Sanoop vs State Of Kerala on 17 July, 2019

[Cites 7, Cited by 0]

Kerala High Court

Sanoop vs State Of Kerala on 17 July, 2019

Equivalent citations: AIRONLINE 2019 KER 259

This appeal has been preferred by the appellant Sanoop, who is the 2nd accused in S.C. 110 of 2011, challenging the verdict of 4th Additional Sessions Judge, Thrissur dated 16/06/2015. Altogether there were four accused out of which two were juveniles and their case was considered by Juvenile Justice Board. By the impugned judgment he was found guilty for offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of `5,000/- (Rupees Five Thousand only) with a default stipulation of imprisonment for three months for the said offence. 1st accused (for short 'A1') who is not before us in appeal in this case is also sentenced for the same offence with the same punishment.

2. Prosecution case is as follows:

Appellant herein and A1 along with two juveniles were engaged in teasing women and natives of Kunnathangadi and Crl.Appeal No.757/15 -:3:- nearby places after being intoxicated themselves with alcohol and ganja. Suresh (the deceased herein) objected the same and challenged the accused. To settle scores with Suresh on the same, accused on 21/03/2010 at about 07.15 p.m., in furtherance of their common intention to kill said Suresh, attacked him by beating, fisting and stabbing with knife. The incident took place on the western side of Parakkad Ayyappankavu road leading from Kunnathangadi road junction in Velathoor Village. Suresh died due to injuries suffered by him.

3. To prove allegations against accused, prosecution examined PW1 to PW12 as witnesses, Exts.P1 to P20 documents were marked and MO1 to MO5 were identified. After closure of prosecution evidence, accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). They denied allegations and evidence appearing against them. PW10 was recalled by the defence and further cross-examined. No other evidence is adduced from the side of defence.

4. Learned counsel appearing for and on behalf of the appellant Sri.P.Vijaya Bhanu argued that there is absolutely no evidence to connect A2 with the crime. Prosecution failed to prove the case against A2 beyond reasonable doubt. Evidence of Crl.Appeal No.757/15 -:4:- so called occurrence witnesses do not inspire confidence. Motive remains as mere allegation. Prosecution story is a totally unbelievable one. Even assuming that this Court is inclined to believe the version of so called eye witnesses, it is rather clear that none of the injuries allegedly inflicted by A2 on deceased are fatal. There is nothing to indicate that A2 had any intention to commit offence as alleged. There is absolutely nothing on record to indicate that accused entertained any common intention to commit the offence. Court below committed serious error in convicting A2. He relied on the decision of the Apex Court in Babubhai Ranchodbhai Patel and Another v. State of Gujarat (AIR 1994 SC 1400) to substantiate his contention that when there is no evidence to show that there is common intention, accused is entitled to get the benefit of doubt.

5. In reply, learned Senior Public Prosecutor Sri.Nicolas Joseph argued that prosecution adduced cogent and reliable evidence to prove the guilt of accused. Eyewitnesses described how the incident happened and how accused unleashed attack on the victim. Overt acts of A2 are clearly deposed to by eyewitnesses. He inflicted multiple injuries on the deceased. Fourteen out of nineteen injuries on Suresh were incised wounds. Crl.Appeal No.757/15 -:5:- A1 could be attributed with one fatal stab injury on the back of victim. Juveniles were not attributed with any overt acts. Hence, A2 is the author of all those injuries and his common intention is evident from his conduct and act. Medical, recovery and other scientific evidence fully corroborates the ocular version of witnesses. He pleaded to dismiss the appeal.

6. On hearing both counsel and perusing evidence available, we are of the view that correctness of view taken by the learned Sessions Judge regarding three pertinent questions are to be considered by us as far as A2 is concerned. Firstly, whether trial Court is justified in holding that the death of Suresh was a homicide. Secondly, whether the conclusion arrived at by the trial Judge that death of Suresh was caused by accused is correct in the facts and circumstances of this case. Finally, whether Court below is vindicated in concluding that accused including A2 acted in furtherance of their common intention as alleged by the prosecution.

