Kerala High Court
Albert vs State Of Kerala on 10 October, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934
CRL.A.No. 856 of 2008 (B)
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SC.238/2005 of ADDL.SESSIONS COURT,KOTTAYAM
CP.4/2005 of J.M.F.C. - I, ETTUMANUR
APPELLANT(S)/APPELLANTS.:
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1. ALBERT,C.NO.2284 & ANDREWS,C.NO.2285,TVM
CENTRAL PRISON,TRIVANDRUM.
2. ANDREWS,C.NO.2285,
CENTRAL PRISON,TRIVANDRUM.
BY ADV. SRI.SAJEEV.T.P.
RESPONDENT(S):
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STATE OF KERALA, REP.BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.GIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR &
C.T.RAVIKUMAR, JJ.
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Crl.A.No.856 of 2008
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Dated this the 10th day of October, 2012
JUDGMENT
Sasidharan Nambiar, J.
Appellants are direct brothers. They are convicted and sentenced to imprisonment for life for the offence under Section 302 read with Section 34 of the Indian Penal Code by Additional Sessions Judge, Kottayam in S.C.No.238 of 2005 for murdering Joseph, brother of the father-in-law of the first appellant.
2. PW1 Thomas is the younger brother of deceased Joseph. PW2 Biji and PW3 Tessy are the daughters of PW1. Deceased Joseph @ Iype was a bachelor and was living with PW1 Thomas. Deceased Devasia is the another brother of PW1. First accused married the daughter of the said Devasia. PW6 Thomas @ Jose is the son of the said Devasia and the brother-in-law of the first appellant. The house of PW1 lies towards the west of the Panchayat road, which starts from the northern tar road. A way starting from the Panchayat road runs towards the west, then turns towards the south and reaches the house Crl.A.No.856/2008 2 of PW1. The house of PW6 Jose lies to the north east of the house of PW1 and south of that way. At that place, the way is running east west. The house of Devasia lies towards the north-west of the house of PW1. First accused was residing in a shed which lies to the east of the house of PW1 and to the south west of the house of PW6. There is a wall separating the property of PW1 and the property where the first accused was residing. Though it was originally having a height of six feet, it is admitted that at the time of the incident in 2004, it was only having a height of four feet. Prosecution case is that on the evening of 3.9.2004 at about 6.30 p.m. PW1 Thomas was returning to his house from the eastern Panchayat road. Deceased Joseph had taken food from the house and was proceeding towards his property, along the way which starts from the house and proceeds to the north, turns to the east and joins the Panchayat road, as stated earlier. PWs 2 and 3 were standing outside. They found deceased Joseph walking along the way. Both the accused, approached Joseph, caught his hands and pulled him along that way towards the east. After deceased Joseph was taken to the north- west side of the house of PW6 at the pathway, both the accused beat Joseph with a hockey stick and an iron rod. PW1, by that time had reached near the place where the eastern pathway starts from the Panchayat road and witnessed the incident. So also PWs 2 and 3. PW1 Crl.A.No.856/2008 3 ran towards the deceased. By that time the accused left Joseph who had fallen on the ground leaving MO1 hockey stick and carrying MO2 iron rod. PW1 along with PWs 2 and 3 carried Joseph to their house. PW2 went to fetch an autorickshaw, after spending some time with the deceased. By that time, the brother of PW2 also reached there. PW2 took the autorickshaw driven by Biju, who was cited as prosecution witness but not examined and later examined as DW1 by the defence. PWs 1 and 2 took the injured Joseph to Medical College Hospital, Kottayam. By the time they reached the hospital, Joseph breathed his last. PW1 furnished first information after reaching the police station. PW13, the Sub Inspector of Police, Ettumanoor, recorded Ext.P1 F.I. Statement of PW1 at 2 a.m. on 4.9.2004 and based on Ext.P1 prepared Ext.P1 (a) F.I. R. and registered Crime No.379/2004 under Section 302 read with Section 34 IPC against the appellants. The body of Joseph was kept at the mortuary of the Medical College Hospital. PW15, the Circle Inspector of Police took over the investigation on 4.9.2004 itself. He reached the Medical College Hospital and prepared Ext.P5 inquest report at 10.30 a.m. and submitted the necessary requisition for the autopsy. PW11 Dr.Zacharia Thomas, Lecturer in Forensic Medicine, Medical College Hospital, Kottayam performed the autopsy and prepared Ext.P10 postmortem certificate. After getting the certificate of chemical Crl.A.No.856/2008 4 analysis of the viscera content collected and forwarded at the time of autopsy, Ext.P11 final report was submitted stating that the death was caused due to the injuries sustained on the chest. PW15 reached the scene of occurrence and as identified by PW2, prepared Ext.P9 scene mahazar in the presence of PW10 Biju, the attesting witness, and seized MO1 hockey stick. PW15 also sought the service of PW12, the Scientific