Kenny vs State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941 CRA(V).No.1584 of 2013 AGAINST THE JUDGMENT IN SC 612/2011 of ADDITIONALSESSIONS COURT-I,MAVELIKKARA DATED 17-07-2013 AGAINST THE ORDER/JUDGMENT IN CP 83/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA APPELLANT/VICTIM (PW3): PRIYA PRAVEEN, AGED 28 YEARS, W/O.LATE PRAVEEN PUNARTHAM,PONNEZHA,OLAKETTIYAMBALAM P.O,MAVELIKARA BY ADVS. SRI.K.SASIKUMAR SRI.R.ROHITH RESPONDENS/ACCUSED 1, 2 4 AND 5 AND COMPLAINANT:

1 KENNY, S/O.BALACHANDRAN VALIYAVILAYIL VEEDU,VATHIKULAM MURI,THEKKEKARA VILLAGE,MAVELIKKARA 690 107 2 BALACHANDRAN S/O.KRISHNAN,VALIYAVILAYIL VEEDU,VATHIKULAM MURI,THEKKEKARA VILLAGE,MAVELIKKARA 690 107 -:2:- 3 MURALEEDHARAN KALEEKKAL VEEDU,VATHIKULAM MURI,THEKKEKARA,MAVELIKARA 690 107 4 SAHEER DARUL AMAN VEEDU,KANNAMPALLI BHAGOM,KEERIKKAD,ALAPPUZHA DISTRICT 690 508 5 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 31 BY ADVS. SRI.BEN TOM SMT.SABEENA P.ISMAIL SRI.SEBASTIAN PAUL SRI.S.VIJAYAKUMAR (NALLOOR) SR.P.P. SRI.ALEX M. THOMBRA

THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 1.04.2019, ALONG WITH CRL.A.962/2014, THE COURT ON 28.06.2019 DELIVERED THE FOLLOWING: -:3:-

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941 CRL.A.No.962 of 2014 AGAINST THE JUDGMENT IN SC 612/2011 of ADDITIONAL SESSIONS COURT-I,MAVELIKKARA DATED 17-07-2013 AGAINST THE ORDER/JUDGMENT IN CP 83/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA CRIME NO.244/2010 OF Kurathikadu Police Station, Alappuzha APPELLANTS/ACCUSED 1 & 2:

1 KENNY S/O BALACHANDRAN, VALIYAVILAYIL VEEDU, VATHIKULAM MURI, THEKKEKARA VILLAGE, MAVELIKARA NOW AT OPEN PRISON, NETTUKALTHERI, AS CONVICT NO 3117 2 BALACHANDRAN S/O KRISHNAN, VALIYAVILAYIL VEEDU, VATHIKULAM MURI, THEKKEKARA VILLAGE, MAVELIKARA NOW AT CENTRAL PRISON, THIRUVANANTHAPURAM AS CONVICT NO 8208 BY ADVS. SRI.SEBASTIAN PAUL SMT.J.AMULYA SMT.LIZAMMA AUGUSTINE SMT.SABEENA P.ISMAIL SRI.BEN TOM SRI.RON BASTIAN SRI.S.VIJAYAKUMAR (NALLOOR) -:4:-

RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031 BY ADV.SR.P.P. SRI.ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1.04.2019, ALONG WITH CRA(V).1584/2013, THE COURT ON -:5:-

JUDGMENT

Shaffique, J.

Crl.Appeal (V) No. 1584 of 2013 has been preferred by Priya

Praveen who is the wife of the deceased. She is challenging the verdict of the learned 1st Additional Sessions Judge, Mavelikkara in S.C. No. 612 of 2011 in C.P. No.83 of 2010 of Judicial First Class Magistrate Court - I, Mavelikkara arising out of Crime No.244 of 2010 of Kurathikkadu Police Station by which accused nos. 3, 4 and 5 (for short 'A3', 'A4' and 'A5') were acquitted of all charges and accused nos. 1 and 2 (for short 'A1' and 'A2') were acquitted of offences under Sections 120(B), 323, 307, 201 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC'). A3 was absconding at the trial of this case and the case against him was split up and renumbered as S.C. No. 584 of 2013. The said case was tried along with this case and as already stated, A3 is acquitted of all charges. According to the victim, there are clinching evidence against A3 to A5 also and Court below erred in acquitting them. Also, accused nos. 1 and 2 were awarded with inadequate sentences for offences for which they were found

-:6:- guilty and hence it need to be enhanced so that it would meet the ends of justice. The compensation awarded for her by the Court also is meagre and she is seeking for an enhanced amount as compensation.

2. Crl.Appeal No.962 of 2014 is preferred by A1 and A2

challenging the judgment of conviction and order of sentence passed against them by which they were found guilty by the trial Court for offences under Sections 449, 341, 324, 302, 506(ii) read with Section 34 of IPC and both of them were sentenced to suffer rigorous imprisonment for five years each and to pay a fine of `10,000/- each in default of which to undergo imprisonment for one year each under Section 449 read with 34 of IPC; simple imprisonment for 15 days each under Section 341 read with Section 34 of IPC; rigorous imprisonment for two years each and to pay a fine of `7,500/- each with a default stipulation of imprisonment for six months for offence under Section 324 read with 34 of IPC; rigorous imprisonment for five years each under Section 506(ii) read with Section 34 of IPC and also to undergo imprisonment for life by each accused and to pay a fine of `1,00,000/- each with a default directive of rigorous imprisonment

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for two years each for offence under Section 302 of IPC. Sentences were directed to run concurrently. Out of fine amount, if realized, `2,00,000/- (Rupees Two Lakhs only) was directed to be paid to PW3 Priya Praveen as compensation under Section 357(1)(c) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.') and `15,000/- (Rupees Fifteen Thousand only) was directed to be paid to PW2 Aneeshkumar V. as compensation under Section 357(1)(b) of Cr.P.C. Both appeals were heard together and it would be only appropriate to dispose of both these appeals together as they arise out of the same incident.