7. Evidence adduced by prosecution, in brief, are as follows:

PW1 and PW2 are cited as occurrence witnesses. PW3 deposed regarding alighting of A1 and A2 from bus at a place called Olari. Crl.Appeal No.757/15 -:6:- PW4 is the elder brother of deceased. He identified MO2 to MO5 clothes found on the body of deceased. Ext.P2 is the First Information Statement (for short 'FIS') given to the police by his father who is dead. He identified the signature of his father in the FIS. PW5 is an attestor to Ext.P3 inquest report. PW6 is an attestor to Ext.P4 recovery mahazar prepared at the time of seizure of MO1 knife at the instance of A1 from bushes at Olari. PW7 is the Village Officer who prepared Ext.P5 scene plan. PW8 Sankarankutty is a police personnel attached to the office of C.I. of Police, Thrissur West. He put his signature in Ext.P1 as a witness. He is an attestor to Ext.P7 arrest memo of A1. PW8 is also an attestor to Ext.P4 seizure mahazar of MO1 knife. Based on Ext.P1 FIS given by the father of the deceased, PW9 who is the then S.I. of Police, Anthikkadu Police Station, registered Ext.P8 First Information Report (for short 'FIR') on 21/03/2010. PW10 is the then Deputy Police Surgeon, Medical College Hospital, Thrissur who conducted autopsy of deceased Suresh on 22/03/2010. Ext.P9 is the post-mortem certificate issued by him. Ext.P10 is the chemical analysis report from FSL regarding blood collected from the deceased. PW11 is the Investigating Officer who prepared Ext.P1 scene mahazar as the place of occurrence Crl.Appeal No.757/15 -:7:- was shown to him by PW1. MO6 is a packet containing blood- stained soil. Ext.P11 is the report filed by PW11 for intimating name and address of accused. He effected the arrest of juveniles also. PW12 succeeded PW11 and continued investigation. He arrested A2 on 24/03/2010 at 09.00 a.m. from near Newcastle Bar, Ottupara. Ext.P6 is the arrest memo and Ext.P12 is the report revealing full particulars of A2. Ext.P13 is the arrest intimation of A2. Thereafter, on 10/06/2010 at 06.00 p.m., A1 was arrested from Ottappalam railway station. Ext.P7 is the arrest memo and Ext.P17 is the telegram receipt received for sending intimation of arrest of A1. Ext.P20 is the medical certificate obtained for A1 after his arrest. Based on the disclosure statement of A1, MO1 knife was recovered from the bush in a plot in Olari and Ext.P4 is the mahazar for the same. PW6 and PW8 are attestors to it. Ext.P15 is filed to disclose the details of A1. Exts.P16 and P18 are the property list. Ext.P19 is the forwarding note submitted to send MO1 to MO6 for chemical analysis. He completed investigation and laid charge-sheet.

8. Coming to the first question, there is sufficient evidence to hold that Suresh met with a homicidal death. Ext.P3 is the inquest report prepared by PW11 on 22/03/2010. PW10 Crl.Appeal No.757/15 -:8:- Dr.Hitesh Sankar conducted autopsy of the deceased on 22/03/2010 from 12.00 p.m. to 01.30 p.m. He deposed that he noted the following ante-mortem injuries on the corpse of the victim:

"1. Abrasion 11x4.5 cm on right side of forehead and head inner margin 4 cm outer to midline and 4 cm above eyebrow.

2. Abraded contusion 5x1cm on left side of face, just below left ear, oblique, upper inner edge 3 cm outer to midline and 0.5 cm below lower eyelid.

3. Abrasion 2x0.2 cm on left side of forehead, inner end 5 cm outer to midline and 1.5 cm above eyebrow.

4. Abraded contusion 2x1x0.1 cm on inner aspect of lower lip across the midline corresponds to central incisors.

5. Contusion 3.5x2x0.5 cm on inner aspect of upper lip, across the midline corresponds to central and lateral incisors with contusion of Phrenulum of upper lip.