Assistant, and got the scene of occurrence examined and obtained Ext.P12 report. No relevant material could be collected by PW12. Police Constables, on the instruction of PW15, detained the appellants at Pampadumpara of Idukki District on 10.9.2004 and produced before PW15 who arrested them on 11.9.2004 at 0.15 a.m.. On the information furnished by the second accused, under Ext.P6 mahazar, MO2 iron rod was recovered by PW15 on 11.9.2004 at 7.30 a.m. where it was concealed by the second accused. On the information furnished by the second accused, under Ext.P7 mahazar, MOs 5 and 6 shirt and kaily of the second accused were recovered by PW15 at 8.30 a.m. on the same day. On the information furnished by the first accused, under Ext.P8 mahazar, MO3 banyan and MO4 kaily were recovered in the presence of PW9. The material objects recovered were produced before the court and sent to the Forensic Science Laboratory for chemical analysis and obtained Ext.P24 report. After completing the Crl.A.No.856/2008 5 investigation, final report was laid before Judicial First Class Magistrate, Ettumanoor for the offence under Section 302 read with Section 34 IPC. Learned Magistrate committed the case to Sessions Court, Kottayam. The learned Sessions Judge made over the case for trial to Additional Sessions Court. Appellants were defended by a counsel of their choice.
3. When charge for the offence under Section 302 read with Section 34 IPC was framed and read over, appellants pleaded not guilty. Prosecution examined 15 witnesses and marked 24 exhibits and identified eight materials objects. At the time of cross examination of PWs 1, 2, 3 and 6 Exts.D1 to D4 series of portions of their statements recorded under Section 161 Cr.P.C. were confronted and marked. After closing the prosecution evidence, learned Additional Sessions Judge questioned the appellants under Section 313 Cr.P.C. Appellants denied the incriminating evidence put to them and additionally contended that they are innocent. Learned Additional Sessions Judge called upon the appellants to enter upon their defence and adduce evidence. Appellants then examined DW1 who was earlier cited as a prosecution witness but not examined and DW2, the Sub Inspector of Police, Ettymanoor, to show that the deceased Joseph was one of the accused charged for the offences under Sections 294(b), 323 and 324 read with Section 34 IPC. Crl.A.No.856/2008 6
4. The learned Additional Sessions Judge, on the evidence, found that the evidence of PWs 1, 2 and 3 are trustworthy and reliable. Based on their evidence, it was found that deceased Joseph sustained the injuries when the appellants inflicted that injuries with MO1 hockey stick and MO2 iron rod. Based on the evidence of PW11 Dr.Zacharia Thomas with Exts.P10 and P11 certificates it was found that the death of Joseph was caused by the injuries thus inflicted by the appellants on his chest and those injuries are sufficient in the ordinary course of nature to cause death. Relying on the recovery of MO2 iron rod under Ext.P6 recovery mahazar, learned Additional Sessions Judge found that it was recovered on the information furnished by the second appellant and the evidence of PWs 1 to 3 establish that the second appellant inflicted injuries with MO2 iron rod and the first appellant inflicted injuries with MO1 hockey stick. Based on this evidence, it was found that appellants inflicted the injuries on the deceased Joseph with the intention to cause his death and thereby committed the offence under Section 302 read with Section 34 IPC. The appellants were accordingly sentenced as stated earlier. It is challenged in the appeal preferred from prison. Later Adv.Sajeev.T.P. filed vakalath for the appellants. Crl.A.No.856/2008 7
5. Learned counsel appearing for the appellants vehemently argued that the evidence of DW1 was not properly appreciated by the learned Additional Sessions Judge. It was argued that prosecution purposefully did not examine DW1, as if he was examined, he would not have supported the prosecution case and the defence witness is entitled to equal treatment like the prosecution witness as held by the Supreme Court in Munshi Prasad and others v State of Bihar ((2002) 1 SCC
351). It was argued that there is no reason to disbelieve the evidence of DW1 especially, when he was a prosecution witness and the evidence of DW1 establish that it was in his autorickshaw the deceased was taken to Medical College Hospital. The learned counsel argued that the evidence of DW1 establish that PW1 was not there when the deceased was taken in the autorickshaw to the Medical College Hospital and therefore, the evidence of PWs1 to 3 that PW1 was there and PW1 had travelled in the autorickshaw along with PW2 can never be true and if that be so, it is clear that PWs 1 to 3 are not trustworthy witnesses. Relying on the evidence of PW1, the argument of the learned counsel is that the evidence of PW1 is to be eschewed, as he could never be an eye witness and his evidence cannot be relied on to hold how the deceased sustained the injuries. The learned counsel also argued that even though PW1 deposed that the first appellant inflicted the injuries on Crl.A.No.856/2008 