeal.

(2.) THE prosecution alleged that at about 3 p.m. on 31-12-2000, the accused persons, carrying deadly weapons like M. O. 1 chopper, M. O. 2 series iron rods, M. O. 3 iron pipe and wooden sticks trespassed into the oil mill where the victim Usman @ Haneefa was working. He was sitting on M. O. 4 chair. All the accused beat him and finally, the first accused inflicted three cut injuries on his head with M. O. 1 chopper. P. Ws. 1 and 2 were present at that time at the scene of occurrence. P. W. 1, along with P.W.5 who came there, took him to the nearest hospital where it was declared that he was dead. PWs 14 and 15 conducted investigation and P. W. 16 laid the charges.

(3.) IT is contended by the appellants that P. W. 1 could not have identified the assailants as he did not have any acquaintance with them and as he was a person who had come from Kannur to visit the deceased, his relative. Even according to P.W. 2 also, all except the first accused were strangers and there was no occasion for her to identify the accused. She had also not seen the entire incident, even admittedly by her. So, the appellants cannot be found guilty relying on their evidence. The case of the prosecution was that all the accused came together to launch the attack. But P.W. 5 had categorically deposed that accused 2 and 3 had gone to his residence, the nearest house of the mill, in search of the first accused. This reveals that all the accused had not come together. Even according to P. W. 1, all of them came to the scene of occurrence hiding the weapons in their hands. Therefore, each and every one of the accused did not know the nature of the weapons in the hands of the others. So, accused 2 and 3, who had allegedly enquired with P.W.5 about the whereabouts of the first accused, did not know the nature of the weapon hidden by him and the others. Therefore, they did not have a common object to cause the injury that was inflicted by the first accused. So, accused 2 onwards cannot be roped in the offence with the aid of S.149 I.P.C., as they did not share the object which the first accused did have. So, on any count, accused 2 to 4 cannot be found guilty of the offence under S.302 I.P.C. with the aid of S.149 thereof. With regard to the overt act committed by accused 2 onwards, there is no cogent piece of evidence even coming from P. Ws. 1 and 2 as they could not identify the assailants other than the first accused. So, they cannot be found to have committed any offence at all.