6. Incised wound 2.5 cm long with 0.5x1.5 cm gaping on transversely placed on right side of chest inner end at midline and 5 cm below suprasternal notch, inner end was sharply cut and outer end square. Right lung normal pale. Underneath this injury subcutaneous tissue found cut over an area 2x1 cm with infiltration of blood over an area 7x2 cm.

7. Incised wound 1.8cm long on left side of front of chest transversely placed inner edge 1 cm outer to midline 0.5 cm below collarbone. Inner end was sharply cut, outer end square.

Underneath this injury subcutaneous tissue and intercostal Crl.Appeal No.757/15 -:9:- muscles in between 1st and 2nd rib were found cut (2.5x0.5 cm) with infiltration of blood around.

8. Incised wound 2 cm long, oblique on left side of front of chest lower inner edge 1.5 cm outer to midline and 8.5 cm below collarbone, inner end was blunt, outer end sharply cut.

Underneath this injury, subcutaneous tissue and intercostal muscles cut for 2x0.5 cm in between 2 nd and 3rd rib was infiltration of blood around.

9. Superficial incised wound 1 cm long on left side of front of chest oblique, lower inner end 4.5 cm outer to midline, 6 cm below collarbone.

10. Incised wound 1.8 cm long on left side of front of chest, oblique inner end 5 cm outer to midline, 4.5 cm below collarbone. Inner end sharply cut and outer end square.

Underneath this injury, subcutaneous tissue muscle and upper border of 2nd rib (2 cm long) was found cut partially with infiltration of blood around.

11. Incised wound 1.5 cm long, transverse on front of left chest inner end 10 cm outer to midline, 4.5 cm below collar bone, inner end was sharply cut, outer end was blunt.

12. Incised wound 1.5 cm long oblique on outer side of left side of chest, outer upper end was 17 cm outer to midline and 22cm below collarbone (13 cm below anterior axillary fold).

13. Incised wound 4 cm long on back of upper part of left side of chest, inner end 1 cm outer to midline and 11 cm below root of neck.

14. Incised penetrating wound 2.5 cm long on back of left side of chest oblique, lower inner end 5.5 cm outer to Crl.Appeal No.757/15 -:10:- midline and 15.5 cm below shoulder, inner end was sharply cut and outer end was blunt.

Underneath this injury, the wound entered chest cavity by cutting transversely the subcutaneous tissue and muscle fibers and upper border of 7 th rib (2x0.1 cm). The wound had also cut the posterior surface of lower lobe of left lung (2.2x1x0.5 cm) and the anteriolateral surface of descending aorta (2cm) long transversely in its full thickness. The wound was directed forwards and downwards and to the right. The thickness of skin and subcutaneous tissue was 1 cm and that of rib was 0.8 cm. Total minimum depth of wound 2.3 cm. Left lung collapsed. Chest cavity (left) contained 2 liters of blood.

15. Incised wound 1.8cm long on back of left chest, transverse inner end 3 cm outer to midline, 24 cm below shoulder.

16. Incised wound 1.5 cm long on back of left chest, inner end 1 cm outer to midline, 27 cm below root of neck.

17. Incised wound 3.5 cm long and 1 -1.5 cm gaping on back of left chest transverse, inner end 11 cm outer to midline, 20 cm below shoulder.

Injury Nos.14, 15, 16 and 17 were placed over an area 16x14 cm on back of left side of chest.

18. Superficial incised wound 2.5x 1cm on back of left shoulder.

19. Superficial incised wound 2x1 cm on back of left shoulder 4 cm outer to injury No.18."

PW10 is of the opinion that death of Suresh was due to incised penetrating wound sustained to back of chest (injury no.14). According to him, MO1 knife can be used to cause injuries noted Crl.Appeal No.757/15 -:11:- as Nos. 6 to 19 in Ext.P9. Injury no.14 is sufficient in the ordinary course of nature to cause death. Medical evidence adduced read with ocular version would show that deceased met with a homicidal death. Court below is right in arriving at the said finding.