8 Joseph with MO1 hockey stick, in Ext.P1 F.I. Statement he did not mention hockey stick at all and the hockey stick was introduced after it was recovered from the scene of occurrence by the Circle Inspector and that is also a circumstance to disbelieve PW1. The learned counsel then argued that the evidence of PWs 2 and 3 establish that they are interested witnesses and are highly tutored and therefore, their evidence also cannot be believed. The learned counsel argued that in any case, recovery of MO2 under Ext.P6 recovery mahazar should not have been relied on by the learned Additional Sessions Judge, in the light of the evidence of PW8, the attesting witness, who deposed that he did not witness the recovery and had signed in Ext.P6 when it was a blank paper and there is no evidence to prove that it was the appellants who inflicted the injuries on the deceased or caused his death. The learned counsel also argued that if the prosecution case is true, PWs4 and 7, who are admittedly neighbours of PWs 1 and 6, would have heard the noise or quarrel and as they have no case that they heard any sound on that night, it is clear that the incident did not occur as claimed by PWs 1 to 3. Learned counsel also argued that though PWs 1 to 3 claimed that the injured sustained injuires at 6.30 p.m. the evidence of DW1 establish that he was called by PW2 only by 8 p.m. and therefore, the incident could have occurred only after 7.30 p.m., as deposed by PW5, and it Crl.A.No.856/2008 9 also establish that the evidence of PWs 1 to 3 cannot be relied on. The learned counsel finally argued that the alleged motive is not strong and for that motive there is no possibility of the appellants causing the death of Joseph and, in any case, appellants are entitled to the benefit of doubt. Learned counsel also argued that though MOs 1 and 2 were allegedly used for inflicting injuries, Ext.P24 report of the Forensic Science Laboratory establish that there was no trace of blood in MOs 1 and 2 and hence MOs 1 and 2 would not be the weapons with which the injuries were inflicted.
6. Learned Public Prosecutor submitted that the evidence of DW1 establish that he is a tutored witness who cannot be trusted at all. It was pointed out that even though DW1 was a prosecution witness and he admitted that he had appeared before the Court, though not examined, and found the accused in the dock at that time, deposed in cross examination that he did not know what is the case in which he has to tender evidence and why the accused were standing on the dock. It was also pointed out that when the defence counsel put the same questions in re-examination, DW1 deposed that he knew that the accused are facing trial in the murder case and he was being examined on the side of the defence. It was pointed out that, that fact itself is Crl.A.No.856/2008 10 sufficient to prove that DW1 was only prepared to support the defence version and not to disclose the truth. Learned Public Prosecutor argued that the evidence of DW1 can never be relied on to disbelieve the evidence of PW1 or PWs 2 and 3. It was pointed out that the evidence of DW1 establish that autorickshaw cannot go near to the Panchayat road from where the eastern way starts and instead it was stopped near a well, which is far away from the scene of occurrence and DW1 admitted that he did not get out of the autorickshaw and still he deposed that the injured was taken from the house of PW1 to the autorickshaw and he was prepared to give the exact time when the autorickshaw reached there, when the autorickshaw reached the Medical College Hospital, and it is thus clear that he is not at all a trustworthy witness. Learned Public Prosecutor argued that the evidence of PW1 is fully corroborated by evidence of PWs 2 and 3 and the fact that PWs 1 to 3 are close relatives of the deceased is not a ground to disbelieve their evidence. It was pointed out that in spite of cross examination, nothing was brought out to show that their evidence is not believable. Learned Public Prosecutor argued that the evidence of PWs 1 to 3 establish that all of them had witnessed the appellants beating deceased Joseph with MO1 hockey stick and MO2 iron rod and the evidence of PW11, the doctor, establish that the injuries sustained by the deceased were Crl.A.No.856/2008 11 inflicted with MOs 1 and 2 and the `U' shaped injury sustained on the chest, as deposed by PW11, was caused by that portion of the broken hockey stick, as deposed by PWs 1 to 3, and there is no reason to disbelieve their evidence. The learned Public Prosecutor also argued that the intention of the appellants was to murder the deceased as is clear from the fact that the deceased was pulled towards the scene of occurrence and thereafter the injuries were inflicted on the chest, which are sufficient in the ordinary course of nature to cause death and the learned Additional Sessions Judge rightly found that the appellants committed the murder. Learned Public Prosecutor also argued that there is no reason to disbelieve the recovery of MO2, proved by the evidence of PW15, though PW8 turned hostile, and there is no reason to interfere with the conviction or the sentence.