3. The case of the prosecution, is brief, is as follows: On 23/05/2010, A1 and A2 restrained Ratheesh Kannan

(PW5) and tried to snatch away his chain and the said incident

was informed to Praveen Kumar @ Unnikuttan (the deceased herein) by PW5 and Praveen Kumar questioned A1 about it and there was a quarrel between them in connection with the same. In pursuance of that incident, on 15/06/2010, A2 who is the father of A1 and Praveen Kumar had some quarrel. Due to these animosities, A1 and A2 and their colleagues A3 to A5 entered into a criminal conspiracy at 02.45 P.M. on the same day at the house

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of A1 and A2 to murder Praveen Kumar. In furtherance of the said conspiracy, with the intention and preparation to kill Praveen Kumar, A1 with a knife in his custody along with A2 and A3, reached at the house of A4 at about 03.30 P.M. on the same day in a motor cycle bearing Reg.No. KL 4L/470. Thereafter, A1 to A4 travelled in KL-31 A/5775 car in the possession of A4 driven by A4 and reached in front of Punartham, House No.XIV in Thekkekara Panchayath bearing No.350, at about 04.00 P.M. and A4 stopped the car in front of the house and dropped A1 to A3 there. Thereafter, A1 to A3 trespassed into the sit out of Punartham house situated on the south-eastern corner of the said house and

A1 by uttering the words “നയ യ അനന ഷച നടകക ന ട , ഇനയ

നയ ഞൻ ജവനന യട യവന കതയ ട " (you have been searching for me, I will not permit you to live hereafter) turned towards Praveen Kumar with knife and on seeing the same, Praveen Kumar jumped to the courtyard of his house and thereupon, A2 wrongfully restrained Praveen Kumar by catching hold of him and then A1 stabbed Praveen Kumar on the right side of his chest forcefully with knife and caused injury to him. Praveen Kumar fell down lying on his face. Thereafter, A3 hit Praveen Kumar with

-:9:-

MO2 'L' shaped stick (Pathal) and A1 again stabbed thrice on the back of Praveen Kumar with knife. On seeing the same, PW2 Aneesh tried to ward off the stab and hence it caused injury on the back middle and on the left back and also on the left leg inner aspect of Praveen Kumar and also on the index finger of PW2. At that time, A3 with MO3 stick, hit PW2 twice on his back and A2 hit on the chest and back of PW2 with hand causing pain. A1 also stabbed PW2 with MO1 knife on his abdomen and on the back of right shoulder. When PW1 and others tried to intervene and prevent the accused from overt acts, A2 and A3 aired the sticks and A1 waived the knife threatening to kill them. Praveen Kumar was taken to Sovereign GEMS Hospital at Mavelikkara soon and he succumbed to the injuries there. A5 waited with KL-29 B/6664 Maruthi Swift Car at PIP canal crossing which was situated 452 metres south which was situated about 73.25 metres east from Punartham house. In that car, he took A1 to A3 and helped them to escape. A2 set fire his dress to destroy evidence. A4 after the incident drove his car towards east and escaped. Hence the accused who are five in numbers tried to commit offences under Section 120(B), 449, 323, 341, 324, 506(ii), 307, 302, 201 read

-:10:- with 34 of I.P.C.

4. Learned counsel appearing for and on behalf of A1 and

A2 submitted that the case against them are false and Court below erred in convicting them. A3 to A5 are acquitted by the trial Court. Evidence adduced by PW1, PW2 and PW3 is not believable. They are highly interested witnesses. Prosecution case is not backed by medical or other scientific evidence. Motive for the crime is not proved by the prosecution. The genesis of the

incident is suppressed by the prosecution. Prosecution consistently improved their version from time to time. Ext.P25 is the wound certificate of PW2 who is allegedly present at the time of incident. Ext.P25 is seen timed 04.15 P.M. The version in it is seen as attack by identifiable persons who are five in numbers. Ext.P28 wound certificate of A2 dated 15/06/2010 at 04.40 P.M. would show that the incident was the result of attack by six identifiable persons. From FIR to deposition in Court, the version

of prosecution is seen deviated from the real incident. He pleaded to acquit both accused by extending benefit of doubt.

5. On the other hand, learned counsel appearing for the victim argued that though A1 and A2 were rightly found guilty for -:11:-

offences of a grave nature by the trial Court, but the punishment imposed on them were not adequate. A1 to A5 entered into a criminal conspiracy and it was in furtherance of the same, they reached the house of the deceased armed with MO1 knife, MO2 and MO3 sticks, which they managed to get from the spot itself. PW3 is the most natural witness who is none other than the wife of the deceased. PW2 is an injured eyewitness. PW1 fully corroborate the version of PW2 and PW3. Court below ought to have considered the evidence in its entirety and should have found A3 to A5 guilty for the offence charged. Oral evidence adduced by the prosecution is corroborated by medical and other evidence. He sought to convict A3, A4 and A5 also for the charges levelled against them. He sought for enhancement of punishment for A1 and A2 for the offences they were found guilty and also pleaded to convict them for offences for which they were acquitted by the trial Court.

6. Prosecution, to prove their case, examined PW1 to

PW42 as witnesses, marked documents Exts.P1 to P83 and identified MO1 to MO18 objects. After closure of prosecution evidence, all accused were questioned under Section 313 of -:12:-

Cr.P.C. They denied all incriminating circumstances and pleaded innocence. A1 filed a written statement in which he stated that on 15/06/2010 at about 03.30 P.M., near the culvert situated on the PIP canal which is situated on the eastern side of the house of the deceased Praveen Kumar, there was an assault between said Praveen, PW2, one Sudheesh and two other persons on one side and his father and four other persons who are not accused in this case on the other side. In that commotion, deceased Praveen Kumar and PW2 sustained injury. Punartham house is situated about 100 metres west from the culvert. From the said culvert towards west, up to Punartham house, the blood of Praveen Kumar and PW2 were seen dripped in drops and also in clusters. If the grouping and sampling of those blood were done, truth would have come out. The said aspect was informed by A1 to the Investigating Officer at the time of his arrest. The alleged incident did not take place in front of or near Punartham house as alleged. On that day, A1 was not at all present in Mavelikkara Taluk. The same could be confirmed by verifying his mobile SIM card location. A2 who is the father of A1 also filed a statement almost similar in content. A4 in his written statement submitted that he

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has no connection with the incident and he had gone to Huda Trust Hospital at Harippad on 15/06/2010 in connection with treatment of his mother who was seriously ill at that time. He reached back to his place at 05.30 P.M. on that day and came to know that on the west of Vathikulam temple, a quarrel had taken place and some people sustained injuries and a person by name Praveen died. He had no connection with the accused. KL-31 A/5775 car is owned by his wife. He did not know driving during the time of incident. On 17/06/2010, a police officer took the car along with him to the office of C.I. and he was falsely implicated in the case. A5 in his additional statement stated that he is a head-load worker at Kayamkulam market and he is a member of CITU. On 22/06/2010, two policemen came and asked him to come to the police station. At that time the investigating officer in the case at hand who was previously C.I. of Police, Kayamkulam was present there. After some time, he took him in a jeep. He does not know driving and had no licence. He was not a member in the conspiracy as alleged. While Circle Inspector Harikrishnan was working at Kayamkulam, in connection with murder of a businessman, he illegally kept in custody some of the members

-:14:- belonging to A5's union and arrested them. In response to the same, there was a picketing in front of C.I. office and Police Station at Kayamkulam led by A5. Out of that vengeance, he is falsely implicating A5 in this case.