9. Next question to be addressed is whether accused inflicted the injuries that led to the death of victim as alleged by the prosecution. PW1 and PW2 are occurrence witnesses. PW3 also deposed post-incident circumstances showing light on the crime. PW1 Sajeesh deposed that he was studying in Kerala Varma College for B.A. Philosophy course. The incident happened on 21/03/2010 at about 07.15 p.m. on the road leading to Parakkad Ayyappan temple from Kunnathangadi centre. Himself and deceased are childhood friends. On the relevant day which was a Sunday, PW1 was on his way to purchase provisions for his domestic use. He saw his friend Siju also there. Super Market was not open at that time. Hence, he did not buy articles. He came to know that a fight was taking place. Himself and Siju (CW4) proceeded to the said place. There he saw four people beating one person, i.e., Suresh. On sustaining hit, Suresh fell there. He again stood up. One among the aggressors had a knife and it was Crl.Appeal No.757/15 -:12:- Alex (A1). The person who was standing in front, i.e., Sanoop (A2) took knife from Alex. Sanoop stabbed Suresh on front and both sides of chest of Suresh. Thereafter, Alex took knife from Sanoop and stabbed on the back of Suresh once. Thereafter, they waved knife towards those who gathered there. A bus came there at that time. Three of them got into the bus and left. One person ran towards west. Suresh sustained stab injuries on chest, both sides of abdomen and on the back. Blood came out heavily. Suresh was taken to the West Fort Hospital, Thrissur in an autorickshaw. By the time they reached there, Suresh was dead. According to PW1, Thrissur-Kanjani road lies east-west. Thrissur is on the eastern side. Kanjani is on the western side. Kunnathangadi junction is a common point of roads leading to Paraykkad, Thrissur and Kanjani. The road which leads to Paraykkadu is towards north. Left side of the said road are shops. Opposite to the bakery is Mariyam Medicals. Near to Kukoo Bakery, there are five other shops. The said bakery was open. Other five shops were closed. Since it was Sunday, there was street light at centre. Sufficient light was available there. Light was available from Kukoo bakery and nearby houses. PW1 also stated that he was present at the time of inquest and he had shown place of Crl.Appeal No.757/15 -:13:- occurrence to police. He had seen police collecting blood-stained soil from the place of occurrence. He identified MO1 knife as the weapon used to stab Suresh. He also identified A1 and A2 as assailants in Court. According to PW1, there is a reason for the act of accused. A1 was involved in ganja use and pick pocketing. Suresh and others protested the same. He identified MO2 and MO3 as dress of the deceased. During cross-examination, he stated that he is a worker of SFI, a student wing of Communist Party of India (Marxist). He denied the suggestion that the case is politically motivated. Apart from some omissions which are not material, nothing is brought out in evidence to discredit his version.

10. PW2 Savin deposed as under: He resides in East Paraykkadu. He is a carpenter by profession. Deceased was his friend. The incident took place on 21/03/2010 at 07.15 p.m in front of Kukoo bakery which is situated between Kunnathagadi Junction and Parakkadu. It happened on the road. Himself and Suresh were talking to each other. After sometime, by about 07.10 p.m., both of them parted. As he was walking towards his house, he heard a huge commotion. As he turned around, he saw Ajoy, Sachin, Sanoop (A2) and Alex (A1) hitting and beating Crl.Appeal No.757/15 -:14:- Suresh. Alex (A1) was having a knife in his hand at that time. Sanoop (A2) took that knife from Alex (A1) and stabbed Suresh three to four times. Thereafter, Alex took the knife from Sanoop and stabbed on the back of Suresh. On getting stabbed, Suresh started crying and there was bleeding. He fell on the road. His shirt and dhothi were stained with blood all over. As PW2 and others approached to prevent the attack, Alex (A1) waved knife and threatened all of them. A bus by name 'Kiran' was coming from Kanjani and A1, A2 and Sachin got into it and left the place. One person ran towards west. Ragesh, Saju and Saji took Suresh who fell down on the road, to hospital in an autorickshaw. After the incident, PW2 went to his house. Later, by 09.30 p.m., he came to know that Suresh succumbed to his injuries. PW2 is an attestor to Ext.P1 scene mahazar. Regarding the lie of the place, availability of light and motive for the crime, PW2 deposed in tune with PW1. He identified A1 and A2 in Court. He also identified MO1 as the knife used by accused to inflict harm on Suresh. In cross-examination, he reiterated that he had seen the incident. PW2 stated that he do not remember whether he had stated to police that A2 was involved in ganja or pick-pocketing. In re-examination, he stated that Kukoo bakery is situated at the Crl.Appeal No.757/15 -:15:- corner of the Junction. Some omissions were also brought out which are not material.