7. The fact that deceased Joseph, the brother of PW1 Thomas, sustained injuries on the night of 3.9.2004 and was taken to Medical College Hospital, Kottayam in the autorickshaw driven by DW1 after PW2, the daughter of PW1, fetch that autorickshaw and by the time the injured reached the Medical College Hospital he breathed his last were not disputed at the time of recording of evidence. The evidence of PW11, the doctor, with Exts.P10 and P11 postmortem certificate and the Crl.A.No.856/2008 12 final report, which are not seriously challenged at the time of his cross examination, establish that the death of Joseph was caused due to the blunt injuries sustained on his chest involving the heart. Evidence of PW11 with Ext.P10 postmortem certificate establish that Joseph sustained the following ante-mortem injuries:-
"1. Lacerated wound 1.7 x 1.3 x 0.2 cm on the top of head 7 cm above occipit.
2. Contusion 2.5 x 1.5 x 0.5 cm on the left side of back of head just behind the pinna of ear. The scalp, skull bone and brain were normal.
3. Abrasion 3 x 1 cm horizontal on the left side of front of chest 5 cm outer to midline and 14 cm below collar bone.
4. Contused abrasion 5 x 4 cm oval in shape on the left side of front of chest, 2.5 cm outer to midline and 22 cm below the collar bone."
8. From the nature and description of injury Nos.3 and 4 and the uncontroverted evidence of PW11 it is proved that injuries 3 and 4 are sufficient in the ordinary course of nature to cause death. The learned Additional Sessions Judge in the light of the evidence of PW11, Exts.P10 and P11 rightly found that Joseph died due to the injuries sustained on his chest involving the heart and those injuries are sufficient in the ordinary course of nature to cause death. Crl.A.No.856/2008 13
9. The question is who inflicted those injuries and how Joseph sustained those injuries. The defence case, while cross examining the prosecution witnesses, was that Joseph sustained the injuries by a fall from the western wall separating the property of the first appellant from that of PW1. But, no material was brought out by the defence as to how the deceased happened to be on the said wall and how Joseph had fallen. The evidence of PW11 conclusively establish that the injuries sustained by deceased on his chest, could not have been the result of a fall from a height of four feet. The evidence that the wall separating the property of PW1 from the eastern property of the first appellant, was only having a height of four feet though it was originally six feet, was not disputed or challenged. In the light of the evidence of PW11 it is clear that the injuries sustained by the deceased, which caused his death, were not caused by a fall, as claimed by the defence.
10. The prosecution examined PWs 1 to 3 to prove how deceased sustained the injuries. PW1 is the first informant. PWs 2 and 3 are the daughters of PW1. Deceased was living in the house of PW1 along with PWs 2 and 3. The evidence of PWs 2 and 3 is that Joseph had been in the house on that evening and by 6.30 p.m., he took the food and proceeded along the way which starts from their house towards Crl.A.No.856/2008 14 the north and then turns to the east and reaches the Panchayat road. Their evidence show that while the deceased was walking along the road, both the accused approached them and each of them caught hold of the hands of Joseph and pulled him along that way up to the north western side of the house of PW6. The evidence of PW1 is that he was returning to the house by about 6.30 p.m. on that evening along the Panchayat road and while standing on the Panchayat road, before entering the western way, he found the appellants, attacking the deceased. The evidence of PWs 2 and 3, as to how the deceased sustained injuries is fully corroborated by the evidence of PW1. The evidence of PWs 1 to 3, if believed, would establish that both the appellants, inflicted the injuries on the deceased, the first appellant using a hockey stick and the second appellant using an iron rod. The question is how far the evidence of PWs 1 to 3 could be relied on.