7. From the side of defence DW1 was examined. Exts.D2 and D2(a) were marked as contradictions.

The questions to be decided are: i. Whether the death of Praveen Kumar was a homicide as alleged by the prosecution and found true by the trial Court? ii. Whether the finding of the trial Court that A1 and A2 are liable to be convicted for offence under Sections 449, 341, 324, 302, 506(ii) read with Section 34 of IPC is justified in the light of available evidence? If they are found guilty, whether the punishment imposed on A1 and A2 was inadequate? iii. Whether the finding of the trial Court that A1, A2, A3, A4 and A5 are not liable to be convicted for offence under Sections 120(B), 323, 307, 201 read with Section 34 of IPC is justifiable? -:15:- iv. Whether the finding of the trial Court that A3, A4 and A5 are not liable to be convicted along with A1 and A2 for offence under Sections 449, 341, 324, 302, 506(ii) read with Section 34 of IPC is justifiable? v. Whether the compensation awarded to the victim who is the widow of the deceased aged 27 years having a child is meagre and to be enhanced?

8. To answer these questions, it is necessary to look into the evidence on record in detail.

9. This is a case in which direct evidence is available. Out of the evidence adduced in the case, relevant ones, in short, are as follows: PW1 to PW3 are occurrence witnesses out of which PW2 is

an injured eyewitness and PW3 is the wife of the deceased. PW4 also deposed to the crucial circumstance regarding the incident. PW5 Rakesh Kannan was examined to adduce evidence to prove the motive for the commission of the crime. PW6 is an attestor to Ext.P2 inquest report. He identified MO11 kaily and MO12 undergarment of the deceased. PW7 is also a witness to the inquest and he received the dead body of the deceased as per

-:16:-

Ext.P3 receipt from PW29 police constable. PW30 is the CPO who guarded the scene of crime. PW10 is an attestor to Ext.P6 scene mahazar and he identified two sticks (MO2 and MO3), MO8 chappal and MO9 spectacles seized from the place of occurrence. PW15 is the owner of the vehicle in which the deceased and PW2 were taken to hospital. PW20 is the then Village Officer, Thekkekara and he issued Ext.P13 scene plan. Ext.P14 ownership and possession certificate of the house of the deceased is also proved through him. Ext.P15 is the possession certificate of the house of A4. Ext.P16 is the possession certificate of the property of A2. PW21 is the Village Officer, Keerikkadu who issued Ext.P17 possession certificate of the house of Darul Aman. PW22 issued Ext.P18 certificate showing ownership of the house of the deceased. PW23 is the Panchayath Secretary of Krishnapuram Grama Panchayath during September 2010 and he issued Ext.P19 certificate showing ownership of A3's house. PW24 is the Motor Vehicle Inspector, Mavelikkara and Ext.P20 is the certificate issued after inspecting car bearing Reg.No. KL-31 A 5775. Ext.P21 is the certificate issued by him after inspecting car bearing Reg.No. KL-29 B 6664. Ext.P22 is the certificate with respect to

-:17:-

motor cycle with Reg.No. KL-04 L 470. PW26 is the then Joint RTO, Mavelikkara during June 2010 and he had issued Ext.P33 RC particulars of KL-31 A 5775 Maruti Alto car, as per the same the owner of the car is one Radhamony, w/o Muraleedharan (A4), Kaleeckal, Vathikulam. PW34 conducted search in the house of A1 and A2 on the date of incident itself as per the instruction of PW42. Ext.P32 is the search list and Ext.P34 is the search memorandum. PW31 is the Doctor at Karunagappally Hospital who examined A2 at about 04.40 P.M. on the date of incident. Ext.P28 is the wound certificate of A2 and it is seen that the alleged history is assault by six identifiable persons near Olaketty temple at 04.00 P.M. PW11 is an attestor to Ext.P7 mahazar prepared at the time of collecting some dry leaves and papers containing blood stains. Ext.P24 is the wound certificate of the deceased issued by PW27. In Ext.P24, history and alleged cause of injury is stated as stabbing by five identifiable persons. The wound certificate of PW2 is marked as Ext.P25 where alleged history is written as stabbing by five persons at the house of Praveen at around 04.00 P.M. PW32 conducted the autopsy of the deceased and issued Ext.P29 post-mortem certificate. PW18 is a

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witness to the recovery of MO4 pant, MO5 shirt and MO14 mobile phone which were recovered at the instance of A1. MO1 knife is recovered by PW42 at the instance of the 1 st accused based on his disclosure statement Ext.P34(a) as per Ext.P34 mahazar. Ext.P83 is the forensic report. It shows that MO1 is stained with human blood. Item no.4 in Ext.P83 is the Jeans (MO4) and item no.3 is a half sleeve shirt (MO5) recovered based on Ext.P11(a) disclosure statement of A1. Both of them contained human blood. Ext.P7 scene mahazar was prepared by PW42. He seized MO8 which is a foot wear (right leg) and MO9 a spectacle from the crime scene as per Ext.P7 mahazar. PW1 identified both the MOs in Court as that of A2. Ext.P12 is the recovery mahazar of MO16 foot wear (left leg) at the instance of A2 for which PW19 is a witness. Ext.P83 shows that MO16 contained human blood.

10. Prosecution has inter alia, two serious specific cases

affecting human body against the appellants as far as the deceased and PW2 is concerned. First one is that A1 committed murder of Praveen Kumar using MO1 knife for which other accused are vicariously liable. Second allegation is that with the same weapon, A1 inflicted deep injuries on PW2 and thereby -:19:- attempted to murder him for which other accused are jointly

liable. While PW2 attempted to run into the house by holding tight the wound on his stomach with his hands, A1 stabbed on his right scapular region. While trying to ward off the stab to the deceased, PW2 also sustained injury on his left index finger. As far as A2 is concerned, the allegation is that he had restrained the deceased wrongfully and thereby facilitated A1 to stab the victims. Another allegation against him is that he fisted PW2 at his back and chest. Coming to A3, he allegedly hit the deceased twice with MO2 'L' shaped stick at the time when the deceased had fallen down on sustaining stab from A1. Further allegation is that A3 also hit PW2 with the same stick and waved the stick to threaten PW1 so that he should not rescue the deceased and

PW2. Since the victim challenged the acquittal of the accused/appellants on the charges for which the trial Court found them not guilty, it would only be appropriate to consider each of them specifically to arrive at a finding.