11. PW3 Sudhakaran deposed that he is a headload worker and he is residing at Chettupuzha. On 21/3/2010 at around 7.30- 8.00 p.m, he alighted in a bus from Chettupuzha. During the journey, from the backside of the bus, he heard a noise. There were two to three people. As the bus reached Olari Centre, they alighted from the bus. There was blood on their dress. Among them two are the accused. He identified A1 and A2. The name of the bus was 'Kiran'. During cross-examination he stated that he is a member of CITU which is a trade union of CPI(M). Ext.D1 is marked through him. Though he was cross-examined at length, nothing material is brought out in his evidence to contradict his version in the chief examination. He further stated that since he noticed blood in the dress, he took attention of the accused.

12. Learned Senior counsel cited the following circumstances to show that A2 cannot be held responsible for murder, even if this Court is inclined to believe the version of so called occurrence witnesses:

i. Injury no.14 is the fatal injury as per medical evidence adduced by the prosecution. Going by the evidence of PW1 Crl.Appeal No.757/15 -:16:- and PW2, it can be seen that the said injury was inflicted by A1. All other injuries found on the corpse of victim are not even termed as fatal. It shows that A2 had no intention to kill or to cause such bodily injury likely to cause the death of deceased. Prosecution cannot stretch its case beyond Section 326 of I.P.C. even if it is found that the witnesses are deposing true version.

ii. 492.33 m.g of alcohol is present in 100 ml blood of the deceased. It is evident from Ext.P10 report. Opinion is rendered to the effect that the said quantity is sufficient to put the person in incapacitated state. On the other hand, PW10 who conducted autopsy did not even have a case that deceased had consumed alcohol. This contradiction is material and it shows manipulation of evidence by the prosecution.

iii. Nothing is recovered on the basis of disclosure statement of A2. There is absolutely nothing to connect him with the crime except the untrue statements of PW1 and PW2. iv. Motive for the crime is not proved by the prosecution. Prosecution suppressed the real case and presented a false case against A2.

Crl.Appeal No.757/15

-:17:-

13. Coming to the motive for the crime, it is settled law that when direct evidence is available, motive do not assume much relevance. Apart from an allegation made by PW1 and PW2, there is nothing on record to indicate that accused were involved in ganja dealing or that they were pick pockets. During cross- examination of PW2, he stated that he do not remember whether he had stated so before police. No evidence is adduced by the prosecution in the form of prior complaint or police case or court case regarding these allegations. Hence, we do not think that motive alleged is so convincing.

