Kerala High Court: In a batch of criminal appeals filed by the convicted persons in the Sunil Babu Gang Rivalry Murder Case, praying to quash the conviction and sentence passed by the Additional and District Sessions Court, the two judges’ Bench of P.B. Suresh Kumar and Johnson John*, JJ. allowed the appeals of the convicts charged under Section 120-B of the Penal Code, 1860 (‘IPC’) and partly allowed the appeals for those convicted under Sections 120-B, 302, 341, 326 r/w Section 34 of the IPC saying that no case of conspiracy was made out against any of the convicts. The matter in hand emanates from gang rivalry and previous enmity between the gangs operating in Thiruvananthapuram. The deceased and the present convicts were members of different gangs. A prior case of an alleged attack was registered against the deceased and his gang members by the current accused which led to increased animosity between the deceased and the convicts.
The convicted persons entered into a criminal conspiracy to murder the deceased and in furtherance of their common intention, travelled to the deceased with a sword and chopper, inflicting cut injuries and banging the deceased’s head on a bus standing nearby, all of which resulted in the eventual the death of the deceased on the hospital bed, two days later.
The matter underwent trial, convicting 4 of the 9 accused under Sections 120-B, 302, 341, 326 read with Section 34 of the IPC and 4 of them under Section 120-B of the IPC. One accused was acquitted under Section 235(1) of the Criminal Procedure Code, 1973 (‘CrPC’) at the Trial Court level.
The Bench placed reliance on Jarnail Singh v. State of Punjab, (2011) 3 SCC 521; Alagupandi v. State of T.N., (2012) 10 SCC 451; Madhu v. State of Karnataka, (2014) 12 SCC 419 and Joginder Singh v. State of Punjab, (2009) 11 SCC 467 while considering the reliability of related and interested witnesses and decided that the relationship with the deceased by itself is not sufficient to suspect their reliability. The Court also mentioned that the witnesses were seriously cross-examined, and nothing was brought out to indicate that they have any direct stake in the outcome of the case so as to affect their credibility.
The contention of the convicts that the death of the deceased was due to accident and not homicide was struck down by the Court on the basis of the appreciation of evidence of various witnesses and the nature of the injuries sustained. The Court also noted that the medical evidence tallies with the evidence of related witnesses on all material particulars and therefore, the prosecution had succeeded in proving beyond reasonable doubt that the death of the deceased was homicidal.
The Court said that, though the FIR is the most immediate and first version of the incident and has great value in ascertaining the truth as it reduces the chances of improvement in the prosecution story, is not a piece of substantive evidence. Therefore, it cannot be held that the prosecution delayed the registration of the FIR for tutoring the informant or improving the prosecution story so as to falsely implicate any of the convicts.
The Bench, placing reliance on State, Govt. of NCT of Delhi v. Sunil, (2001) 1 SCC 652, clarified that there was no obligation on the Investigating Officer to call independent witness from the locality to witness the recovery or to attest the recovery mahazar for the weapons seized and just because some witnesses turned hostile, the evidence of the Investigating Officer regarding the recovery of the material objects on the basis of the disclosure statements of the convicts cannot be rejected. The Court found no merit in the submission that there was an inordinate delay in producing the seized weapons and that the accused should be given the benefit of beyond reasonable doubt for this reason.
With respect to the convicts found guilty under Section 120-B of the IPC, the Court held that apart from the alleged conspiracy, there was no other evidence in the case to connect them with the murder of the deceased, so the conviction and sentence against them was liable to be set aside.
The Court also said that as the prosecution failed to prove the alleged conspiracy, the conviction and sentence against other convicts under Section 120-B of the IPC was also liable to be set aside.
The Bench interpreted Section 71 of the IPC to take the view that where an offence is made up of parts, each of which constitutes an offence, the offender should not be punished for more than one offence, unless expressly provided and that when an offence falls within two or more separate definitions of offences or when several acts, of which one or more than one would, by itself or themselves, constitute an offence constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
In this regard, the Court found that the conviction and sentence for offences punishable under Sections 302 and 326 of the IPC together will be double conviction and sentencing for the same acts committed against the same person is not justified, therefore, there is no need to impose a separate conviction and sentence under Section 326 of the IPC when the convicts are already convicted under Section 302 of the IPC.
Resultantly, the criminal appeals filed by those convicted under Section 120-B were allowed and the criminal appeals filed by the rest of the convicts were allowed in part, convicting them for offences punishable under Sections 341 and 302 read with Section 34 of the IPC.
[Binu v. State of Kerala, 2024 SCC OnLine Ker 1380, Decided on 27-03-2024]
*Judgment authored by Justice Johnson John
Advocates who appeared in this case :
For the Appellants: Advocate Abdul Latheef, Advocate Suman Chakravarthy, Advocate Babu S. Nair, Advocate Priyada R. Menon, Advocate Smitha Babu, Advocate P.A. Rajesh, Advocate Shamseera C. Ashraf, Advocate Amjath A.R, Advocate M.P. Madhavankutty, Advocate Shajin S. Hameed and Advocate K. Remiya Ramachandran
For the Respondent: Public Prosecutor E. C. Bineesh
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