LexKRISHNAN AND ANR. versus STATE OF KERALA
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KRISHNAN AND ANR. v. STATE OF KERALA SEPTEMBER 2, 1996 [G.N. RAY AND B.L. HANSARIA, JJ.] Criminal Law ·: Penal Code, 186(}-Sections 34 and 302/34. Common intention-Proof of-Held: establishment of an overt act not essential-Prosecution required to establish that all concerned persons shared . .the common intention-In the circ~nstances of the case, even assuming that accused caused no injury it would be permissible to infer that he shared the common intention with co-accused in causing death. Criminal Trial : Identification-Known person-From close distance--In open field on cloudless stany night-Held : there was no difficulty in such identification. A B c D Tim_e of death-1ncident took place at night-Eye-witness was with E deceased throughout-Deceased did not take food in his presence-Held.: presence of a few rice particles in the stomach of deceased did not raise any doubt about time of incident and also presence of that eye-witness. Bloodstains-Absence of-On Knife used by accused--lnjury caused by accused not on vital part of body but only superficial injury on f orehead--Sub- sequently knife wai thrown in field-Held : It was not unlikely that bloodstains on knife wiped off when it was thrown in the field. The appellants were convicted under Section 302 read with Section F 34 of the Indian Penal Code, 1860 and sentenced to undergo rigorous G imprisonment for life. The deceased was the younger brother of accused No. 1 and accused No. 2 was the sister's son of both the deceased and the said accused No. 1 The prosecution case was that on account of enmity arising out of property dispute, both the accused with a common intention to kill the deceased H 405 406 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R. A were waiting for him under a tree at night on the fateful day. When the deceased accompanied by his nephew, P.W.1, reached the place of incident both the accused jumped out in front of the deceased saying that they had been waiting for the deceased. Thereafter, accused No. 2 inflicted stab injury on the forehead of the deceased with a knife. When P.W. 1 caught B hold of accused No.1 in preventing his further attempt to give stab injury on the deceased and made him to put down his knife on the ground, the first accused proceeded towards the deceased who was trying to escape and gave successive dagger blows and thereafter ran towards the paddy field cutting across the road. When P.W. 1 let loose the grip of the second. accused and proceeded to rescue the deceased, the second accused also ran C away after throwing away the said knife near the place of incident. The trial court did not accept that the prosecution case was proved beyond reasonable doubt and therefore acquitted both the accused. The High Court set aside the order of acquittal passed in favour of the accused. D Being aggrieved the appellants-accused preferred the present appeal. On behalf of the appellants it was contended ~hat the presence of P.W.1 at the place of incident was highly doubtful; that P.W. 1 was with the deceased throughout and it was his positive evidence that the deceased had not taken any food in his presence but still undigested rice particles were E found in the stomach of the deceased; that if the death had taken place at night there was no occasion for presence of rice particles in the stomach of the deceased because the deceased had not taken any food; that non-diges- tion of rice raised a doubt as to the time of the incident; that when the incident took place it was a dark night and, therefore, it was not possible for the witnesses to identify the accused; that P.W. 1 after overpowering F accused No. 2 did not prevent accused No. 1 from stabbing the deceased several times; that such a conduct was unusual; that the knife of accused No. 2 did not contain any blood stain, the absence of which indicated that the. accused No. 1 did not cause any injury to the deceased; that the accused No. 2 gave a knife blow on the forehead and not on any vital part of the G body; that such overt act on the part of accused No. 2 only indicated that he did not intend to cause the death of the deceased; and that for such . action he was not liable to be convicted under Section 302 l.P.C. with the aid of Section 34 I.P.C. On behalf of the respondent it was contended that the incident took H place on a cloudless starry night in an open space in the field and there was KRISHNANv. STATE 40
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