14. Presence of alcohol in the blood of the deceased was another area argued by the counsel. According to him, presence of 492.33 m.g. of alcohol per 100 ml blood is sufficient to cause the death of a person normally. Such a person cannot even stand properly. He placed reliance on the book written by Dr.B.Umadathan tiled 'Principles and Practice of Forensic Medicine' to support his contention. Ext.P10 which was not handed over to accused earlier shows that the incident cannot happen the way prosecution puts it. To address this argument, it is necessary to analyze the evidence of PW10 who conducted autopsy of Suresh. As already elaborated, PW10 in his evidence Crl.Appeal No.757/15 -:18:- stated that death of Suresh was due to incised penetrating wound sustained to back of chest (injury no.14). Said injury is sufficient in the ordinary course of nature to cause death. According to PW10, viscera and blood were presented for chemical analysis. Ethyl alcohol was detected from blood and viscera. Blood contained 492.33 m.g. of alcohol per 100 ml of blood. It is sufficient to put the person in incapacitated state. Ext.P10 is the chemical analysis report he obtained from FSL. Blood group of victim is found to be A+ve. The witness was recalled and subjected to further cross-examination. PW10 admitted that he had not conducted any research in alcoholism. He denied the suggestion that Principles and Practice of Forensic Medicine by Dr.Umadethan is an authority on alcoholism. According to PW10, each case would vary. PW10 suggested books written by foreign authors like Bernard Knight and Encyclopedia in Forensic Medicine in 4 volumes would tell more about alcoholism than the book written by Dr.Umadethan. He also mentioned about a book written by Dr.Narayan Reddy and that by Dr.Parik as books which speak about alcoholism in detail. Those books are available in PW10's library. By referring to Pagse 502 to 508 and 510 from the First edition of Umadethan's book, it was suggested by Crl.Appeal No.757/15 -:19:- defence to PW10 whether he would agree with the content in the book that a person having consumed alcohol between 300-400 m.g. is described as a person drunk and a person having consumed alcohol more than 400 m.g. will be dead. PW10 stated that he disagree. By referring to the next page of the said book itself, PW10 replied that in the last paragraph with sub-heading 'Death', it is written, "Death due to acute alcoholism can occur due to respiratory paralysis when the blood alcohol concentration is above 400 m.g. %. There is considerable variation in the individual reaction towards alcohol." Dr.Parik, another Indian author of repute has stated that recovery has been reported in a person whose blood alcohol concentration was 760 m.g %. PW10 further added that acute alcoholism rarely causes death. Referring to page 510 of Dr.Dethan's book, learned defence counsel asked PW10 whether he would agree with statements "A person having consumed alcohol between 150 and 200 m.g. % is described dazed and a person having consumed alcohol between 200 and 250 m.g. % is described as dejected person." PW10 replied that there are considerable variation in individual reaction towards alcohol and it depends on habit of person. A specific suggestion was put to PW10 that the person died due to Crl.Appeal No.757/15 -:20:- excessive consumption of alcohol which PW10 denied. He added that all injuries noted are ante-mortem, even though alcohol more than 400 m.g. % may cause death in some individuals. He denied the suggestion that the injuries on Suresh were not ante- mortem. Another suggestion was put to PW10 that the person was not in a position to stand, run or engage in scuffle at the time he sustained injuries, for which PW10 replied that in the case at hand, it is possible. He can run. He can stand and there were multiple injuries on his body other than injury no.14 which suggests a history narrated by the learned lawyer.

15. Evidence of PW10 is categoric as far as cause of death of Suresh is concerned. PW10 completely ruled out death due to alcoholism. Injury no.14 alone is sufficient in the ordinary course of nature to cause death of the victim. Even assuming the victim consumed alcohol, it would not affect the case of the prosecution much in the particular facts and circumstances of this case. PW10 further stated that the victim was able not only to stand but can even run. Injuries sustained by him were possible as alleged and were ante-mortem. Evidence of PW1 and PW2 also need to be kept in mind while analysing this point. When eyewitnesses depose an incident and medical evidence on record supports the Crl.Appeal No.757/15 -:21:- oral testimony, an unfounded defence case cannot create even a reasonable suspicion in the mind of the Court. In the case on hand, we are convinced that Suresh died due to stab injuries sustained by him as alleged and not due to alcoholism. Court below is perfectly justified in holding so.

16. Last but the most crucial question is whether accused had acted in furtherance of their common intention to kill Suresh. Of course, we are not concerned with two juveniles and A1. We are concerned only with A2 in the present appeal. Learned counsel argued that apart from injury no.14 which was the fatal one inflicted by A1, none of the injuries were fatal or serious. Even assuming all those injuries were inflicted by A2, it would not make him liable for offence of murder as he neither had intention to kill nor had intention to cause such bodily injury likely to cause death of victim. It is argued that there is no evidence to show that there was prior meeting of minds between accused. Even if the prosecution case is understood as it is, there is nothing to indicate that a common intention developed on the spot. Even if the evidence of PW1 and PW2 is believed for a moment, it would throw sufficient light to the fact that there was some scuffle and the incident happened all of a sudden and it was not a pre- Crl.Appeal No.757/15 -:22:- meditated one. According to the counsel, A2 cannot be convicted for offence under Section 302 read with Section 34 of I.P.C.

