Separate Overt Act By Each Accused Need Not Be Proved Once Common Intention Is Established: Kerala High Court Upholds Conviction In Trespass & Assault Case

The Court was hearing a criminal appeal filed by accused Nos. 1 and 2 challenging the judgment of the Additional Sessions Court/Special Court for SC/ST (POA) Act Cases, Mannarkkad, which had convicted them for offences under Sections 452, 341, 326, 427, 506(i) and 308 read with Section 34 IPC.

A Bench of Justice A. Badharudeen observed: “Going by the evidence of PW6, supported by the evidence of PW5 and PW7, the ingredients for the above offences could be found. Even though as argued by the learned counsel for the appellants/accused Nos.1 and 2, the 2nd accused did not do any bodily injury to PW6, he had shared common intention with the 1st accused and the occurrence was the outcome of the said common intention. In Section 34 of the IPC, it has been provided as under:”

The Bench Added: “… the common intention dealt under Section 34 of the IPC is very much established by the prosecution in the instant case and in such a case, there is no reason to read the complicity of each accused in segregation. Otherwise, the prosecution successfully established the ingredients for the offences, as found by the learned Special Judge and therefore, the conviction does not require any interference.”

Advocate Nireesh Mathew appeared for the appellants; Public Prosecutor M.A. Shihab appeared for the State.

Background

The prosecution case was that the accused, owing to animosity arising from a boundary-related dispute, entered the house of the de facto complainant and attacked her. The injured witness was taken to hospital, and the prosecution relied on ocular evidence, medical evidence and seizure of material objects, including the alleged weapon.

The Special Court convicted both accused for house trespass, wrongful restraint, voluntarily causing grievous hurt, mischief, criminal intimidation and attempt to commit culpable homicide not amounting to murder, all read with Section 34 IPC where applicable. The sentences were directed to run concurrently.

In appeal, the accused contended that the evidence of the injured witness and the informant did not establish the charged offences. It was also argued that no specific overt act causing bodily injury was attributed to accused No. 2 and that the Special Judge had erred in applying Section 34 IPC.

The State opposed the appeal, submitting that the injured witness was supported by the informant, an independent neighbour and the medical evidence, including injuries noted soon after the occurrence.

Court’s Observations

The Court first considered the evidence of the informant, who had spoken about the boundary dispute, the accused entering the house, the assault on the injured witness and damage caused to the window panes.

The Court noted: “In fact, no material contradictions were extracted to disbelieve the version of PW5 in fact spoke in support of the occurrence.”

The Court then examined the testimony of the injured witness, who stated that the accused entered the house and that accused No. 1 assaulted her with a stick.

Recording her version, the Court noted: “Accused No.1 was holding a stick in his hand. Accused No.1 beat her on her head and forehead with the said stick. Thereafter, by holding her hand, he outraged her modesty.”

The Court also relied on the evidence of a neighbour, who stated that he rushed to the spot after hearing a hue and cry and saw accused No. 1 beating the injured witness.

The Court recorded: “At that time, accused No.1 was found beating PW6 and he was saying that why they would prevent putting up of boundary wall. Accused No.1 repeatedly beat PW6 and there was injury on her head and blood oozed out.”

The medical evidence was also found to support the prosecution version. The doctor had noted injuries on the injured witness and the Court recorded: “His further version was that the injuries noted in Ext.P2 could have been caused with the stick shown to him as MO1.”

On Section 34 IPC, the Court held that the argument regarding absence of a separate bodily injury by accused No. 2 could not help the defence once common intention was established from the evidence.

The Court relied on the principle that “In order to convict any person with the aid of section 34 it is not necessary to establish that such accused has done some overt act.”

It found that accused No. 2 shared common intention with accused No. 1 and that the occurrence was the result of that common intention.

After upholding the conviction, the Court considered the sentence imposed by the Special Court and declined to interfere with it.

The Court held: “Having noticed the manner in which the crime was committed, there is no reason to interfere with the sentence also.”

Conclusion

The High Court dismissed the criminal appeal and confirmed the conviction and sentence imposed by the Special Court. It cancelled the order suspending the sentence and the bail bonds of accused Nos. 1 and 2.

The accused were directed to surrender before the Special Court to undergo the sentence, failing which the Special Court was directed to execute the sentence.

Cause Title: Majeed and Another v. State of Kerala (Neutral Citation: 2026:KER:64783)

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