11. First of all, whether the death of Praveen Kumar was a homicide or not is to be ascertained. Ext.P2 is the inquest report prepared by PW42 the Investigating Officer. PW27 is the Casualty -:20:-

Medical Officer at GEMS Hospital who issued Ext.P24 wound certificate after examining the deceased. PW32 is the Associate Professor of Forensic Medicine and Deputy Police Surgeon, MCH, Alapuzha. Ext.P29 post-mortem report is prepared by him. He deposed that he had noted the following ante-mortem injuries on the deceased:

“1. Incised wound 4.7x2 cm over right side of front of chest oblique, lower inner blunt end 7 cm to the right of midline and 7cm below collar bone. The wound was directed downwards backwards and to the left for a total minimum depth of 10 cm. The upper outer end was sharply cut. The wound entered the chest cavity by cutting the second costal cartilage 3.5 cm to the right of midline, transfixed the upper lobe of right lung (wound of entrance and exit 3x0.1 cm each) for a depth of 1 cm, severed the principal bronchus, incised the inner edge of upper lobe of left lung and terminated in the lumen of descending aorta. The upper lobe of left lung was cut 2x1x2cm. Both lungs were collapsed. Right chest cavity contained one handful of blood clots. Left chest cavity contained 3 handfull of blood clots and two handful of fluid blood. Chest wall thickness was 3 cm.

2. Superficial incised wound (oblique) 5.5x0.5 cm over inner aspect of right leg lower front end 21 cm above ankle.

3. Incised wound 1.5x0.5cmx0.1 cm over back of trunk -:21:- in midline 17cm above natal cleft.

4. Superficial wound 7x0.2 cm over back of abdomen, oblique, upper inner end 16cm above natal cleft and 2 cm to the left of midline”.

According to PW32, the victim died due to stab injury sustained to the chest. Oral evidence coupled with medical evidence adduced show that Praveen Kumar met with a homicidal death.

12. Prosecution mainly examined PW5 to prove the motive for the crime. PW5 deposed that the prior incident which led to the unfortunate occurrence in the present case happened on

on the eastern side of Decent Mukku at Olaketty in a motor cycle, A1 and his friend came in another bike and tried to keep it across his bike. At that time, he took his vehicle forward, but A1 overtook his bike and placed his bike across the bike of PW5. Then A1 and his friend alighted from their bike and caught hold of his chain. Since it was made of steel, it was not snatched. Attempt was made by A1 to take away money from his pocket but since there was only 10-20 rupees, he did not take it. A1 threatened him of dire consequences in case he disclose the incident to anyone. On the next day, he told the matter to

-:22:-

Praveen Kumar (the deceased herein) and Praveen Kumar replied that he would ask A1 about the same. Within one week, Praveen Kumar questioned A1 regarding the same and there occurred a scuffle between them. Praveen Kumar told the same to PW5. During cross-examination, he admitted that he had not informed the matter even to his father other than the deceased. No complaint was lodged to the police also. When PW5 was cross- examined by A2, he admitted that A1 warned PW5 once for misbehaviour of PW5 to the sister of A1. A1 threatened PW5 that if he would repeat it, he would kick him. Trial Court also relied on the portion of statements of PW1, PW2 and PW3 to take a view that motive for the crime is proved. Court further relied on a question put by the defence counsel during cross-examination to arrive at the said conclusion.

13. But in our considered view, the motive for the

commission of the crime is not satisfactorily proved by the prosecution. Of course, evidence of PW5 only shows that he was threatened by A1 for eve-teasing his sister. The said fact is informed by PW5 to Praveen Kumar. Version of PW5 that Praveen Kumar told him that he had questioned A1 about it and that there -:23:-

was a scuffle is only a hearsay version. So also the versions of PW1 to PW3. Suggestion put by defence counsel cannot at all form the sole basis for concluding a point of discussion unless the point in question (here 'motive') is proved by the prosecution through other reliable evidence. Another incident projected by the prosecution to prove motive was the alleged altercation occurred between A2 and the deceased on the date of incident in the morning. But it can be seen that PW1 and PW3 have only hearsay information about the said incident. There is no evidence to show that such an incident happened. In the light of the above discussion, we are of the view that motive for the crime is not proved.

14. To prove the occurrence, prosecution primarily relied

on the evidence of PW1, PW2 and PW3. PW1 is working in artillery unit of Indian Army. He is cited as an independent witness though he admitted that he is a friend of both Praveen and PW2. According to him, the incident took place on 15/06/2010 at about 04.00 P.M. He witnessed the incident which took place in front of Punartham house of Unnikkuttan (the deceased herein). He was in home town as he got leave for two months. He had to go back

-:24:-

after 9th of July, 2010. For booking train ticket, he along with his friend Aneesh were on their way to Kayamkulam Railway Station. As they reached near the house of Unnikkuttan, he stopped the vehicle for the purpose of visiting Unnikkuttan. PW1 drove the bike and Aneesh (PW2) was pillion rider. Aneesh alighted from bike and went to the sit out area of Unnikuttan's house. PW1 remained on the bike. The road is towards the south of Unnikuttan's house. Bike was stopped at the northern side of the road. At that time, Unnikuttan came out from his house towards the sit out, wearing a saffron kaily. As Aneesh and Unnikuttan were conversing at the sit out, a blue Alto car with Reg.No. KL 31 A 5775 came from the western side of the road and stopped in front of his bike. Kenny (A1), Balachandran who is the father of Kenny (A2) and their friend Appunni (A3) were there in the car and all of them got down from the car. The said car was driven by Muraleedharan who was working at Water Transport Department of the Government. Muraleedharan remained at the driver seat. A1 to A3 entered into the sit out of Unnikuttan. A1 was having a steel knife with him. Thereafter A1 by uttering the words "നയ യ

അനന ഷച നടകക ന ട , ഇനയ നയ ഞൻ ജവനന യട യവന കതയ ട " -:25:-

turned towards Praveen Kumar with knife and on seeing the same, Praveen Kumar jumped to the courtyard of his house and thereupon, A2 restrained Praveen Kumar by catching hold of him and then A1 stabbed Praveen Kumar on the right side of his chest forcefully with the knife and caused injury to him. Praveen Kumar fell down lying on his face. Thereafter, A3 hit Praveen Kumar with MO2 'L' shaped stick (Pathal) and A1 again stabbed thrice on the back of Praveen Kumar with knife. Out of them, two fell on the back of Unnikkuttan and one on his palm of left leg. On seeing the same, PW2 Aneesh tried to ward off the stab and hence it caused cut injury on the index finger of Aneesh. Kenny again brandished the knife and it caused hurt to the left hand of A2. A1 also stabbed forcefully PW2 with MO1 knife on his abdomen. On receiving stab, as PW2 was running into the house of the deceased, A1 stabbed on the back of his right shoulder. PW3 who is the wife of the deceased and grand mother of the deceased were crying aloud seeing all these. When PW1 tried to intervene and prevent the accused from overt acts, A2 aired the sticks and threatened that he would kill him if he tried to intervene. A1 waved the knife threatening to kill him. As people began to