11. Though learned counsel appearing for the appellants vehemently argued that the evidence of PW1 cannot be believed, based on the evidence of DW1, on a proper analysis of the evidence of DW1 we find it not possible to repose any faith on his evidence. True, a witness examined on the side of the defence is entitled to get equal treatment similar to that of a prosecution witness. That does not mean that Crl.A.No.856/2008 15 whatever a witness, examined by the defence, deposes, is to be swallowed by the court. His evidence is to be subjected to the same test, which is to be applied to a prosecution witness. If, on such analysis, the evidence of a witness examined by the defence is found to be trustworthy and believable, his evidence cannot be eschewed or ignored. The question is whether the evidence of DW1 is trustworthy and reliable. It is necessary to consider this aspect first, as the trustworthiness and reliability of the evidence of PW1 depends on the evidence of DW1. An analysis of the evidence of DW1 shows that he is not a trustworthy witness. If he is a trustworthy witness, we find no reason why DW1 has to suppress the fact that he was aware that the accused are facing trial for the murder of Joseph. When the Public Prosecutor cross examined DW1 in detail and specific question was put to DW1 whether he is aware in which case he is to give evidence and what case is being faced by the accused, he expressed ignorance. The same witness, when the defence counsel put the same question, in re- examination, answered that he was aware of these facts. That itself establish that DW1 is prepared to disclose facts, only if it is helpful to the defence or is asked by the defence counsel. If DW1 is a trustworthy witness and when he admits that he had taken the injured in his autorickshaw, as requested by PW2, and he was informed from the Crl.A.No.856/2008 16 Medical College Hospital that the injured died, any ordinary prudent man will ask what happened to the injured and how he sustained the injuries. According to DW1, he did not ask the same, but, in re-examination he stated that he asked and as PW2 was crying she did not answer. It was also deposed by DW1 later in cross examination that he was aware that Joseph died due to the injuries inflicted on him by beating. When these materials are appreciated in the proper perspective, especially, when DW1 ventured to give the exact time when PW2 approached him to take the autorickshaw, when he reached the spot where the autorickshaw was parked, the time when he reached the Medical College Hospital, the time when PW2 allegedly disclosed that Joseph is no more and the time when he returned back near to the house of PW1 establish that he is suppressing the true facts and deposed only to favour the appellants. As suggested by the prosecutor, DW1 is suppressing the true facts to help the appellants who belong to the same political group. Therefore, we have no hesitation to hold that based on the testimony of DW1 the evidence of PWs 1 to 3 cannot be disbelieved.
12. The only other ground shown to disbelieve the evidence of PW1 is non-mentioning of the hockey stick in Ext.P1 F.I. Statement. True, PW1 did not mention in Ext.P1 that the appellants used hockey Crl.A.No.856/2008 17 stick and only iron rod was mentioned in Ext.P1. The fact that MO1 hockey stick was found at the scene of occurrence, is proved by the evidence of PWs 1 to 3 as well as PW15, the Circle Inspector who prepared Ext.P9 scene mahazar. PW10, the attesting witness to Ext.P9, also supports the case, though he did not identify MO1. It is also to be born in mind that Ext.P1 F.I. Statement was furnished by PW1 at 2 a.m., within hours after the death of his elder brother who was residing along with him. In such circumstances, we do not find that the omission to mention specifically the hockey stick is fatal to the evidence of PW1. The evidence of PWs 2 and 3 was challenged on the ground that they are highly tutored and their statements were recorded after preparation of Ext.P9 mahazar. PWs 2 and 3 had no occasion to disclose the details of the incident to the police before their statement was recorded by PW15. The defence has no case that PWs 2 and 3 did not disclose the existence of a hockey stick at the scene of occurrence or the fact that a hockey stick was used by the first appellant to inflict injuries, when their statement was recorded for the first time by a police officer. In such circumstances, for the reason that their statements were recorded under Section 161 Cr.P.C. after the scene mahazar was prepared, cannot be taken as a valid ground to hold that their evidence is not trustworthy. The necessity for recording the statement of a witness, would arise only Crl.A.No.856/2008 18 after registration of the case and preparation of the inquest. Moreover, there was not much delay in recording the statements of PWs 2 and 3 also. The fact that PWs 