17. PW2 deposed the incident as follows: "The incident took place on 21/03/2010 at 07.15 p.m in front of Kukoo bakery which situates between Kunnathangadi Junction and Parakkadu. It happened on the road. Himself and Suresh were talking to each other. After sometime, by about 07.10 p.m., both of them parted. As he was walking towards his house, he heard a huge commotion. As he turned around, he saw Ajoy, Sachin, Sanoop and Alex hitting and beating Suresh. Alex was having a knife in his hand at that time. Sanoop (A2) took that knife from Alex (A1) and stabbed Suresh three to four times. Thereafter, Alex took the knife from Sanoop and stabbed on the back of Suresh. On getting stabbed, Suresh started crying and there was bleeding. He fell on the road. His shirt and dhothi were stained with blood all over. As PW2 and others approached to prevent the attack, Alex (A1) waved knife and threatened all of them. A bus by name 'Kiran' was coming from Kanjani and A1, A2 and Sachin got into it and left the place. One person ran towards west".

18. PW1 deposed the incident as under: "He came to know that a fight is taking place at centre (junction). Himself and Crl.Appeal No.757/15 -:23:- Siju (CW4) proceeded to centre. There he saw four people beating one person, i.e., Suresh. On being beaten up, Suresh fell there. He again stood up. A knife was with one among the aggressors and it was Alex. The person who was standing in front, i.e., Sanoop took knife from Alex. Sanoop stabbed Suresh on front and both sides of chest of Suresh. Thereafter, Alex took knife from Sanoop and stabbed on the back of Suresh once. Thereafter, they waved knife towards those who were gathered there. A bus reached there at that time. Three of them got into the bus and left. One person ran towards west".

19. Testimonies of PW2 and PW1 when read together would show that the attack was without any provocation from the part of deceased and all the four accused came to the spot and started beating him. A2 inflicted multiple injuries first and A1 subsequently took knife from A2 and stabbed the victim. Thereafter, three of them including A1 and A2 left the place in a bus and fourth person ran from the spot. As many as 19 injuries were inflicted on the victim out of which 14 injuries were incised wounds. A1 inflicted only one injury, which is the fatal injury (injury no.14) on the back of Suresh. Both eyewitnesses do not depose or allege any overt acts against two juveniles. Hence, it Crl.Appeal No.757/15 -:24:- can be concluded that other injuries were inflicted by A2 only. The evidence of PW1 and PW2 is further corroborated by the evidence of PW3 to the extent that the accused got into a bus and escaped from the scene. Their dresses were blood stained which is deposed to by PW3. They were stated to be alighted at Olari Centre. Defence did not have a case that deceased was the aggressor. The defence does not have a case that any of the accused sustained any injuries in the incident. Moreover, presence of alcohol in high dose in the blood of deceased would further suggest that at the time of incident, deceased might be too weak to resist the aggression. Presence of all accused on the spot is proved beyond doubt. MO1 knife, a dangerous weapon was in the possession of accused. Of course, weapon is recovered at the instance of A1 and it can be used against him only as incriminating piece of evidence. But ocular, medical and other evidence prove beyond reasonable doubt that accused herein committed the offence. Evidence reveals that the appellant/A2 had inflicted several injuries with the knife on the deceased. A1 thought that it was not enough and inflicted the fatal blow. It reveals that they entertained a common intention to commit murder of Suresh, Hence, we have no difficulty to conclude that Crl.Appeal No.757/15 -:25:- A1 and A2 acted in furtherance of their common intention to kill the deceased. Court below is justified in convicting A2 for offence under Section 302 read with Section 34 of I.P.C. No interference is warranted.

The appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                           N.ANIL KUMAR

Rp               //True Copy//                 JUDGE

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