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gather, A1 to A3 ran towards the east. Knife was in the hands of A1 while so running. They abandoned the sticks at the spot. In an Ambassador car, Praveen Kumar and Aneesh were taken by PW1 and Sudheesh to Sovereign GEMS Hospital at Mavelikkara soon. Doctor examined Unnikkuttan and told that he is dead. Since condition of Aneesh was serious, he was asked to be taken to Pushpagiri Medical College Hospital. He identified MO1 knife used by A1, MO2 'L' shaped stick and MO3 stick used for threatening. He deposed that he had hearsay information about motive for the commission of the crime which he described in detail. Ext.P1 is the FIS given by him to S.I. of Police, Kurathikkadu. He identified A1 to A4 in Court. According to PW1, A1 to A3 did not enter into the alto car driven by A4 after the incident. They ran through the canal side towards south. He identified MO4 jeans and MO5 shirt of A1 and MO6 kaily and MO7 shirt of A3. A2 was wearing shirt and kaily. He had shown the place of occurrence to the I.O. and from the place of occurrence, chappal of right leg of A2 and spectacle of A2 (MO8 and MO9 respectively) were seized. He stated that blood-stained soil and leaves were collected from the place of occurrence by experts. He stated further that he had

-:27:-

given statement to police in detail later also. During cross- examination, to a question put by the defence counsel as to why he had gone to Kayamkulam railway station which is more distant than nearby Mavelikkara railway station for booking ticket. He replied that it was to avail free railway warrant. He had to give a home station, for which he had given Kayamkulam railway station as his home station. He stated that he had told the Doctor at GEMS hospital what had happened. It was because of his peculiar situation that he had told that there were five people to attack. According to him, on 16/06/2010 itself he had rectified the mistake by stating to C.I. of Police that there were only four people. He denied the suggestion that he had not seen accused hitting the deceased or PW2 using sticks as alleged. He admitted that he did not notice any marks on the body of the victims caused by the said hitting. To a suggestion whether there was any fight between Praveen and A2 on the day of incident earlier, he deposed that there was a wordy altercation but there was no fight. He denied the suggestion that A2 was brutally manhandled

by six persons on the date of incident at 03.10 P.M. near the culvert situated near the house of Praveen. It was also suggested -:28:-

that a group clash took place near the culvert and that the deceased and PW2 sustained injuries in that group clash and the same was denied by PW1. PW1 also denied the suggestion that he was also there in the group to attack A2. He also admitted that he had given statement to the Investigating Officer that he heard that there took place a fight between the deceased and A2. He also admitted that he had only hearsay information about the snatching of chain by A1 of PW5 Ratheesh Kannan. A1 alone entered the sit out. A2 and A3 were standing at the step of sit out. To a question whether he heard any conversation from the sit out, he said that he heard Kenny's words. To a specific question as to what PW1 had heard, he replied that he heard Kenny saying

"ഇനയ നയ ജവനന യട യവന ക " not that "ഇനയ നയ ഞങൾ ജവനന യട യവന ക ” as per his memory. He affirmed that A1 stabbed parallelly on the chest of the deceased by raising his hands. It happened at the courtyard. At that time PW2 was at the sit out. While stabbing PW2, A1 was on his knees. It is the version of PW1 that as PW1 was about to interfere A2 waved a stick and threatened him. Since he was not allowed to intervene, he did not pacify them from attacking the deceased and PW2. Defence has -:29:-

put a suggestion that PW1 is falsely giving evidence before Court and that the deceased and PW2 sustained injuries in an incident which took place at 03.45 P.M. on 15/06/2010 on the culvert near canal crossing between the deceased, PW1, PW2 and three others on the one side and A2 and two others who came to have a settlement talk on the other side in which all the six of the prosecution party had brutally manhandled all the three of them and that A2 had sustained severe injuries on his face, head and hand, which PW1 denied. Suggestion was put to the effect that A2 was admitted in Government Hospital, Karunagappilly at 04.40 P.M. and that he was referred to Government Hospital, Kollam. PW1 stated that A2 sustained injury by the waving of knife by A1. In cross-examination by A3, PW1 admitted that he had not stated in Ext.P1 about 'L' shaped stick allegedly used by A3. But the same mistake he rectified later by giving statement to IO. He also stated that he visited PW2 at Pushpagiri Hospital 2 to 3 days after the incident. He has no previous acquaintance with A3 and that he had not given to police any identifying features about A3 to police nor the description of dress worn by A3. But he stated that he had clearly seen A3 at the time of

-:30:-

incident. While taking the deceased and PW2 to hospital, PW2 was conscious, but he did not speak anything and PW1 also did not venture to ask him anything. Driver also did not ask anything. PW2 was sitting in the car by pressing his abdomen. During cross- examination for A4, he admitted that name of A4 was not mentioned as driver of the Alto car at the time of incident. No identifying features were given to the police about driver of the car. He also admitted that before 17/06/2010, he did not state the name Murali to police. There was no Test Identification Parade. He denied the suggestion that he is deposing falsely.

15. PW2 deposed that the incident happened on

Kayamkulam Railway Station in a bike to reserve train ticket for PW1. House name of the deceased is 'Punartham'. Bike stopped and PW1 remained in the bike. PW2 went into the house of Praveen Kumar @ Unnikkuttan and seeing him Unnikuttan came to the sit out wearing a saffron dhothi. As they were conversing at the sit out of the house, a blue Maruti Alto car came there from the western side of the house of Unnikkuttan. From the car, Kenny (A1), his father Balachandran (A2) and Appunni of Kalavara

-:31:- Hotel (A3) got out and came towards the house of Unnikkuttan. A knife was in the hands of A1. Thereafter A1 entered into the sit

out by uttering the words "നയ യ അനന ഷച നടകക ന ട , ഇന നയ ഞൻ ജവനന യട യവന കത " with a view to stab Praveen Kumar with knife and at that time, Praveen Kumar jumped to the courtyard of his house to save himself. At that time, A2 wrongfully restrained Praveen Kumar by catching hold of him and then A1 stabbed Praveen Kumar on the right side of his chest forcefully with the knife and caused injury to him. On getting injured, blood pumped out from chest. Unnikkuttan fell down on his face by pressing his wound. Thereafter, A3 hit on the back of Unnikkuttan with MO2 'L' shaped stick (Pathal). Then A1 again stabbed three times on the back of Unnikkuttan with knife. Though PW2 warded them off, they fell on the back of Unnikkuttan and on his palm of left leg and caused wounds though not so deep. In the process, the index finger of PW2 also got slightly injured. At that time A3 hit PW2 on his back using stick. A2 fisted on the chest and back of PW2. At that time A1 stabbed PW2 just above the abdominal area and from that deep wound, blood pumped out. As PW2 was running into the house of Unnikkuttan by pressing his wound, A1 stabbed