2 and 3 are the daughters of PW1, who is the brother of the deceased is not at all a ground to disbelieve their evidence. Apart from suggesting that they are tutored witnesses, there is no material to hold that they are tutored. If PWs 2 and 3 witnessed the incident, as deposed by them, they would depose the facts seen by them alike and for the reason that PW2 had fully corroborated the evidence of PW3 or PW3 fully corroborated the evidence of PW2, cannot be a ground to hold that they are tutored. The evidence of PWs 2 and 3 establish that they witnessed the appellants taking the deceased Joseph by holding of his hands forcibly and inflicted the injuries on the deceased. Their evidence corroborate the evidence of PW1 that when he reached there at the scene, he witnessed the appellants inflicting injuries on the deceased and along with PW1, PWs 2 and 3 took the injured to their house and thereafter taken the injured to the Medical College Hospital. For the reason that the injured was taken to the Medical College Hospital only after 8.30 p.m., it cannot be said that PWs 1 to 3 did not witness the incident. On a careful analysis of the evidence of PWs 1 to 3, we find their evidence is fully trustworthy, believable and reliable. If so, their evidence conclusively establish that it was the Crl.A.No.856/2008 19 appellants who inflicted the injures on the deceased using a hockey stick and an iron rod. Even if Ext.P24, the report of Forensic Science Laboratory, does not establish that there were traces of blood either on MO1 or MO2 or the dresses seized from the appellants, it cannot be found that it was not the appellants who inflicted the injuries on the deceased or that the injuries were not inflicted with MOs 1 and 2. From the nature of the injuries recorded in Ext.P10 postmortem certificate, even if those injuries were inflicted with MOs 1 and 2, there need not necessarily be traces of blood. In such circumstances, for the non- detection of blood in MOs 1 and 2 it cannot be found that appellants did not inflict the injuries on the deceased as proved by the evidence of PWs 1 to 3. In the light of the ocular evidence we do not find that the recovery of MO2 under Ext.P6 recovery mahazar, is that much relevant. The fact that PW8, the attesting witness to Ext.P6 recovery mahazar, turned hostile to the prosecution need not necessarily mean that MO2 was not recovered under Ext.P6 mahazar. The attesting witness to the recovery mahazar may turn hostile to the prosecution for various reasons. The validity or the value of a recovery of a weapon, cannot be at the mercy of an attesting witness to the recovery mahazar.
13. When there is reliable and trustworthy ocular evidence Crl.A.No.856/2008 20 as to how the deceased sustained the injuries, failure to prove the motive is not at all fatal. Prosecution would allege that the first appellant, was having a motive to murder the deceased as deceased had threatened the first accused that he would report to the police first accused and others playing cards near to his property. In addition, the evidence of PWs 2 and 3 show that the deceased had questioned the first accused his behaviour towards his wife, who is none other than the daughter of the brother of the deceased, on the previous day and it was not liked by the first accused. The suggestion given to the prosecution witness by the defence counsel also shows that there was such an incident. In such circumstances, it cannot be said that there was no motive.
14. On a proper appreciation of the entire evidence, we hold that prosecution succeeded in conclusively establishing that in furtherance of their common intention, both the appellants inflicted injuries on the chest of the deceased Joseph and caused his death. It is also proved that those injuries were inflicted with the intention to cause his death. Even otherwise, when the evidence of PW11 establish that those injuries are sufficient in the ordinary course of nature to cause death and it is clear from the evidence that those injuries were inflicted Crl.A.No.856/2008 21 with the intention to cause those particular injuries and were not caused accidentally, even if there is no intention to cause the death and clause firstly of Section 300 of Indian Penal Code is not applicable (which is not the case herein), clause thirdly of Section 300 squarely applies. The offence committed is under Section 300 of IPC as nothing was brought out to attract any of the exceptions provided under Section 300 of Indian Penal Code. Hence, conviction of the appellants for the offence under Section 302 read with Section 34 IPC can only be sustained. The learned Additional Sessions Judge has awarded only the lesser sentence of imprisonment for life. In such circumstances, sentence also warrants no interference.
Appeal is dismissed confirming the conviction and the sentence.
Sd/-
M.SASIDHARAN NAMBIAR Judge Sd/-
C.T.RAVIKUMAR Judge TKS