-:32:-

forcefully on the right shoulder region of PW2. Sustaining that injury, PW2 ran to the kitchen area of the house and hid himself there. PW3 who is the wife of the deceased and grand mother of PW3 were crying aloud seeing all these. Both Unnikkuttan and PW2 were taken to GEMS hospital in an Ambassador car by Nishad and Sudheesh. By the time they reached GEMS hospital, PW2 became unconscious. He was in Pushpagiri Hospital by the time he became conscious. He identified A1 to A4 in Court. He also identified various material objects including MO1 knife used by A1 to inflict injuries on them and dresses of accused. During cross-examination by A1 and A2, he admitted that he had only hearsay information about the alleged motive for the crime. He denied the suggestion that he had personal knowledge about the fight that took place between A2 and the deceased on

he entered into the sit out of the house, PW2 reiterated his earlier statement by repeating the words as follows: " നയ യ അനന ഷച നടകക ന ട , നയ ഞൻ ഇന ജവനന യട യവന കത " According to PW2, A1 stated so while he was coming from near the car towards the courtyard of the house. Out of the three people who -:33:-

came there, A1 alone entered into the sit out with MO1 knife and two others sat at the courtyard near the steps. He reiterated his statement that Praveen ran for his life and that A2 caught hold of him and Praveen could not run. At that time, A1 came out from sit out and stabbed Praveen. He also stated that PW3 and grandmother cried aloud and about 15 to 20 local people gathered there. While going in the car to hospital, he did not speak anything to PW1. Defence has put a suggestion as to their definite case that the deceased and PW2 sustained injuries in an incident which took place at 03.45 P.M. on 15/06/2010 on the culvert near canal crossing between the deceased, PW1, PW2 and three others on the one side and A2 and two others on the other side in which all the six of the prosecution party had brutally manhandled all the three of them and that A2 had sustained severe injuries and that A2 was admitted in Government Hospital, Karunagappilly at 04.40 P.M. and that he was referred to Government Hospital, Kollam, which PW2 denied. In the cross- examination of A3, PW2 admitted that police did not cause MO2 and MO3 to be identified by him. MO1 knife also did not show to him. But he stated that he knew A3 earlier. He also deposed that

-:34:-

there is no reason for enmity between A4, PW2 and the deceased. People gathered there hearing hue and cry. Many people came to hospital to see him. But he did not speak to people since he had pain. At the time of entering into car for going to hospital, 15 to 20 people were there. He pleaded ignorance to the question that from records it is seen that the statement of PW2 was taken after the arrest of A4.

16. PW3 Priya Praveen is another occurrence witness who

is the wife of the deceased. She deposed that herself and her husband was staying at Punartham house with their 4 year old child and her grandmother Lakshmikutty Pillai aged abut 75 years. Priya's parents are no more. The incident happened on

Praveen went out in his bike. He came back by 02.30 P.M. They had lunch together and they were sitting in the house. By about 03.45 P.M., PW1 and PW2 came there in a bike. PW2 came towards their sit out and Unnichettan went to sit out to receive PW2. Both of them began to converse by standing at the sit out. At that time, a blue Maruti car came to the road, proceeding southward. It was driven by Murali sir (A4). From the said car,

-:35:- Kenny (A1), his father Balachandran (A2) and Appunni (A3) came to their house. A1 was having a knife in his hand. A1 uttered the

words "നയ യ അനന ഷച നടകക ന ട , ഇനയ നയ ഞൻ ജവനന യട യവന കത " to Unnichettan and proceeded towards him to stab with knife and on seeing the same, Unnichettan ran towards the courtyard. A2 caught hold of Unnichettan and A1 stabbed Unnichettan on the right side of his chest forcefully with the knife and caused injury and blood began to pump out. Unnichettan fell down lying on his face. Thereafter, A3 hit Unnichettan with MO2 stick (Pathal) on the back. A1 again stabbed Unnichettan. Out of them, one fell on the back of Unnikkuttan and another on his toe. At that time, PW2 Aneesh chetan tried to ward off the stab of A1 and hence injury was caused to the index finger of Aneesh. At that time, A2 fisted PW2 on his chest and back. A1 also stabbed forcefully PW2 with MO1 knife on his abdomen. On receiving stab, as PW2 was running into the house of the deceased, A1 stabbed on the back of his right shoulder. By that time PW1 came to the courtyard and he tried to intervene and prevent the accused from overt acts, A2 aired the sticks and threatened that he would kill if tried to intervene. A1 Kenny again waved the knife and it caused

-:36:- hurt to the left hand of A2. Seeing all these PW3 cried aloud. As people began to gather, A1 to A3 ran towards the east. Knife was in the hands of A1 while so running. They abandoned the sticks at the spot. A4 drove away in the Alto car. People managed to get a car and PW1 and Sudheesh took her husband and PW2 to hospital. After about 1½ hours, people started visiting their house. Though she asked many times, none of them told her anything. She was not taken to hospital also. Next day by about 10.00 - 11.00 A.M., she came to know that her husband is no

more. The cremation was on 17/06/2010. She identified MO1 knife as the weapon of offence used by A1. She also identified A1 to A4 in Court. She further identified material objects including dress of the deceased and the accused. Though she was cross examined at length, apart from minor discrepancies, nothing material is brought out to shake the case of the prosecution.

17. A contention raised by the learned counsel for the

appellants is that there was inordinate delay in registering FIR which clearly paved path to fabricate and falsely implicate innocent appellants. In our view, the said contention is not valid. The incident happened on 15/06/2010 at about 04.00 P.M. PW1 -:37:- gave FIS and Ext.P30 FIR was registered at 07.00 P.M. on the same day. It is brought in evidence that PW1 had brought the deceased and PW2 to the hospital which is reasonably far away from the place of occurrence. PW2 managed to get proper treatment only since PW1 acted promptly. It is only reasonable that some delay would occur to give FIS, under such circumstances. The contention of the appellants are only to be discarded as nothing is brought in evidence to show that any prejudice had been caused to the appellants.

18. It is well settled that it is not necessary to prove motive in cases where there is eyewitnesses to the incident. Of

course, prosecution could not prove the motive for the commission of the crime to our satisfaction. But evidence of PW2 who is an injured eyewitness clearly shows the involvement and overt acts of A1 against the deceased as well as PW2. It is clearly stated by PW2 that A1 had stabbed the deceased on his chest using MO1 steel knife. A1 also attacked PW2 with the same knife and caused injuries. PW32 the Doctor who had conducted autopsy of the victim deposed that the cause of death of Praveen Kumar was stab injury to the chest and injuries found on him was

-:38:- possible by using MO1 knife. Ext.P83 is the forensic report. It shows that MO1 is stained with human blood. Item no.4 in Ext.P83 is the Jeans (MO4) and item no.3 is a half sleeve shirt

(MO5) recovered based on Ext.P11(a) disclosure statement of A1.

Both of them contained human blood. The evidence of PW2 is fully corroborated by the version of PW1 and PW3 in all material aspects. Their version is consistent as far as A1 is concerned. Hence, we have no hesitation to hold that A1 stabbed Praveen Kumar to death and committed offence under Section 302 of IPC.

19. It is also proved that A1 caused hurt to PW2 by using a

dangerous weapon like MO1 knife. Allegation is that the said act would fall under Section 307 of IPC. PW27 examined PW2 at GEMS Hospital initially and issued Ext.P25 wound certificate. The following injuries are noted by him in Ext.P25: 'Lacerated wound 6x3x2 cm on the right side of epigastrium and profuse bleeding (+ve). Lacerated wound 5x3x2 cm over right side back'. He deposed that the said injuries are possible by the use of MO1 knife. He deposed that no injury was noted by him on the fingers of PW2. He was cross-examined at length regarding absence of incised wounds on PW2 as per Ext.P25. In re-examination, PW27 -:39:-

deposed that injuries noted in Ext.P25 were deep incised wounds. It is also seen in Ext.P25 that he was referred to higher centre. PW38 is the then Professor of Surgery at Pushpagiri Medical College Hospital, Thiruvalla who is acquainted with Dr.Vinod Raj who treated PW2 at Pushpagiri Hospital. Dr.Vinod Raj was abroad and hence he was not available as witness. Ext.P36 discharge certificate was issued by Dr.Vinod Raj and it was marked through PW38. Ext.P37 is the IP register relating to PW2. In Ext.P37, address is shown as Krishnabhavan. PW38 deposed that Aneesh aged 30 years was admitted on 15/06/2010 as IP No.258576 and was discharged on 23/06/2010. Injuries noted are stab injury on abdomen (abdominal wall) and also at the back of right side of chest. During cross-examination of PW38, Ext.D2 which is the OP register of PW2 was marked. Ext.D2(a) is a letter issued by PW42

to Medical Superintendent, Pushpagiri to issue treatment certificate of PW2 and it was also marked at the instance of the accused to show that his name had been subsequently corrected in those records. Learned counsel for the appellants argued that the name in the OP register is Aneesh V., which is different from the real name of PW2 and it shows the manipulation. PW38

-:40:-

stated that the person concerned later had given a request to change the address. The referral letter from GEMS Hospital is also attached in Ext.D2 file. In the discharge certificate also his name is shown as Aneesh V., aged 30 years. There was no intra abdominal injury on PW2. As rightly held by the learned Sessions Judge, none of the Doctors i.e., PW27, PW41 or PW38 deposed that the said injuries were fatal. Even according to the prosecution, PW2 sustained injuries at the time when he tried to ward off the stab on the deceased attempted by A1. Evidence of eyewitnesses did not reveal that A1 inflicted injuries on PW2 with the intention to kill him or with the knowledge that his act would cause the death of PW2. Prosecution case only reveals intention of the accused to kill the deceased as it is further evident from the utterance of A1 as deposed to by eyewitnesses. Hence, the trial Court is justified in acquitting appellants of the charges under Section 307 of IPC. Of course, evidence shows that he sustained stab injuries on his abdomen and at his right scapular region using MO1 knife which is a dangerous weapon. Hence, offence under Section 324 of IPC is clearly made out.

20. PW4 and PW40 are the witnesses examined from the -:41:-

side of the prosecution to prove the involvement of A4 and A5 respectively. PW4 Sudheesh deposed that he is a resident of the locality and the incident happened on 15/06/2010 in the evening. He was coming in his bicycle at the relevant time and as he reached near canal crossing, he saw A1, A2 and another man and A1 was holding a knife. Blood was oozing out from the palm of A2. Thereupon, a blue Alto car came from the west and stopped near them which was driven by A4. It is his further version that A2 touched the rear side of the car and asked to go forward and they ran through the by-lane leading towards west from the canal. He also deposed that at that time he heard a cry from the west and he went there and saw the deceased lying on the courtyard and PW1 and PW3 were carrying him. PW4 also helped them. The deceased was made to lie on the lap of PW3. Blood was coming out from the chest of the deceased. When PW4 asked about the same, he was told that A1, A2 and another person stabbed the deceased and PW2. He went inside the house and saw PW2 leaning on the doors of the kitchen in a very weak condition. Blood was coming out from the back and chest of PW2. The deceased and PW2 were taken to GEMS Hospital. He

-:42:- identified A1 to A3. He also identified MO1 as the knife found in the hands of A1. He identified the clothes worn by A1 and MO4 and MO5. He showed place from where the accused came towards east to police. Blood was seen on the leaves and on the way leading towards south.

21. Allegation against A5 is that he had helped the

appellants to escape from the scene and abscond after the incident. PW40 was examined to prove the said fact. PW40 deposed that on 15/06/2010, while he was going to purchase some manure, as he was going towards the road lying on the east of Vathikulangara temple from south junction towards the west through the way leading to Olaketty and reached the east of canal crossing, he saw a white car. Three persons coming from north of canal side. Out of them two persons entered into the rear seat and blood was oozing out from the hand of A2. Thereafter, A1 came and opened the front door and got into the car. The car swiftly ran towards west. He identified A1 and A2 by name and also identified A5 as the person who was in the driver seat of KL 2 29B 6664 white car. He identified the car and it is marked as MO19. Ext.P8 is the mahazar prepared by PW33 at the time of

-:43:- seizing MO19 car.

22. It is a cardinal principle that each case has to be

decided on its own facts. The crucial aspect to be looked into is whether A1 to A5 had entertained any common intention to commit murder of the deceased as alleged by the prosecution. It is proved by the prosecution that A1 to A3 entered into the property of the deceased. Presence of A2 is further fortified by the seizure of personal articles belonging to him from the spot. Ext.P7 scene mahazar was prepared by PW42. He seized MO8 which is a foot wear (right leg) and MO9 a spectacle from the crime scene as per Ext.P7 mahazar. PW1 identified both the MOs in Court as that of A2. Ext.P12 is the recovery mahazar of MO16 foot wear (left leg) at the instance of A2 for which PW19 is a witness. Ext.P83 shows that MO16 contained human blood. But intention should be gathered from the attending circumstances of the case which are revealed from available evidence. As already discussed, motive for the commission of the crime is not proved. There is no evidence to show that there was criminal conspiracy among the accused. Even according to the prosecution, A1 to A3 alone came to the courtyard of the deceased. A4 was inside the

-:44:- car. A5 was nowhere in the scene. An inference of common intention against A4 and A5 could be drawn provided there was any active participation in causing death but falling short of inflicting fatal blows or minimum participation or even non-

participation in causing death but participation in overall occurrence. Admittedly, no overt acts are attributed to A4 and A5. Participation of A5 is still remote. As far as A4 is concerned prosecution could only prove that A1 to A3 were dropped by A4 in his car in front of the house of the deceased. The assailants were not taken away by A4 in his car nor he helped them to escape. Prosecution has a rather difficult-to-believe story that A1 to A3 asked A4 to drive away the vehicle and that they ran for some distance and then got into the white car of A5 from a different place. PW2 who is one of the injured witness, in his evidence has stated that A4 had no enmity towards the deceased or PW2. Evidence on record did not show that A4 entertained any common intention to kill the deceased. Same is the situation with A5. Trial Court is fully justified in acquitting A4 and A5 of all charges. MO1 knife was carried by A1 only. A2 and A3 were admittedly unarmed. They did not enter into the sit out also. A1

-:45:-

alone entered into the sit out. Of course, there is statement of PW1, PW2 and PW3 to show that A2 had caught hold of the deceased and then A1 stabbed him. But in our view, it is not possible to conclude that A2 and A3 had intention to commit murder of the deceased. Prosecution did not have a case that A2 or A3 exhorted A1 to stab the deceased. It is quite useful to refer to the deposition of PW1 at this juncture. In his cross- examination, he deposed that A1 alone entered into the sit out. A2 and A3 were standing at the step of sit out. To a question whether he heard any conversation from the sit out, he said that he heard Kenny's words. To a specific question as to what he had heard, he (PW1) replied that he heard Kenny saying “ഇനയ നയ

ജവനന യട യവന ക " not that “ഇനയ നയ ഞങൾ ജവനന യട യവന ക " as per his memory. Admittedly, an injury was found on the right palm of A2 which was clear from Ext.P28 wound certificate. He has some other injuries as well. PW1 and PW3 has stated that the said injury on the hand of A2 was caused while A1 was warding off MO1 knife. The said explanation is not so convincing. It is at this point that the blood stains found on MO16 chappal of A2 need to be scrutinized. Even according to the prosecution, A2 had

-:46:-

sustained a wound on his hand. It is quite possible that the blood found on MO16 could be A2's own. Benefit of doubt in this regard should go to A2. If at all for a moment assuming A1 to A3 had entertained common intention to kill the deceased, that too by entering into the very house of the deceased, whether a knife like MO1 could be considered as a preparation for all of them to successfully implement their common design is a question. Of course, it may be possible. But in the case at hand, considering the overall circumstances of the case, we are of the view that A2 and A3 had not entertained any common intention to murder the deceased. If at all there was a pre-plan, they could not anticipate presence of PW2. He came there accidentally. Prosecution did not have a case that A2 and A3 stabbed PW2. Prosecution did not have a case that common intention developed on the spot. There is nothing to show the same. Allegation of prosecution is that A2 fisted PW2 on his chest and back. A3 also allegedly hit PW2 with MO2 stick. But no injury is noted and there is no mention of the same in PW2's wound certificate. It can also be seen that injury no.1 sustained by the deceased alone is fatal according to the Doctor. All accused were acquitted by the trial Court for offence

-:47:- under Section 323 read with Section 34 of IPC. Under such circumstances, we are of the view that prosecution did not prove that A2 to A5 had any common intention with A1 to commit the murder of the deceased or to cause hurt with dangerous weapon on PW2. On going through the entire evidence, the act of A1 stands alone. It did not reveal prior meeting of minds among the accused as far as intention to commit murder is concerned.

23. But of course, it is proved that A1 to A3 trespassed

into the property of the deceased. A1 was having an intention to commit murder which is evident. Hence, he alone is liable to be punished under Section 449 of IPC. At best, accused 2 and 3 could be said to be liable for offence u/s 451 of I.P.C. as they unlawfully remained in the premises with the first accused after

he started aggression and committed the overt acts. But the court below had acquitted A3 on valid grounds and it may not be possible for us to interfere with the order of acquittal by exercising the appellate jurisdiction. Therefore, the 2nd accused also cannot be found guilty for the offence u/s 451 of I.P.C. and we extend benefit of doubt to him.

24. As far as charge of criminal conspiracy against the -:48:-

appellants are concerned, after going through the entire evidence, there is no evidence before us to show that there was an agreement among the appellants to commit any offence or an unlawful act. According to the prosecution, they could not examine a crucial witness whom they cited to prove the conspiracy as he was abroad. Nothing is there on record to conclude that offence under Section 120B is made out. In our view, the Court below is justified in acquitting all accused of the said charge.

25. It is alleged that A2 had hit at the chest and back of

PW2 with his hand. PW2 deposed so and PW1 and PW3 corroborated the same. The view taken by the trial Court is that there is no corresponding injury in Ext.P25 wound certificate and also that PW2 did not have a case that the said hit caused pain or infirmity to him to attract an offence under Section 323 of IPC. We do not find any reason to unsettle the said finding.

26. Another allegation against A2 is that he had set his

clothes on fire after the occurrence and destroyed evidence. But the said argument remains as an allegation as nothing is brought in evidence to prove the said act of burning of clothes and -:49:- destruction of so called evidence. According to us, Court below committed no mistake in acquitting the 2 nd accused for the said charge. In the result, Crl.Appeal (V) No.1584/2013 is dismissed. Crl.Appeal No.962/14 is partly allowed. The conviction and sentence of the first accused for offence under Sections 449, 341, 324, 302 and 506(ii) shall stand confirmed. The conviction of second accused under Sections 449, 341, 324, 302, 506(ii) r/w 34 of I.P.C. is set aside and the second appellant/second accused is acquitted of all charges against him. He shall be released forthwith, if his presence is not required in any other case. Sd/- A.M.SHAFFIQUE JUDGE Sd/- ASHOK MENON Rp //True Copy// JUDGE PS to Judge